The fines under this Act are to be given to the Benevolent Asylum in the district, and, if there be not any such, to the Benevolent Asylum in Sydney. See 7 & 8 G. IV., c. 31, s. 27; 11 Vic., No. 29, and 2 Vic, No. 23; and see 66 Fines," post.

S. 18 Vic., No. 9, s. 1. [Two Justices].-(2) Aggravated Assault upon a Female, &c.-Any person assaulting any female whatever, or any male child whose age shall not, in the opinion of the Justices, exceed 14 years, if the assault is of such an aggravated nature that it cannot in their opinion be sufficiently punished under the provisions of the statute 9 G. IV., c. 31. See supra, p. 24.

[MEM.-A conviction under this Act will "be a bar to all future proceedings, civil or criminal, for or in respect of the same assault." (18 Vic., No. 9, s. 1).]

P. Impr., with or without h. 1., for not exc. 6 cal. m., or fine not exc. (with costs) £20, and, in default of payment, impr., with or without h. 1., for not exc. 6 cal. m., unless sooner paid: And, if the Justices think fit, to be bound to keep the peace and be of good behaviour for not exc. 6 cal. m. from the expiration of sentence, without surety. (z)

As to assaults on constables, see, post, "Police," (19 Vic., No. 24, s. 18; 2 Vic., No. 2, s. 8).

F. 1 Vic., c. 85, s. 4. (A) Bail disc.-(1) Shooting at any person,

67; 5 C. B., 533). This may be done, it is conceived, when the complainant does not appear. By a very recent case, (Hancock v. Soames, 28 L. J. M. C., 196), it is decided that the granting a certificate under 27 s. of 9 G. IV., c. 31, is a ministerial, and not a judicial act. If the Magistrate finds either of the alternatives stated in s. 27, he is bound to dismiss the complaint, and having dismissed the complaint, he is bound to grant a certificate without any application for it having been made; and (semble) he may grant it at any time after the complaint has been dismissed, even although in the absence of the plaintiff'; (and see Costar v. Hetherington, Ib., p. 198).

(Y) Penalty, several, on each Offender.—Sureties].-The penalty in cases of assault can be imposed on each offender, (Morgan v. Brown, 4 A. & E., 515), where more than one; but the Justices cannot order them to enter into any recognizance, either with or without sureties, to keep the peace for any given period, in addition to the penalty, for that would be a superadded punishment for the assault, which they cannot impose, their power being exhausted by the infliction of the fine. (J. Stone's Practice, 304).

(z) Recognizance].-A doubt has been entertained whether the Justices can do more, under this section, than call upon the offender to enter into his own recognizances to keep the peace, and this doubt apparently arises from the fact, that in some statutes it is expressly said that, under certain circumstances, a person may be required to find sureties, (see, e. g., 17 Vic., No. 31, ss. 22, 23); but it is apprehended that the binding mentioned in the statute must mean an effectual binding. Now, the only way in which a person can be bound in his own recognizance is, by entering into a (supposed) bond to pay a certain sum of money, the condition of such bond being the performance of a certain act, (e. g., keeping the peace and being of good behaviour for six months). If the condition is not kept, the bond is forfeited, and the penalty may be enforced by distress on the goods and chattels of the obligor. In the case, however, of a person who has avowedly no goods or chattels, (as, e. g., a pauper or a married woman), such a binding by personal recognizances would be wholly ineffectual and absurd. For the proceedings on recognizance, see "Recognizance," post, and s. 2 of 18 Vic., No. 9.

(A) By s. 5 of 16 Vic., No. 17, if, upon the trial of an indictment for these offences, the jury are not satisfied that the defendant is guilty of the felony charged,

The general rule as to arrests is, that no person is justified in arresting any of the Queen's subjects unless there be a breach of the peace continuing, or unless he has reasonable ground to believe that a breach of the peace which has been committed will be renewed. (Price v. Seely, 10 Cl. & Fin., 28). It is also clear that any bystander may and ought to interfere to part those who make an affray, and to stay those who are going to join in it; further, he may arrest the affrayers, and detain them until their heat be over, and then deliver them to a constable. (Timothy v. Simpson, 1 Cr., M. & R., 757). So, if a person comes into a house, or is in it, and makes a noise, and disturbs the peace of the family, although no assault has been committed, the master of the house may turn him out, or call in a policeman to do so, (Shaw v. Chairitie, 3 Car. & K., 21, 25); and if a man stations himself opposite to another's house, making a disturbance, exciting others to disturbance and riot, and obstructing the public way, these are facts which may well amount to such a breach of the peace as justifies an arrest. (Webster v. Watts, 11 Q.B., 311, 324). It seems clearly established, however, that a private individual, who has seen an affray committed, is not justified in giving in charge to a policeman, who has not, after the affray has entirely ceased, after the offenders have quitted the place where it was committed, and when there is no danger of its renewal. (Baynes v. Brewster, 2 Q.B., 375). Inasmuch, moreover, as the power of the constable at Common Law to take into custody, upon the information of a private person, under such circumstances must be correlative with that of the latter to give in charge, it follows that the constable will not be justified in taking a party, designated as the offender, into custody upon such information. (Timothy v. Simpson, 1 Cr., M. & R., 761). A private individual, also, being present at the time a felony is being committed, may legally and ought to arrest, or aid in arresting, the offender. He may even break into a private house to prevent the commission of a felony, (Handcock v. Baker, 2 B. & P., 260); or, a felony having been committed, he may give in charge the guilty party to a policeman. Mere suspicion that a particular person has committed a misdemeanor will not, however, justify the giving him into custody without a warrant. (Fox v. Gaunt, 3 B. & Ad., 798).

Again, an arrest and imprisonment may be justified on this ground, that a felony having been committed, there was reasonable and probable cause to suspect and accuse, and therefore to arrest and imprison, a man with the view of charging him with the offence; whether the facts are sufficient to ground a suspicion in the mind of a reasonable man, is a question of law.

Although it is clear that a private individual cannot arrest upon bare suspicion, a constable may do so. (Beckwith v. Philby, 6 B. & C., 639). There is this distinction between the two parties just named: in order to justify the former in causing the arrest of a person, he must not only show reasonable ground of suspicion, but must prove that a felony has actually been committed; whereas a constable, having reasonable ground to suspect that a felony has been committed, is authorized to detain the party suspected until inquiry can be made by the proper authorities. (S. C.)

Special power to arrest is given by particular statutes; e. g., The Police Acts; The Vagrant Act; The Arson Act, (9 & 10 Vic., c. 25, s. 13);

The Enclosed Lands Act, (18 Vic., No. 27, s. 3); The Impounding Act, (19 Vic., No. 36, s. 31); The Better Prevention of Offences Act, (16 Vic., No. 17, ss. 9 & 10), &c. See under the several titles in this work. S. 10 of 16 Vic., No. 17, enacts "That it shall be lawful for any person whatever to apprehend any person who shall be found committing any indictable offence in the night, and to convey him, or deliver him to some constable or other peace officer in order to his being conveyed, as soon as conveniently may be, before a Justice of the Peace, to be dealt with according to law."

General Advice].-Inasmuch as a private individual who directs a police officer to take a person into custody may, by so doing, render himself liable to an action for false imprisonment, (Hopkins v. Crowe, 7 C. & P., 373; see Gosden v. Elphick, 4 Ex., 445), it is safer, in any doubtful case, for a private person, especially when time will allow, rather than thus acting for himself, to apply to a Magistrate for a warrant; because, whenever the arrest is under a warrant, the party arrested cannot sue in trespass the party who makes the charge, nor can he sustain an action on the case against him, although it should turn out that no offence has been committed; unless he can prove that the party who obtained the warrant acted maliciously and without probable cause. (West v. Smallwood, 3 M. & W., 418. See also Brown v. Chapman, 6 C. B., 365).

Constable. See "Constable"].-The irresponsibility of a constable in respect of an act done by him officially, affecting the liberty of the subject, is much greater than that of a private individual. "A constable hath great, original, and inherent power with regard to arrest; he may without warrant arrest anyone for treason or felony, or a breach of the peace committed in his presence, and carry him before a Justice; and in case of a reasonable charge of treason or felony, or a dangerous wounding whereby felony is likely to ensue, or upon his own reasonable suspicion that any such offences have been conmmitted, he may arrest the party so charged or suspected, and for that purpose is authorized (as upon a Jus tice's warrant) to break open doors; and will be justified in so doing, even though it should turn out that the party was innocent, or even that no such offence had been committed." (4 Steph. Com., 412).

Where a particular statute authorizes a constable to take into custody, without warrant, anyone offending against its provisions within view of such constable, (as, for instance, the Cruelty to Animals Act, 14 Vic., No. 40, s. 5), it will be requisite for the officer's justification to show that he has acted in strict conformity with the Act. Where a constable has

done an act in obedience to a warrant of a Magistrate, he cannot be sued, but only the Justice who has exceeded his jurisdiction. (See s. 23 of 16 Vic., No. 33; and "Constable," post). Where a constable acts beyond his authority, he is liable for the excess; or if he exceeds the reasonable bounds of what is required for the due performance of his duties, he becomes a wrongdoer. (Wright v. Court, 4 B. & C., 96).

As to the meaning which the Court puts on the words found committing, (used in various statutes), see Simmons v. Millingen, (2 C. B., 524), where it was held not enough to show that the party arrested has committed the offence, however recently; Maule J. says: "These words only

apply where the offender is actually in the course of committing the offence, to prevent the continuance of a nuisance; but he cannot justify breaking doors to do it." (Smith v. Shirley, 3 C. B., 142).

A Justice].-A Justice of the Peace, without warrant, may himself apprehend, or cause to be apprehended, by word only, persons committing a felony or breach of the peace in his presence.

An arrest is usually made by actually laying hands ou the party, and detaining him; but if the officer or other party say, "I arrest you," and the party acquiesce and go with him, this is a good arrest. Secus, if, instead of submitting, he had escaped. (Russen v. Lucas, 1 C. & P., 153). In making the arrest, the constable or party making it should actually seize or touch the offender's body, or otherwise restrain his liberty. The mere requiring the party to go before the Justice is no arrest. (6 B. & C., 528). When the arrest is without warrant, it is sufficient for a constable to state merely that he arrests in the Queen's name; but a private person, if required, must, it should seem, state the cause of the arrest.

The party arrested should not be treated with any unnecessary harshness, beyond what is actually necessary for his safe custody; and therefore it was held that a constable had no right to handcuff a person whom he has arrested on a suspicion of felony, unless he have attempted to escape, or it be necessary to prevent him escaping. (Wright v. Court, 4 B. & C., 596).

ARSON.

F. 1 Vic., c. 89, s. 2. Bail disc.-(1) Setting fire to any dwellinghouse, any person being therein.

P. Death.

F. Id., s. 3. Bail disc.-(2) Setting fire to any church or chapel, or dissenting chapel, or any house, stable, coach-house or out-house, warehouse, shop, office, mill, malt-house, hopoast, barn or granary, or to any erection or building used in trade.

P. Tr. life-15 yrs.; or impr. not exc. 3 yrs., h. 1., s. c., and w.; or (if male) h. 1. on roads 15-7 yrs.; (if female), impr. 7-3 yrs., h. 1. and s. c.

F. 1 Vic., c. 89, s. 4. Bail disc.-(3) Setting fire to, casting away, or in anywise destroying any ship or vessel, with intent to murder.

P. Death.

F. Ib., s. 6. Bail disc.-(4) Setting fire to or destroying ship or vessel, whether incomplete or not, or with intent to prejudice owner or goods, &c.

P. Tr. life-15 yrs.; or impr. not exc. 3 yrs., h. 1. and s. c.; or (if male) 15-7 yrs. on roads; (if female), 7-3 yrs. impr., with h. or 1. 1. and s. c. F. Ib., s. 9. Bail disc.—(5) Setting fire to any mine of coal or cannel coal.

P. The same.

F. Ib., s. 10. Bail disc.-(6) Setting fire to any stack of corn, grain, pulse, tares, straw, haulm, stubble, furse, heath, fern, hay, turf, peat, coals, charcoal, or wood, or any steer of wood.

P. The same.

F. 7 & 8 G. IV., c. 30, s. 17. Bail disc.-(7) Setting fire to any crop of corn, grain, or pulse, whether standing or cut down, or to any part of a wood, coppice, or plantation, or to any heath, gorse, furse, or fern, wheresoever growing.

P. Tr. 7 yrs.; or impr. not exc. 2 yrs., h. 1., s. c., and w.; or (if male), 5-3 yrs. on roads; (if female), 3-1 yrs. impr., h. or 1. 1. and s. c.

F. 9 & 10 Vic., c. 25, s. 7, (adopted by 14 Vic., No. 16). Bail disc.(8) Attempting by any overt act to set fire to any building, vessel, or mine, or to any stack or steer, or to any vegetable produce of such kind, and with such intent, that, if the offence were complete, the offender would be guilty of felony, although such building, &c., be not actually set on fire.

P. Tr. not exc. 15 yrs.; or impr. not exc. 2 yrs., h. 1. and s. c., and w. (if offender under 18); or (if male) 10-5 yrs. on roads; (if female), impr. 5-2 yrs., h. or 1. 1. and s. c.

F. Ib., s. 6. (T) Bail disc.-(9) Placing or throwing in, into, upon, against, or near any building, any gunpowder or other explosive substance with intent to damage or destroy same, whether or not any explosion take place, &c.

P. The same.

M. Ib., s. 8. (u) Bail comp.-(10) Knowingly having in his possession,-or making or manufacturing,-any gunpowder, explosive substance, -or any dangerous or noxious thing, or any machine, engine, instrument, or thing,-with intent by means thereof to commit, or for the purpose of enabling any other person to commit,-any offence against this Act.

P. Impr. not exc. 2 yrs., with h. 1. and s. c.

F. 1 Vic., c. 9, s. 11, and 9 & 10 Vic., c. 25, s. 10. Bail disc.-(11) Accessories after the fact.

P. Impr. not exc. 2 yrs., h. 1. and s. c.

F. 16 Vic., No. 17, s. 6. Bail disc.-(12) Setting fire to any station, engine-house, warehouse, or other building, belonging or appertaining to any railway, dock, canal, or other navigation.

P. Tr. life-7 yrs., or impr., with or without h. 1., not exc. 3 yrs.; or (if male) 15—5 yrs. on roads; (if female), 7—2 yrs. impr., h. or 1. 1. and

S. C.

F. Ib., Bail disc.—(13) Setting fire to any goods or chattels being in

(T) Apprehension without warrant].-9 & 10 Vic. c. 25, s. 13. Any constable or peace-officer may take into custody, without a warrant, any person whom he shall find laying or loitering in any highway, yard, or other place, during the night, and whom he shall have good cause to suspect of having committed, or being about to commit, any felony under this Act, and may detain such person, and bring him before a Justice; but he cannot be detained after noon of the following day without being brought before a Justice. (S. 14).

(U) Search Warrant].-S. 12 (of same Act). A Justice, on cause assigned upon oath, may grant a warrant to search any house, shop, cellar, yard, or other place, in which any gunpowder, or other explosive, dangerous, or noxious substance, is suspected to be made or kept for the purpose of being used in committing any offence under the Act. (See Forms, Part II.)