CT. OF APP.]

ful or not, but the leaving it unfenced makes the whole act wrong: (Newton v. Ellis, 24 L. J., 337, Q.B.). [BRETT, J.-In that case the surveyor was contractor, as John Greenhalgh was in this case. The LORD CHANCELLOR.-Was the contract in writing? No, it was not. Thirdly, the defendant acted without any authority from anyone. He set out the levels and authorised John Greenhalgh to do the work. Foreman v. Mayor of Canterbury (L. Rep. 6 Q. B. 214) is an authority for the proposition that the Board of Health, when surveyors of highways, are not relieved from responsibility for the negligence of their servants. Couch v. Steel (3 E. & B. 402), and Atkinson v. Newcastle Waterworks Company (L. Rep. 6 Ex. 404), were referred to.

Edwards, Q.C. (Pope, Q.C. and Ridley with him), for the respondent, the surveyor.-This is an attempt to render a surveyor for the first time hable when he has not interferred personally. This surveyor, though paid by salary, is precisely in the same position as a surveyor appointed under sect. 6 of 5 & 6 Will. 4, c. 50. This was not an unauthorised interference with the highway, and the duty of the surveyor is to ascertain what is to be done, and he sets it out. [The LORD CHANCEllor. -Assuming here that the lighting should be done, if the contract shows that the defendant contracted with John Greenhalgh to light the place, John Greenhalph would be liable. You must, therefore, show that defendant did so contract with John Greenhalgh.]

The LORD CHANCELLOR (Cairns). In this case, although the conclusion at which I have arrived, and I believe the rest of the court have arrived, does not agree with the judgment of the Court of Queen's Bench, yet I am not sure there is any difference in point of law between our decision and theirs. The first question here is, as it generally is, one of fact. What were the steps taken by the defendant for the performance of this work? I will assume that this alteration of the highway was a perfectly lawful act, if done in a proper way. It is found in the case that, by a resolution of the committee of management for the highways ap pointed by the vestry, it had been ordered that a part of the road about 150 yards in length should be raised, and the defendant, as such surveyor, was directed to carry out such resolution. I will assume that, if the defendant could not carry out this resolution by himself, it was perfectly lawful for him to contract in a proper manner with any third party for the execution of the work, and that if he had contracted in a proper manner to have this work, with all its incidents, properly pe:formed, he would not have been responsible for any negligence on the part of the person who contracted to perform the work. Did he then contract in proper manner with anyone for the performance of this work? For the performance of the whole work he certainly did not contract; contracted only for a performance of a part of the work. What was the part he contracted for? The case finds as follows: "The defendant stated that he set out the work and determined the levels, but had nothing to do with the paving himself, except superintending on behalf of the committee." It has been very properly admitted in argument that, for the safety of the public during the night, this part of the road should be fenced off and lighted, and otherwise protected. This work was then of a complex kind, involving four component

he

[Q.B. Div.

portions-the materials to be provided for the work; the superintendence of the work; the labour; and the fencing and lighting during the night. I have looked with considerable anxiety to see what was contracted for; I cannot find anything was contracted for except the mere labour. The materials were provided by the vestry, the superintendence was provided by the vestry. By whom was the lighting and fencing to be provided? It might have been reasonable to have stipulated that the party who supplied the labour should also supply the lighting and fencing; but it does not appear that this was done. It seems that the surveyor did not contract for the lighting and fencing, and it seems to me that this part of the work remained with him, to provide for it as a part of the work to be done, from which not having divested himself, he therefore remains liable. On this short ground, without laying down any principle of law, and without interfering with any of the decisions, I am of opinion that the defendant continued responsible, and that, therefore, the judgment of the Court of Queen's Bench should be reversed.

Lord COLERIDGE, C.J., BRAMWELL, B., and BRETT, J. concurred.

Solicitors for appellant, Shaw and Tremellen, for P. and J. Watson, Bury.

Solicitors for respondent, Clarke, Woodcock, and Rylands, for J. A. and J. Grundy and Co., Manchester.

HIGH COURT OF JUSTICE.

QUEEN'S BENCH DIVISION. Reported by M. W. MCKELLAR and J. M. LELY, Esqrs., Barristers-at-Law.

Friday, Nov. 5, 1875.

ELLIOT (app.) v. THOMPSON AND OTHERS (resps.). Certiorari-Time-Quashing of order subject to special case-At what date time runs-13 Geo. 2, c. 18, 8. 5. By 13 Geo. 2, c. 18, s. 5, no rit of certiorari shall be granted to remove any conviction, judgment, order, or other proceedings before any justices of the peace or quarter sessions, unless such certiorari be applied for within six calendar months next after such conviction, judgment, order, or other proceedings shall be had."

On 31st Oct. 1874, certain justices of the peace made an order that the appellant should pay a sum of money to the Middlesborough Local Board. On 6th Jan. 1875, the order was quashed by the court of quarter sessions subject to a special case, which was signed by the chairman on the 1st July 1875.

Held, that an application on the part of the Middlesborough Local Board to bring up the proceeding on certiorari was out of time.

THIS was an application to bring up on certiorari all proceedings consequent upon a certain order of three of the respondents, being justices of the borough of Middlesborough, in the county of York, for the payment by the appellant to the Middlesborough Urban Sanitary authority of the sum of 571., or thereabouts, for the paving, &c., of a certain street in the said borough. The appellant had refused to pay the above sum, the works having been required to be done by him by notice

given under the 69th section of the Public Health Act 1848, and having been executed by the said sanitary authority on his failing to comply with such notice. On appeal to the court of quarter sessions, that court, on the 6th Jan. 1875, quashed the order of the justices, subject to the opinion of the Court of Queen's Bench upon a special case, which was signed on the 1st July 1875.

The order of the respondent justices bore date 31st Oct. 1874.

A. Glen for the Middlesborough Sanitary Authority (who had been made respondents to the appeal, as well as the justices) now moved for a certiorari to bring up the order of the justices, and the whole proceedings consequent thereupon. The order was quashed, subject to a case which was not signed until 1st July, so that the six months limit has not yet elapsed. The six months begin to run from the time at which the order becomes operative. [COCKBURN, C.J.-The ultimate decision is nunc pro tunc. MELLOR, J.-I do not see how you can get out of the words of the statute.] In Oke's Magisterial Synopsis, vol. 1, p. 47, it is said that the period of six months begins to run from the time when the order becomes operative, though more than six months may have elapsed since the actual making of the order, as where it has been the subject of an appeal, in which case the time would commence running from its determination. He also mentioned Reg. v. Allen (33 L. J. 98, M.C.).

Per CURIAM (Cockburn, C.J. Mellor and Quain, JJ.).—This application is out of time, and must be refused. Rule refused.

Solicitors for the applicant, Van Sandau and Cumming, for Dale, York.

Friday, Nov. 5, 1875.

ETHELSTANE (app.) v. THE JUSTICES OF OSWESTRY (resps.).

Permitting drunkenness-Evidence-Licensing Act 1872, s. 13.

A licensed person may be convicted for permitting drunkenness on his premises upon evidence that a person who had been drinking on such premises was found drunk at some distance from them. THIS WAS an application for a rule calling upon the respondents to show cause why they should not state a case for the opinion of the Court of Queen's Bench under 20 & 21 Vict. c. 43.

It appeared from the affidavit of the appellant's solicitor, that the appellant, being a licensed person, had been convicted by the respondents of permitting drunkenness on his premises within the meaning of the Licensing Act 1872, s. 13. The evidence in support of the information was this: A police constable found a labouring man drunk in a ditch, distant about 100 yards from the appellant's premises. The man himself was called as a witness, and admitted that he had visited three or four public houses upon the night in question, the appellant's house, where he had partaken of two or more glasses of whisky, being the last in order visited. The appellant was sworn, and admitted that he had served the man with liquor, but stated that he left the house, to all appearance sober, about three quarters of an hour previous to the time (11.30 p.m.) at which he was found drunk in the ditch. Upon these facts

case.

66

Willoughby, for the appellant, contended that the fact that a man was found drunk after having been on licensed premises was no evidence of his having been in a state of drunkenness on such premises, much less of the licensed person having permitted" the drunkenness within the meaning of the statute. It might be that the man had quitted the premises before the drunkenness occurred. It was for the prosecution to prove affirmatively that drunkenness had been permitted. [COCKBURN, C.J.-If a man goes into a public house sober and comes out drunk, surely that is some evidence that he got drunk within the house, and that his drunkenness was permitted by the publican.] The case was no doubt a suspicious one; but there is a broad distinction between suspicion and legal evidence.

The COURT (Cockburn, C.J., and Mellor and Quain, JJ.) were of opinion that the question was one of fact and not of law. It could not be said that there was no evidence of drunkenness having been permitted by the appellant. Rule refused.

Solicitor for the appellant, C. A. Yorke.

Wednesday, Nov. 10, 1875. COULBERT (app.) v. TROKE (resp.) Licensing Act 1874, s. 10-Bonâ fide travellerThree mile distance-" Nearest public thoroughfare "-Ferry.

By sect. 3 of the Licensing Act 1874, no licensed person may open his premises on Good Friday before 12.30 p.m., and by sect. 9, any person who sells intoxicating liquors during prohibited hours is liable to a penalty. By sect. 10, nothing in the Act contained" shall preclude a person licensed" as therein mentioned "from selling liquor at any time to bona fide travellers;" and " a person shall not be deemed to be a bona fide traveller unless the place where he lodged during the preceding night is at least three miles distant from the place where he demanded to be supplied with liquor," the distance to be calculated by the nearest public thoroughfare."

66

C.. being a licensed person within the meaning of sect. 10, supplied certain persons with liquor before 12.30 p.m. on Good Friday. Such persons had in their own boats crossed an arm of the sea, about one mile broad, to reach C.'s premises. If they had come by land they would have had to walk eight miles. The arm of the sea was usually crossed by an ancient ferry, worked by C., who took toll from all persons crossing it, whether in their own boats or in his.

Held, upon a case stated by justices that the arm of the sea was the "nearest public thoroughfare, and a conviction of C. under the Licensing Act 1874, affirmed.

THIS was a case stated under 20 & 21 Vict. c. 43, by two justices of the county of Southampton.

The respondent had laid an information against the appellant under sect. 9 of the Licensing Act 1874 (a), for that the appellant being licensed to

(a) Licensing Act 1874, s. 10, "Nothing in this Act or in the principal Act (the Licensing Act 1872) contained shall preclude a person licensed to sell any intoriosting liquor to be consumed on the premises from

Q.B. Div.1

sell exciseable liquors by retail in the Ship Inn, at Eling, in the county of Southampton, did upon Good Friday, unlawfully open his house for the sale of intoxicating liquors before 12.30 p.m. to wit, at 11.15 a.m., the same not being for refreshment to any traveller, or to any lodger in the said house.

The following facts were either proved or admitted:

1. The persons to whom the refreshment was supplied resided and had slept the previous night in the town of Southampton.

2. The appellant's licensed house is situate at Crackmore Hard, on the western shore of the Southampton Water, and on the opposite shore to Southampton, and is distant from the town of Southampton, by water, rather over a mile, and by the nearest road, eight miles.

3. From Southampton to Crackmore Hard is an ancient ferry, appurtenant to and held with the appellant's house, plied at irregular intervals by his boats, and a toll is claimed by him from all passengers landing at the Hard from boats belonging to him.

4. All persons landing at the Hard in other than the ferry boats have to pay a toll to the appellant.

3. All persons walking, driving, or riding, from the town of Southampton to Crackmore Hard, must go round by road, a distance of eight miles.

6. The persons found in the appellant's house and supplied by him with refreshments on the Good Friday in question, had crossed the water from Southampton to the said house in their own boats.

On the part of the appellant it was contended that the persons to whom refreshment was supplied were bona fide travellers, as, unless by crossing the Southampton water, an estuary of the sea, the distance between the two places by the nearest public thoroughfare would very considerably exceed three miles. But the justices being of opinion that the persons supplied with refreshment by the appellant, having crossed the water and landed at a ferry at which the public were entitled to land on payment of a toll, had used a public thoroughfare for the purpose of reaching the appellant's house, convicted the appellant in the mitigated penalty of ten shillings and costs.

...

The question of law, therefore, is, whether persons crossing the Southampton water in their own private boats, and landing at a ferry, at which the public are entitled to land on payment of a toll, have come by a public thoroughfare within the meaning of sect. 10 of the Licensing Act 1874, the appellant's house being also accessible by a public highway. If the court be of opinion that the said conviction was legally and properly made, then the selling such liquor at any time to bona fide travellers, or to persons lodging in his house. A person for the purposes of this Act and the principal Act shall not be deemed to be a bona fide traveller unless the place where he lodged during the preceding night is at least three miles distant from the place where he demands to be supplied with liquor, such distance to be cal ulated by the nearest public thoroughfare." Sect. 8 of the Act fixes the closing hours for licensed premises, and sect 9 imposes a n-xmum penalty on any person selling liquor during suct ours. It appears to be still law that the rejection of a bona fide traveller by an innkeeper is both actionable and indietable: (See R. v. Luellin, 12 Mod. 225; R. v Ivens, 7 C. & P. 213; Kirkman v. Shawcross, 5 T. R. 17; Thompson v. Lacy, 3 B. & Ald. 283; Davies v S ruce, L Rep. 4 C. P. 172.)

[Q.B. Div.

said conviction is to stand, but if the court should be of opinion otherwise, then the said conviction is to be dismissed.

Bullen, for the appellant.-The "nearest public thoroughfare" in sect. 10 of the Licensing Act 1874, must mean the nearest available public thoroughfare-the nearest way open to all the public without payment, in the same manner as a public highway is. [QUAIN, J.-It cannot be said that the sea is not a public highway; and to cross the sea in a boat is just like driving along a road in a carriage]. If this conviction be affirmed, it will follow that persons who, not being able to afford to go by the ferry, have walked eight miles, will be deprived of refreshment.

No counsel appeared for the respondents.

The COURT (Mellor and Quain, JJ.) affirmed the conviction. The persons supplied with refreshment had come less than three miles by a public thoroughfare, so that they could not be deemed "bona fide travellers" within the meaning of the Conviction affirmed.

statute.

Solicitor for the appeilant, J. E. Coxwell, for W. Coxwell, Lymington.

June 8 and Nov. 6, 1875.

OXFORD GUARDIANS (appe.) v. BARTON (resp.) Liability for wife's maintenance-Protection order under 20 & 21 Vict. c. 85, s. 21-13 & 14 Vic, c. 101, s. 5.

Justices at petty sessions refused an application by the appellants to make an order, under 13 & 14 Vict. c. 101, s. 5, upon the respondent to maintain or contribute toward the maintenance of his wife, who was a lunatic chargeable to the appellants' Union, on the ground that a protection order, which she had obtained under 20 & 21 Vict. c, 85, s. 21, and which had not been discharged, absolved him from such liability.

Held, upon a case stated, that, under the circumstances, the respondent was liable, and that the justices were wrong.

THIS was a case stated by two justices of the peace in and for the City of Oxford, under the statute 20 & 21 Vict. c. 43, for the purpose of obtaining the opinion of the court on questions of law which arose before the said justices, as hereinafter stated.

At a petty sessions, holden at the Police Court, Town Hall, in the City of Oxford, on the 5th Jan. 1875, a complaint was preferred by the guardians of the poor within the city of Oxford, by Walter Thompson, their clerk, duly empowered by them in that behalf (the said guardians being hereinafter called the appellants), against Edward Barton (hereinafter called the respondent), under sect. 5 of the statute 13 & 14 Vict. c. 101, charging that, on the 1st. Dec. 1874, one Harriet Barton, the wife of the said Edward Barton, of Friars Entry, in the parish of St. Mary Magdalen, in the city of Oxford, being a lunatic, and being then chargeable to the united parishes within the said city of Oxford, by a certain order in that behalf of Robert Pike, Esq., one of her Majesty's justices of the peace in and for the said city, bearing date the same 1st. Dec., was on the same 1st Dec. conveyed and removed to the lunatic asylum, situate at Littlemore, in the county of Oxford, being an asylum for the maintenance of the pauper lunatics of the county of Oxford and city of Oxford,

Q.B. Div.]

where she had been confined as a pauper lunatic from thence to the date of the said complaint; that she was then insane; and that the sum of 108. 3d. was the weekly charge for her maintenance in the said asylum; and applying to the justices to make an order upon the respondent to maintain or contribute towards the maintenance of his said wife in such asylum.

The said complaint was heard and determined by the said justices, being then present, and upon such hearing the application was dismissed.

And the said justices, in compliance with an application of the appellants, and the provisions of sect. 2 of 20 & 21 Vict. c. 43, stated and signed the following case:

Upon the hearing of the said complaint, it was proved on the part of the appellants, and found as a fact, that the said Harriet Barton was, on the 1st Dec. 1874 removed to the said asylum, under an order of the said Robert Pike in that behalf, and that she was still an inmate of such asylum and chargeable to the united parishes within the said city of Oxford. It was also proved that the cost of maintenance of the said Harriet Barton, since her removal to the said asylum, had been at the rate of 108. 3d. per week.

It was admitted, on the part of the appellants, that by an order under the hands and seals of two of her Majesty's justices of the peace in and for the said city of Oxford, dated the 23rd Dec. 1873, and made under sect. 21 of the statute 20 & 21 Vict. c. 85, after reciting that it had been proved to the said justices, upon oath and otherwise, that on the 12th Oct. 1861, the said Harriet Barton was duly married to the respondent, and that afterwards, on the 17th Aug. 1871, the respondent without reasonable cause deserted her, and that she was then maintaining herself by her own industry and property, it was ordered that the earnings and property of the said Harriet Barton, acquired or to be acquired by her since the commencement of such desertion as aforesaid, should thereafter be protected from the respondent, and from all creditors and persons claiming, or who might thereafter claim under him, and that all such earnings and property should belong and should be deemed to belong to the said Harriet Barton as if she were a feme sole. And it was further admitted on the part of the appellants that the said desertion had not ceased at the date of the removal of the said Harriet Barton to the said asylum, and that the said protection order had not been discharged.

It was admitted on the part of the respondent that the said Harriet Barton was his wife, but it was contended by him that the procurement by the said Harriet Barton of the recited order ab solved him from all liability to maintain or to contribute towards the maintenance of the said Harriet Barton so long as the said order continued in force.

The justices were of opinion that the contention of the respondent was well founded, and they, therefore, dismissed the application of the appellants for the following, amongst other reasons:

First. That by sect. 21 of the statute 20 & 21 Vict. c. 85, in the case of any such order as that hereinbefore recited being made, "the wife shall, during the continuance thereof, be and be deemed to have been, during such desertion of her, in the like position in all respects, with regard to property and contracts, and suing and being sued, as she

[Q.B. DIV.

would be under this Act if she obtained a decree of judicial separation;" and that by sect. 26 of the same statute, "in every case of a judicial separation the wife shall, whilst so separated, be considered as a feme sole for the purposes of contract, and wrongs and injuries, and suing or being sued in any civil proceeding; and her husband shall not be liable in respect of any engagement or contract she may have entered into, or for any wrongful act or omission by her." That these provisions of the said 21st section could not be intended exclusively for the benefit of the wife, leaving the husband's liabilities intact; for then he might be liable for the trade debts of his wife. That the wife's status generally was intended to be that of a married woman under a judicial separation, so long as the order continued, because the 21st section would not otherwise take away the husband's ordinary marital rights, such as cohabitation. That this right was intended to be taken away appears clear, for otherwise the provisions of the 21st section for the protection to the wife would be left to the husband's discretion, and could be put an end to at any time at his option, whereas there is provision expressly made for his applying for a discharge of the order by the justices. The words used are that the wife's position in all respects shall be that of a wife judicially separated, with regard to property and contracts, and suing and being sued; thus not limiting the protection to her property and contracts, or to her "suing and being sued." But the wife could hardly be in this position unless the husband was also, for otherwise the wife's creditors would be the parties benefited, for their rights would be doubled. They would have their old rights against the husband, in addition to their new ones against the wife as a feme sole. But if the Act renders this contention inapplicable to any creditors, it does so to all creditors; and if trade creditors could only sue her as a feme sole, creditors also who supplied her with necessaries would be in the same position. In other words, the usual common law as to the wife being the husband's agent for obtaining necessaries, does not apply to a wife with a protection order, living as a feme sole. And provision is expressly made that the protection order shall only be made in case "the wife is maintaining herself by her own industry or property." This provision would be unnecessary if the husband's liability continued; and if these continued he might be prosecuted as a rogue and vagabond for being of sufficient ability to support his wife, and yet not actually maintaining her. But this criminal liability was hardly intended to apply whilst the wife was living apart from her husband as a feme sole.

Secondly. That the equitable maxim that a man cannot take advantage of his own wrong does not prevent this interpretation, because it would apply even more strongly in cases of judicial separation, and would apply most strongly in cases of absolute divorce, where the liability of the hus band would admittedly cease.

Thirdly. That on a judicial separation the husband is not liable to support his wife, or supply her with necessaries. In sect. 26 of the above Act it is provided, "That where, upon any judicial separation, alimony has been decreed or ordered to be paid to the wife, and the same shall not be duly paid by the husband, he shall be liable for necessaries supplied for her use;" clearly implying that unless alimony had been decreed or ordered,

and was left unpaid, the husband would not be liable for necesaries,

Fourthly. That the justices, under 13 & 14 Vict. c. 101, s. 5, having considered the circumstances of the present case, including their previous order for the protection of the wife's property, had power to decline, so long as such order continued, to make the husband pay any sum towards the maintenance of his wife, notwithstanding that his pecuniary position of itself might have justified such an order.

The question of law upon which this case is stated for the opinion of the court, therefore, is whether the justices had the power, so long as their previous protection order to the wife continued in force, to decline to make an order under 13 & 14 Vict. c. 101, s. 5, upon the husband, notwithstanding that his pecuniary position of itself might have justi fied such an order, and the court is humbly solicited, according to the power vested in it by statute, to remit the case to the justices, with the opinion of the court thereon, or to make such other order as to the court may seem fit.

This case came to be heard on the 8th June, before Lush and Quain, JJ.

Haselfoot argued for appellants, the guardians. -It has been held in Ramsden v. Brearley (32 L. T. Rep. N. S. 24; L. Rep. 10 Q. B. 147), that the 21st and 26th sections of this Act are to be read together, and that, for all purposes, a woman with an order of protection is in the same position as if she were judicially separated from her husband; but it does not follow that a husband, although not liable for his wife's necessaries after a judicial separation, should be absolved from this liability, which is a question between the parish and the husband, and not between the wife and the husband or his creditors. [QUAIN, J.-It would be strange if the desertion by the husband could give him protection from liability for his wife's chargeability.] The wife, with a protection order, is in the position of a feme sole only, with respect to the matters mentioned in the statutes, viz., for the purposes of property and contract, wrongs and injuries, and suing or being sued in any civil proceeding. This is an application on behalf of the ratepayers, and is not touched by the statute concerning the position of protected and separated_wives. Thus it appears from Thomas v. Alsop (L. Rep. 5 Q. B. 151), which was a decision upon 31 & 32 Vict. c 122, s. 33, containing almost the same words as 13 & 14 Vict. c. 101, s. 5.

No one appeared for the respondent, but in consequence of some doubts expressed by Lush, J., the case was directed to be re-argued before the full court.

Nov. 6.-Haselfoot again appeared for the guardians; but, after reading the special case, and the sections of the statute upon which it depends, he was stopped by the court (Cockburn, C.J., Mellor and Quain, JJ.), who said the matter seemed too clear to be argued, and directed that the justices should make the order of maintenance upon the respondent.

Judgment for appellants. Solicitors for appellants, Clarkes, Rawlins and Clarke, for T. and G. Mallam, Oxford.

[Q.B. Div.

Saturday, Nov. 13, 1875. MUNDAY (app.) v. MAIDEN (resp.) Common assault-Subsequent indecency-Aggravated nature -24 & 25 Vict. c. 100, s. 43. The appellant placed a girl of eight years old on his knee and kissed her. About a quarter of an hour afterwards, without asking her to do any thing or again touching her, he exposed his person and abused himself in her presence. The justices sentenced him to six months' hard labour for an assault of an aggravated nature on a female, under 24 & 25 Vict. c. 100, s. 43.

Held, upon a case stated, that what took place after the assault was over could not be said to render the assault one of an aggravated nature within the words of this section, and that the conviction must be quashed.

THIS was a case stated by two justices of the peace for the borough of Hanley, in the county of Stafford, under 20 & 21 Vict. c. 43, for the purpose of obtaining the opinion of the court upon the question of law which arose before them as hereinafter stated.

At a petty session of the peace, holden in and for the said borough of Hanley, on the 14th Nov. 1874, one Robert Munday, the above-named defendant, was brought before the said justices in custody, and charged upon the information of one Eliza Maiden, the informant, with having on the 12th of the same month of Nov., at the borough of Hanley, unlawfully assaulted one Martha Maiden, a child in the eighth year of her age; and the said parties respectively being then present, the said charge was duly heard by the said justices, and upon such hearing the said Robert Munday was duly convicted of the said offence; and they adjudged that the said Robert Munday, for his said offence, should be imprisoned in the House of Correction at Stafford, in and for the said county, and there kept to hard labour for six calendar months.

And the said justices, upon the request in writing of the said Robert Munday, who was dissatisfied with the said determination as being erroneous in point of law, and in pursuance of the said statute, stated and signed the following case:

At the hearing of the said information the following facts were proved:

The said Robert Munday was a lodger in the house of the said Eliza Maiden. The said Martha Maiden is her daughter, and is not quite eight years old. On Thursday, the said 12th Nov., the said Eliza Maiden left her house in the said borough about one o'clock in the afternoon, and remained away therefrom for two or three hours. She left the said Martha Maiden and the said Robert Munday together alone in the house, and the said Robert Munday knew that the said Eliza Maiden had gone out. When the said Eliza Maiden went out the said Robert Munday and Martha Maiden were in the sitting room of the house on the ground floor having their dinner. The said Robert Munday first finished his dinner; and when he had done so he sat down in an arm chair in the sitting room in front of the fire. Soon afterwards the said Martha Maiden finished her dinner, and then the said Robert Munday called her to him. She went to him and he cleaned her finger nails and had her on his knee. He kissed her four or five times, and she then got off his knee. About a quarter of an hour afterwards, the said Robert