The difference between a riot and an unlawful assembly is this: the former is a tumultuous meeting of persons, upon some purpose which they actually execute with violence, and the latter is a mere assembly of persons, upon a purpose which, if executed, would make them rioters, but which they do not execute, nor make any motion to execute. (a)

There is also an offence of a similar character, called a rout. This offence is distinguishable from an unlawful assembly in this, that the parties actually make a motion to execute the purpose which, if executed, would make them rioters. (b)

The case of Reg v. Kelly (c) fully maintains the distinction between a riot and unlawful assembly. In this case, the defendant was indicted for riot and assault, and the jury found him guilty of a riot, but not of the assault charged-Held that a conviction for riot could not be sustained, for the assault, the object of the riotous assembly, had not been executed, but that the defendant might have been found guilty of forming part of an unlawful assembly. (d) It was considered that the assault was the enterprise of a private nature, in the words of the definition of riot, and that it must be afterwards actually executed with violence to constitute the offence.

It may be observed generally that all the parts of this definition must be satisfied, in evidence, before the jury can convict of riot. Three persons, or more, must be engaged therein; (e) it must relate to some private quarrel, only; for the proceedings of a riotous assembly, on a public and general account, may amount to overt acts of high.

(a) Reg. v. Kelly, 6 U. C. C. P. 372; Rex v. Birt, 5 C. & P. 154.

(b) See Russ. Cr. 387; Reg. v. Vincent, 9 C. & P. 91.

(c) Supra.

(d) Ib.

(e) R. v. Scott, 3 Burr, 1262; 1 W. Bl. 291; R. v. Sadbury, 1 Ld. Raym 484; Salk, 593; Arch. Cr. Pldg. 841.

treason, by levying war against the Queen. (a) The offence must also be accompanied with some such circumstances either of actual force or violence, or, at least, of an apparent tendency thereto, as are naturally calculated to inspire people with terror, such as carrying arms, using threatening speeches, turbulent gestures, etc. (b)

But it is not necessary that personal violence should have been committed. (c) It is sufficient terror and alarm to sustain the indictment if any one of the Queen's subjects be in fact terrified. (d)

To some extent it is necessary that there should be a predetermined purpose of acting with violence and tumult,; and if parties met together on a lawful and innocent occasion, become involved in a sudden affray, none are guilty but those who actually engage in it, for the breach of the peace was not part of their original purpose. (e) But it seems to be immaterial whether the act intended to be done by the persons assembling be in itself lawful or unlawful. (f)

Where a riot is proved to have taken place, the mere presence of a person among the rioters, even although he possessed the power of stopping the riot, and refused to exercise it, does not render him liable as one of the rioters. (g) In order to render him so liable, it must be shewn that he did something, by word or act, to take part in, help, or incite the riotous proceeding. (h) It is not necessary to constitute a riot that the Riot Act (i) should be read. Before the proclamation can be read, a riot

(a) Russ. Cr. 379.

(b) R. v. Hughes, 4 C & P. 373; Arch. Cr. Pldg. 842.

(c) Clifford v. Brandon, 2 Camp, 369, per Mansfield, C. J.; Russ. Cr. 379. (d) R. v. Phillips, 2 Mood. C. C. 252; C. & Mar. 602; Arch. Cr. Pldg. 842. (e) Russ. Cr. 381.

(f) Ib. 380.

(g) Reg. v. Atkinson, 11 Cox, 330, per Kelly, C. B.

(h) Ib.

31 Vic., c. 70.

must exist, and the effect of the proclamation will not change the character of the meeting, but will make those guilty of felony who do not disperse within an hour after the proclamation is read. (a)

An assemblage of persons to witness a prize fight is an unlawful assembly, and every one present and countenancing the fight is guilty of an offence. (b)

By the common law, every private individual may lawfully endeavour, of his own authority, and without any warrant or sanction from a Magistrate, to suppress a riot, by every means in his power. He may disperse, or assist in dispersing, those assembled, and stay those engaged in it from executing their purpose, as well as stop and prevent others whom he may see coming up from joining the rest. It is his bounden duty to do this, and even to arm himself, in order to preserve the peace, if the riot be general and dangerous. If the occasion demands immediate action, and no opportunity is given for procuring the advice or sanction of a Magistrate, it is the duty of every subject to act for himself, and upon his own responsibility, in suppressing a riotous and tumul tuous assembly, and the law will protect him in all that he honestly does in prosecution of this purpose. (c) This power and duty devolve upon a Governor of a colony, as well as others, in case of riot and rebellion. (d) By the 31 Vic., c. 70, s. 5, persons suppressing a riot are jus tified, though the death of a rioter may ensue. This is now the governing enactment as to riots throughout the Dominion.

Forcible Entry or Detainer.-This offence is committed by violently taking or keeping possession of lands and

(a) R. v. Furzey, 6 C. & P. 81.

(b) R. v. Bellingham, 2 C. & P. 234; R. v. Perkins, 4 C. & P. 537; Arch. Cr. Pldg. 842-3.

(c) Phillips v. Eyre, L. R. 6 Q. B. 15, per Willes, J.

(d) Ib.

tenements with menaces, force, and arms, and without the authority of the law. (a) It is a misdemeanor at common law, and there is no doubt an indictment will lie at common law for a forcible entry, if accompanied by such circumstances as amount to more than a bare trespass, and constitute a public breach of the peace. (b)

The object of prosecutions for forcible entry is to repress high-handed efforts of parties to right themselves; (c) and there seems now no doubt that a party may be guilty of a forcible entry by violently and with force entering into that to which he has a legal title. (d)

The Stats. 8 Hy. 4, c. 9, 8 Hy. 6, c. 9, 6 Hy. 8, c. 9, and 21 Jac. 1, c. 15, as to forcible entries, seem to be in force in this country. (e)

Under these Statutes, the party aggrieved by a forcible entry and detainer, or a forcible detainer, may proceed by complaint made to a local Justice of the Peace, who will summon a jury, and call the defendant before him, and examine witnesses on both sides if offered, and have the matter tried by the jury. (f) The party may, however, also proceed by action or by indictment at the General Sessions. (g) And if a forcible entry or detainer be made by three persons, or more, it is also a riot, and may be proceeded against as such, if no enquiry has before been made of the force. (h)

It has been held that the private prosecutor, on an indictment for forcible entry or detainer, cannot be examined as a witness, if the Court may order restitu

(a) Russ. Cr. 421.

(b) R. v. Wilson, 8. T. R. 357; R. v. Bake, 3 Burr, 1731 ; Arch. Cr. Pldg. 851. (c) Reg. v. Connor, 2 U. C. P. R. 140, per Robinson, C. J.

(d) Newton v. Harland, 1 M. & Gr. 644; Butcher v. Butcher, 7 B. & C. 399;

1 M. & R. 220; Hillary v. Gay, 6 C. & P. 248; Russ. Cr. 421-2.

(e) Ante p. 22.

(f) Boswell and Loyd, 13 L. C. R. 10 per Maguire, J.

(g) Russ. Cr. 428.

(h) Ib.

M

tion. (a) As this disability, however, rests solely on the ground of interest, it is, no doubt, removed in Ontario, at least, by the Con. Stats. U. C. C., 32, and the (Ont.) 33 Vic., c. 13. If, since the forcible entry, the prosecutor has been restored to possession, he may be a witness. (b) An inquisition taken before a Justice is bad if it appears to the Court that the defendant had no notice, or that any of the jury had not lands or tenements to the value of forty shillings, for the 8 Hy. 4, c. 9, expressly requires that persons who are to pass on sition should have lands of that value. (c) not required by the 8 Hy. 6, c. 9, but the uniform course of criminal proceedings makes it necessary that, before a person shall be found a criminal, he shall be called upon to make defence; and, in addition to this principle, the Courts have recognized the propriety of notice in this proceeding, on the ground that it would be wrong to put a person out of possession of his house or land upon a complaint of which he has no knowledge. (d)

such an inquiThe notice is

On an indictment for forcible entry or detainer of land, evidence of title in the defendant is not admissible (e) Where the defendants applied for delay, in order to give evidence of title, but on the prosecutor consenting to waive restitution in the event of conviction, they were compelled to go to trial, and were convicted, a writ of restitution was afterwards refused, though, semble, it would, in any case, have been improper to delay the trial for the reason urged. (f)

An inquisition for a forcible entry, taken under 6 Hy. 8, c. 9, must shew what estate the party expelled had in

(a) Reg. v. Hughson, Rob. Dig. 124; R. v. Beavan, Ry. & M. 242; R. v. Williams, 4 Man. & R. 471; 9 B. & C. 549.

(b) Reg. v. Hughson, supra.

(c) Rex v. M'Kreavy, 5 U. C. Q. B. O. S. 620.

(d) Ib. 626, per Robinson, C. J.

(e) Reg. v. Cokely, 13 U. C. Q. B. 521.

(f) Reg. v. Connor, 2 U. C. P. R. 139.