ing the requisition they assume the responsibility of paying the expenses of apprehending as well as delivering him. (a)

Only one case has arisen in this country under the Treaty between Great Britain and France, ratified in 1843. In this case it was held that, under the Imp. Stat. 6 & 7 Vic., c. 75, passed to give effect to the Treaty, the Consul General of France had no authority to demand the rendition of a fugitive criminal, such consul not being an accredited diplomatic agent of the French Government. That an informal translation of an acte de renvoi is not a judicial document equivalent to the warrant of arrest of which the party applying for extradition is required to be the bearer according to the statute. That the evidence of criminality to support the demand for extradition must be sufficient to commit for trial according to the laws of the place where the offence is alleged to have been committed. (b)

The Chesapeake case is the only one under the Imp. Stat. 6 & 7 Vic., c. 76. It was decided in 1864, before the suspension of the statute in New Brunswick. The many important points involved in this case have been given in the foregoing pages.

It may be observed, in conclusion, that the Imp. Stat. 6 & 7 Vic., c. 34, makes provision for the apprehension and surrender to the authorities of the place where the offence has been committed, of persons who have committed offences either in the United Kingdom of Great Britain and Ireland, or in any part of Her Majesty's Dominions, whether or not within the said United Kingdom, and who are found in any place in the United Kingdom, or any other part of Her Majesty's Dominions, other than where the offence was committed.

(a) Re B. G. Burley, 1 U. C. L. J. N. S. 45, per Richards, C. J. (0) Ex parte E. S. Lamirande, 10 L. C. J. 280.

The provisions of this Statute as between the United Kingdom and the Colonies, are very similar to those of our own statutes in aid of the Ashburton Treaty. The enactment only applies to treason, or some felony, such as justices of the peace in general sessions have not authority to try in England under the provisions of an Act passed in the sixth year of the reign of her Majesty, intituled "An Act to define the jurisdiction of Justices in general sessions of the peace." (a)

(a) See s. 10.

CHAPTER I.

CRIMES IN GENERAL.

IN the present work it is proposed to treat in the first place of the subject of crimes in general, and the distinctions between a public and a private injury; secondly, of the persons capable of committing crimes, and their several degrees of guilt, as principals or accessories; thirdly, of the several species of crimes recognized by law; after which will follow annotations of the Canadian statutes on Criminal Law and dissertations on the subjects of evidence, pleading and practice, as developed in our own

cases.

A crime is the violation of a right when considered in reference to the evil tendency of such violation as regards the community at large. (a)

The proper meaning of the term "crime" is an indictable offence, (b) and it is said that the test of an act being a crime, is whether an indictment will lie for it. (c)

Where an Act declared that every person having a distilling apparatus in his possession, without making a return thereof as therein provided, should forfeit and pay a penalty of $100, and rendered the apparatus liable to seizure, and forfeiture to the Crown: Held that an infringement of this Act was a crime. (d) The violation of a statute containing provisions of a public nature, and more particularly so when that violation is spoken of as

(a) Ste. Bla. Com., Bk 6, p. 94.

(b) Atty. Gen. v. Radloff, 10 Ex. 96, per Martin, B.

(c) Re Lucas & McGlashan, 29 U. C. Q. B., 92. per Wilson, J.; Bancroft v. Mitchell, L. R. 2, Q. B. 549. Rey v. Master, L. R. 4 Q. B. 289, per Mellor, J. (d) Re Lucas & McGlashan, supra, and see Reg. v. Boardman, 30 U. C. Q. B 553.

an offence, and is punishable by fine, or imprisonment as substitutionary for the fine, is a crime in law. (a) When an offence is made a crime by statute, the proceedings instituted for the punishment thereof are criminal proceedings. (b) The distinction between civil and criminal proceeding is this, if the subject matter be of a personal character, that is, if either money or goods are sought to be recovered by the proceeding, that is a civil proceeding; but if the proceeding is is one which may affect the defendant at once by the imprisonment of his body, in the event of a verdict of guilty, so that he is liable, as a public offender, that is a criminal proceeding. (c) An information by the AttorneyGeneral for an offence against the revenue laws is a criminal proceeding, being instituted by the Crown for the punishment of a crime. (d)

Offences against the customs and excise laws are not ordinarily treated as criminal proceedings but as penal actions; and the contingent liability to fine and imprison. ment does not alter the character of the offence. (e) A proceeding to obtain an order of affiliation under the (N. B.) 1 rev. stat. c. 57, is not a criminal proceeding, in which the party charged is punishable on indictment or summary conviction, (f) bastardy not being a crime punishable in this manner. (g)

It is an established principle of the common law that all crimes are considered local, and cognizable only in the place where they were committed. (h) The distinc

(a) Re Lucas & McGlashan, 92, per Wilson, J.

(b) lb. 92, per Wilson, J. Bancroft v. Mitchell, L. R. 2 Q. B. 555, per Blackburn, J.

(c) Ib. 86-7, per Richards, C. J.

(d) Re Lucas & McGlashan, 89, per Richards, C. J.

(e) Ex parte Parks, 3. Allen, 240, per Carter, C. J.

(f) Ex parte Cooke 4 Allen, 506.

(g) Ib.

(h) The Chesapeake case, 44 per Ritchie, J. Mure v. Kaye, 4 Taun. 43, per Heath, J.

tion of public wrongs from private, of crimes from civil injuries, principally consists in this, that private wrongs are an infringement or privation of the civil rights of individuals, considered as such: public wrongs or crimes and misdemeanors, are a violation of the same rights, considered in reference to their effect on the community in its aggregate capacity. (a)

The doctrine that all crimes concern the public prevails to such an extent, that by the policy of the law if a civil action is instituted, and it appears on the evidence that the facts amount to felony, the judge is bound to stop the proceedings, and nonsuit the plaintiff, in order that the public justice may be first vindicated by the prosecution of the offender. (b)

The true ground of this rule is to prevent the criminal justice of the country from being defeated, (c) and the principle on which it rests is, not that the felony appearing constitutes any defence to the action, but that by the rule of law the civil remedy is suspended until the defendant charged with the felony shall have been acquitted or convicted in due course of law. (d) The rule applies, whether the plaintiff be the party upon whose person the alleged felony was committed, or a person who can sustain his cause of action only in virtue of a wrong done to him through another, by an act which, as between the defendant and that other, constitutes felony; (e) and it seems the rule equally applies in an action against third persons. (f) The civil remedy is only suspended until an acquittal or conviction after a bona

(a) Ste. Bla. Com., Bk. 6, p. 94

(b) Walsh v Nattrass 19 U. C C. P. 453. Brown v. Dalby, 7 U. C., Q. B. Livingstone v. Massey, 23 U. C. Q. B 156. Williams v. Robinson, 20 U. C. C. P. 255. Pease v. M'Aloon, 1 Kerr. 111.

160

(c) Crosby v. Leng. 12 Ea 414 per Grose, J.

(d) Walsh v. Nattrass. 19 U. C C. P. 454, per Gwynne, J. Brown v. Dalby, 7 U. C Q. B. 162, per Robinson. C J.

(e Walsh v. Nattrass Supra, 455, per Gwynne, J. (f) Pease v. M'Aloon, 1 Kerr 118, per Parker, J.