was verbally remanded until the next day. Being then brought up again, and the examination concluded, the Justices decided to take bail, and send the case to the assizes. The prisoner said he could get bail, if he had time to send for them, and the Justice verbally remanded him until the following day, telling the defendant to bring him up then, to be committed or bailed. On that day, the defendant negligently permitted him to escape, for which he was convicted:-Held that W. was not in the custody of the defendant merely for the purpose of enabling him to procure bail, but under the original warrant, and the matter still pending before the Magistrates, until finally disposed of by commitment to custody, or discharged on bail, and that the conviction was proper. (a)

When a Sheriff refuses to produce a prisoner in his custody within twenty-four hours after notice, it is an escape, for which an action of debt will lie. (b)

It is the duty of the Sheriff of the county in which a city is, and not of the High Bailiff of such city, to convey to the penitentiary prisoners sentenced at the Recorder's Court. (c)

It seems that from the moment a prisoner is arrested, until he has actually expiated his offence by serving the full time of imprisonment, he is in the custody of the law for the purposes of the foregoing offences and a person in any way aiding in his escape, before full atonement made, becomes particeps criminis. (d)

Prison breach seems now to be an offence of the same degree as that for which the party was confined. (e) Imprisonment is no more than a restraint of liberty, and

(a) Reg. v. Shuttleworth, 22 U. C. Q. B. 372.
(b) Wragg v. Jarvis, 4 U. C. Q. B. O. S. 317.
(c) Glass v. Wigmore, 21 U. C. Q. B. 37.
(d) See Russ. Cr. 607.

(e) See 1 Edw. 2 Stat. 2.

any place, in which a party may be lawfully confined is a prison within this statute, for it extends to a prison in law as well as a prison in deed. (a) There must be an actual breaking of the prison and not such force and violence only as may be implied by construction of law. (b) The breaking need not be intentional (c); but it must not be from the necessity of an inevitable accident happening without the contrivance or fault of the prisoner. (d) The Prison Act 1865, 28 & 29 Vic. c. 126, s. 37, which prohibits the conveyance into any prison, with intent to facilitate the escape of a prisoner, of certain articles or "any other article or thing," includes a crowbar under the latter words. (e)

Parliamentary Offences.-Members of either House of Parliament are not criminally liable for any statements made in the House, nor for a conspiracy to make such statements. (f) An order for an attachment against a member of parliament is illegal and may be set aside though no proceedings have been taken upon it, by the issue of the process or otherwise. (g) So the writ may be set aside before the defendant is actually arrested upon it. (h) A member of parliament is not liable for the penalty imposed by the Con. Stat. Can. c. 3, s. 7, for sitting and voting without having the property qualification required by law. The penalty is only exigible from a person whose incapacity to become a member is decreed by s. 5. and whose election is radically null and void. (i) Members of provincial parliaments are priviliged from arrest in civil cases for a period of forty days, after the proro

(a) Russ. Cr. 592.

(b) Ib. 594.

(c) Rex v. Haswell, Russ. & Ry. 458.

(d) Russ. Cr. 594.

(e) Reg. v. Payne, L. R. 1 C. C. R. 27; 35 L. J. (M. C.) 170.

(f) Ex parte Wason, L. R. 4 Q. B. 573.

(g) Reg. v. Gamble, 1 U. C. P. R. 222.

(h) Ib.

(i) Morasse v. Guerremont, 5 L. C. J. 113.

gation or dissolution of parliament and for the same period before the next appointed meeting. (a) They have the same privileges in this respect as members of parliament in England (b) But this privilege of exemption from arrest only extends to civil matters. In cases of treason, felony, refusing to give surety of the peace, all indictable offences, forcible entries or detainers, libels, printing and publishing seditious libels, process to enforce habeas corpus contempts for not obeying civil process if that contempt is in its nature or its incidents criminal, and generally in all criminal matters there is no privilige of exemption from arrest. (c) A member of a provincial parliament held at Quebec, the place where he is resident, arrested eighteen days after its dissolution for "treasonable practices", and, during his confinement, elected a member of a new parliament is not entitled to privilege from such arrest by reason of his election to either parliament. (d) On motion for a writ of habeas corpus to produce the body of a person claiming exemption from arrest on the ground of the privilege of parliament, two papers purporting to be two indentures of election are not sufficient evidence of his being such member, to warrant the granting of the writ. (e)

After conviction for breach of privilege, in case of libel, the court will not notice any defect in the warrant of commitment. (f)

A prisoner committed by the House of Assembly to the Common Gaol "during pleasure" is discharged by prorogation. (g)

(a) Wadsworth v. Boulton, 2 Chr. Rep. 76; Rennie v. Rankin, 1 Allen, 620; Reg. v. Gamble, 9 U. C. Q. B. 546.

(b) Reg. v. Gamble, supra; but see Cuvillier v. Munro, 4 L. C. R. 146. (e) Ib. 552, per Draper, C. J.; Long Wellesley's case, Russ. & M., 639. (d) Re Bedard, S. L. C. A. 1.

(e) Ib.

(f) Re Tracy, S. L. C A. 478.

(g) Ex parte Monk, S. L. C. A. 120.

Р

Courts of law cannot inquire into the cause of commitment by either House of Parliament, nor bail, nor discharge a person who is in execution by the judgment of any other tribunal; yet if the commitment should not profess to be for a contempt, but is evidently arbitrary, unjust and contrary to every principle of positive law or natural justice, the court is not only competent but bound to discharge the party. (a)

The Courts have power to issue writs of Habeas Corpus in matters of commitment by either House of Parliament, and the commitment may be examined upon the return to the writ. (b; The Statutes 12 Vic. c. 27 and 14 & 15 Vic. c. 1, invest the House of Assembly with power to punish by imprisonment a deputy-returningofficer for malfeasance and breach of privilege. (c)

CHAPTER IV.

OFFENCES AGAINST THE PERSON.

Murder. Where a person of sound memory and discretion unlawfully killeth any reasonable creature in being, and under the Queen's peace, with malice aforethought, either express, or implied by law, the offence is murder. (a)

Malice is a necessary ingredient in, and the chief characteristic of, the crime of murder. (b) The legal sense of the word malice as applied to the crime of murder is somewhat different from the popular acceptation of the

When an act is attended with such circumstances as are the ordinary symptoms of a wicked, depraved and malignant spirit, a heart regardless of social duty, and deliberately bent upon mischief, the act is malicious in the legal sense. (c) In fact, malice, in its legal sense, means a wrongful act done intentionally, without just cause or excuse. (d) In general any formed design of doing inischief may be called malice, and, therefore, not such killing only as proceeds from premeditated hatred or revenge against the person killed, but also in many other cases, such killing as is accompanied with circumstances that shew the heart to be perversely wicked is adjudged of malice prepense and consequently murder. (e) Malice is either express or implied. Express malice is when one person kills another with a sedate, deliberate

(a) Arch. Cr. Pldg. 623.

(b) ee Re Anderson, 11 U. C. C. P. 62, per Richards, C. J.

(c) Russ. Cr. 667.

(d) M'Intyre v. M'Bean, 13 U. C. Q. B. 542, per Robinson, C. J; Poitevin v. Morgan, 10 L. C. J., 97, per Badgley, J.

(e) Russ. Cr. 667.