EVIDENCE.

Not discovering. Arch. 12 ed.

709.

Prec. of Indict. Id.

Arch. 12 ed.

Embezzlement.

370-1.

Prec. of Indict., 371.

OBSERVATIONS.

alleging that he was not a bankrupt (n). Where a bankrupt was indicted for not surrendering to a district Court of Bankruptcy established by 5 & 6 Vic. c. 122, s. 59, and which was presided over by two Commissioners in separate courts, and where the defendant had been summoned to appear, and it was found that he had not appeared at all, in pursuance of the summons, nor before the same Commission elsewhere, but there was no proof of his not having appeared before the other Commission elsewhere, it was held that the proof of non-appearance was sufficient (o). It is sufficient to charge the bankrupt, if the concealment is by another as his agent holding the property subject to the bankrupt's control, and it is not necessary to show that he ever had the actual possession (p).

(n) Page's case, R. & R. 392; under the repealed statute, 5 Geo. II, c. 30, s. 1.

Prove the destroying, etc., or the making, or being privy thereto, of a false, etc., entry, and such fact from which the jury can infer the intent to defraud. The Act of Bankruptcy, etc., as above.

Arch. 12 ed. 486, 482,

(0) R. v. Dealtry, 1 Den. C. C. 287.

(p) Evani's case, 1 Mood. C. C. 74.

Prove the date of fiat or filing of petition, and the obtaining the goods within three months previous, and the false pretence of dealing in the ordinary course of trade.

EVIDENCE.

Prove the first marriage by some one present at the time, or if no such evidence, prove the registration, license, or banns (a) -the second marriage, and that it would have been valid but for the first-that the first wife was alive at the time of the second marriage by some one that saw her that the second marriage took place either in the county in which he is tried, or that in which he was apprehended, or is in custody. Rosc. Cr. Ev. 2 ed. 276; Arch. 12 ed. 711.

Prec. of Indict. Arch. Id.; Matt. C. L. 525.

a

OBSERVATIONS.

By the statute the offence is the same, whether the second marriage shall take place in England or elsewhere. The identity of the parties must be proved (b). Where E. C. was described in the indictment as a "widow," but the proof was that she was "spinster," the variance was held fatal (c). After proof of the first marriage, the second wife is a competent witness (d). If the first marriage be void, the indictment cannot be sustained, but proof of voidable marriage is sufficient (e); so also as to the second marriage (f). By the 6 & 7 Wm. IV. c. 86, s. 35, every rector, etc., and persons having the keeping of any register-book, shall permit search and give certified copies of any entries therein; and by s. 38, certified copies of entries purporting to be sealed or stamped with the seal of the General Register-office, are to be received without further proof of such entries. By the statute, a prisoner may be tried in the county in which he was apprehended, or is in custody. If the trial is had in a different county from that in which the bigamy was committed, the indictment must contain an averment of the place or county where the prisoner was apprehended (g). It is a good defence by the statute to show that the wife or husband has been "continually remaining absent from the other for the space of seven years then last past, and has not been known by the other to be living within that time;" or, that before the second marriage, the party was divorced from the bond of the first marriage (h); or that the first marriage was declared void by a Court of competent jurisdiction (¿). Whether the party setting up the defence of absence for seven years is bound to show that he has used reasonable diligence to inform himself of the fact, seems not to be settled (k).

(a) Allison's case, R. & R. 109. In order to prove that a marriage in Scotland is valid according to the law of Scotland, a witness, cognisant with Scotch laws as to marriage, ought to be called, R. v. Povey, 22, S. J. M. C. 19.

(b) Drake's case, 1 Lew. C. C. 25. (c) Deely's case, 1 Mood. C. C. 303.

(d) B. N. P. 287; Bac. Ab. Ev. A. 1; 1 East, P. C. 469; Wells v. Fisher, 1 Moo. & R. 99; S. C. 5 C. & P. 12.

(e) 1 Hale, 693: 1 Bl. Com. 493; Co. L. 79; see Gordon's case, R. & R, 48; 3 Inst. 88: Jacob's case, 1 Mood.

C. C. 140. As to the necessary proof of a valid marriage, see Rosc. Cr. Ev. 2 Ed. 277, et seq.; Arch. 8 ed. 624-5; and Rog. Eccl. L. 505, et seq.

(f) Allison's case, R. & R. 109; Edwards's case, R. & R. 283; 1 Russ. 201; Penson's case, 5 C. & P. 421; Palmer's case, 1 Deac. Dig. C. L. 147. (g) Fraser's case, 1 Mood. C. C. 407.

(h) As to the effect of a divorce in Scotland, Lolley's case, R. & R. 237. (i) Duchess of Kingston's case, 11 St. Tr. 260.

(k) 1 East, P. C. 467; 1 Russ. 189.

(A) A public bridge.] A public bridge has been defined to be such a bridge as all Her Majesty's subjects have used freely, as of right, for a period of time competent to protect themselves, and all who should thereafter use it, from being considered as wrongdoers in respect of such use, in any mode of proceeding, civil or criminal, in which the legality of such use may be questioned (1). Occasional use by the public does not render a bridge a public bridge (2); yet if there be an absolute right of passage by the public, though only at particular seasons, this will suffice to render a bridge such an one as the county must repair (3). If the trustees under a Turnpike Act build a bridge

(1) Per Lord Ellenborough, R. v. Inhab. of Bucks. 12 East, 204; and see R. v. Inhab. of Glamorgan, 2 East, 356, n.; R. v. Bucks, 12 East, 192; R. v. Salop, 13 East, 95.

(2) R. v. Inhab. of Bucks. 12 East, 203, 204.

(3) Per Abbott, C. J.; R v. Inhab. of Devon, Ry. & Moo. 144; and see R. v. Inhab. of Northampton, 2 M.

EVIDENCE.

OBSERVATIONS.

Prove the warrant, and the delivery of it to A. B.-that the defendant knew that A. B. had the warrant, and offered him the money stated to refrain from executing it. Arch. 12 ed. 664.

Prec. of Indict. Arch. 663; Matt. C. L. 432.

The offence of bribery is the same whether the bribe were accepted or not (a); and whether the officer be judicial or ministerial (b). He who receives, as well as he who offers a bribe, is guilty (c). Bribery at elections, is an offence at common law, punishable by indictment or information. The statutes on the subject of

bribery at elections for Members of Parliament, impose penalties for the offence (d); the same as to municipal elections (e).

Prove the bridge a public bridge (see note, infra)—that it has been obstructed, or permitted to be out of repair (see post, p. 51, n.)—in the latter case, that the defendants are liable to repair (see post, p. 51, n.) Rosc. Cr. Ev. 2 ed. 293; Arch. 12 ed. 735. Prec. of Indict. and Pleas. Arch. 734, 736; Matt. C. L. 433.

1 W. Bl. 317; Loft, 552; 1 Hawk. P. C. c. 67, s. 10; Huntingtower v. Gardener, 1 B. & C. 297; Henslow v. Fawcett, 3 Ad. & El. 51; 4 N. & M. 585; Webb v. Smith, 4 B. N. C. 373.

(e) 5 & 6 Wm. IV. c. 76, s. 54; Harding v. Stokes, 1 M. & W. 354; Tyr. & Gr. 599, S. C.

66

Venue, Trial, etc.] By the 1 Anne, st. 1, c. 18, s. 5, all matters concerning the repairing and amending of bridges and the highways thereunto adjoining, shall be determined in the county where they lie, and not elsewhere." It seems that no inhabitant of a county ought to be a juror on a trial of an issue, whether the county is bound to repair (a); the Court will therefore, upon a suggestion, award (a) 1 Hawk. c. 77, s. 6.

across a stream where a culvert would have been sufficient, yet if the bridge become upon the whole more convenient to the public, the county cannot refuse to repair it (4). And where a miller, on deepening a ford through which there was a public highway, built a bridge over it which the public used, it was held that the county was bound to repair (5). It seems that an arch of nine feet span, without battlements at either end, over a stream usually about three feet deep, is a culvert, and not a bridge to be repaired by the county (6). Where a wooden foot-bridge was constructed along the outside of the parapet of an ancient carriage-bridge, which certain abbey-lands were charged with the repairing, and which the proprietors always had repaired; it was held that the

& S. 262; R. v. Marquess of Bucking

ham, 4 Camp. 189.

(4) R. v. Inhab. of Lancashire, 2 B. & Ad. 813.

(5) R. v. Inhab. of Kent, 2 M. & S. 513.

(6) R. v. Whitney, 7. C. & P. 208.

F