with intent to resist their lawful apprehension by persons already in custody. (2)

Before a party can be guilty of the offence of obstructing an officer in the execution of his duty, the latter must be acting under a proper authority. (a)

But if the process is regular, and executed by a proper officer, an obstruction, even by a peace officer, will be illegal on the established principle that if one having a sufficient authority issue a lawful command, it is not in the power of any other, having an equal authority in the same respect, to issue a contrary command, as that would legalize confusion and disorder. (b)

Where the indictment

In an indictment for obstructing an officer of excise, under 27 & 28 Vic., c. 3, the omission in the indictment of the averment that, at the time of the obstruction, the officer was acting in the discharge of his duty," under the authority of 27 & 28 Vic., c. 3," is not a defect of substance, but a formal defect, which is cured by verdict. (c) is under ss. 111 and 112, for obstruction by threats of force and violence, it is not necessary to set out the threats in the indictment, for the gist of the offence is not the meaning of the words, but the effect produced by them—namely, the obstruction. (d)

And where a revenue officer, in seizing a distillery, had also seized the outbuildings belonging to the same premises, and the proprietor entered them by force, and in doing so injured one of the employees of the Government; it was held that the proprietor had a right to enter, and that by force if necessary, and that in doing so he had committed no offence against the Government. (e)

Disobeying an order made by justices of the peace, at their sessions, in due exercise of the powers of their jurisdiction.

(z) Reg. v. Sherlock, L. R. 1 C. C. R. 20; 35 L. J. (M. C.) 92.

(a) Russ. Cr 570; Rex v. Osmer, 5 Ea. 304.

is an indictable offence. (ƒ) And, on the same principle, if an Act of Parliament give power to the Queen in Council to make a certain order, and annexes no specific punishment to the disobeying it, such disobedience is nevertheless an indictable offence, punishable as a misdemeanor at common law. (g) So disobedience to an order of one or more justices is an offence punishable by indictment at common law. (h) Every person mentioned in the order, and required to act under it, should, upon its being duly served upon him, lend his aid to carry it into effect. (2)

Escapes. An escape is where one who is arrested gains his liberty, by his own act, or through the permission or negli gence of others, before he is delivered by the course of the law. (j) If the escape is effected by the party himself, with force, it is usually called prison breach; if effected by others, with force, it is commonly called a rescue. (k) If a party in the custody of the law secure his own escape, though without force, he is guilty of a high contempt, and punishable by fine and imprisonment. (7) If a prisoner go out through an open door of his gaol, without using any force or violence, he is guilty of a misdemeanor; and it seems any person aiding him in such escape is punishable as for a misdemeanor at common law. (m) In order that an officer may be liable for an escape, the party must be actually arrested, and legally imprisoned for some criminal matter. (n) The imprisonment must also be continuing at the time of the escape, and its continuance inust be grounded on that satisfaction which the public justice demands for the crime committed. (2) A voluntary

(f) Reg. v. Russell, 5 U.C.L.J.N.S. 132, per Cockburn, C. J.; 17 W. R. 402; Russ. Cr. 573; Rex v. Robinson, 2 Burr. 799-800.

(g) Rex v. Harris, 4 T. R. 202; 2 Leach, 549.

(h) Rex v. Balme, Cowp. 650; Rex v. Fearnley, 1 T. R. 316; Reg. v. Gould, Salk. 381; Russ. Cr. 574.

(i) Ibid. 575; Rex v. Gash, 1 Starkie, 41.

escape is where an officer, having the custody of a prisoner, charged with and guilty of a capital offence, knowingly gives him his liberty, with intent to save him either from his trial or execution. By this offence, the officer is involved in the guilt of the same crime of which the prisoner is guilty, and for which he was in custody. A negligent escape is where the party arrested or imprison ed escapes against the will of him that arrests or imprisons him, and is not freshly pursued, and taken again, before he has been lost sight of. (p)

In the case of a voluntary escape, the officer has no more right to retake the prisoner than if he had never had him in his custody; but in case of negligent escape, if the party make fresh pursuit he may retake the prisoner at any time afterwards, whether he finds him in the same or a different county.

Where a prisoner, charged with a misdemeanor, after examination of witnesses, was verbally remanded until the following day, in order to procure bail or in default to be committed, and on that day the defendant negligently permitted him to escape, for which he was convicted, it was held that the prisoner 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. (q)

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. (r)

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. (s)

Prison breach seems now to be an offence of the same degree as that for which the party was confined. (t) Imprisonment is no more than a restraint of liberty, and any place, in which a party may be lawfully confined is a prison within the statute, 1 Edward II., stat. 2, for it extends to a prison in law as well as a prison in deed. (u) There must be an actual breaking of the prison and not such force and violence only as may be implied by construction of law. (v) The breaking need not be intentional; (w) but it must not be from the necessity of an inevitable accident happening without the contrivance or fault of the prisoner. (x)

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. (y)

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. (2) 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. (a) So the writ may be set aside before the defendant is actually arrested upon it. (b) A member of parliament was 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 was only exigible from a person whose incapacity to

(x) Russ. Cr. 594.

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

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

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

(b) Ibid.

become a member was decreed by s. 5, and whose election is radically null and void. (c) Members of provinicial parliaments are privileged from arrest in civil cases for a period of forty days, after the prorogation or dissolution of parliament and for the same period before the next appointed meeting. (d) They have the same privileges in this respect as members of parliament in England. (e) 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 privilege of exemption from arrest. (f) 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. (g)

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. (h)

After conviction for breach of privilege, in case of libel, the court will not notice any defect in the warrant of commitment. (2)

A prisoner committed by the House of Assembly to the

(c) Morasse v. Guevremont, 5 L. C. J. 113.

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

(e) Reg. v. Gamble, supra; but see Culvillier v. Munro, 4 L. C. R. 146. (f) Reg. v. Gamble, 9 U. C. Q. B. 552, per Draper, C. J.; Lord Wellesley's case, Russ. and M. 639.

(g) Re Bedard, S. L. C. A. 1.

(h) Ibid.

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