WILLIAMS v. WILLIAMS. 1882. corpse. Nevertheless, this lady applied to the Home Secretary, as I have said. The answer to that letter was that a licence could not be granted for cremation, but the Home Secretary desired to know to what burial ground it was intended to remove the remains. No one could doubt the meaning of that answer. It was beyond Property in a all question that no licence would be given for cremation, and corpse-Illethat if the burial ground were pointed out a licence would be gally obtaining a licence for given to remove the body only for the purpose of re-burial in disinterring a consecrated ground. The answer is as clear as the question. The plaintiff wrote as follows: [His Lordship read the letter of the 22nd day of March.] That can only mean, I will give up the cremation and adopt the other alternative of burying in consecrated ground. Then the licence was granted. That licence proceeded on the assurance which this lady had given, that the purpose for which the remains were to be removed was only burial in consecrated ground at Manafan, and not burning. Then on the 11th day of November, 1876, she writes to one of the executors: "I was advised that it would be an act of courtesy, though not of necessity, to write and tell you that should the time ever arrive when I find it possible to carry out the wishes of the late Mr. Henry Crookenden, as expressed in the codicil to his will, I intend to do so." That shows that, after having obtained this licence on the distinct representation that it was to be used for burial only, she still intended to use the licence so obtained for the purpose of carrying out the testator's intention of cremation. I have no hesitation in saying that so to use this licence was an illegal act. If her intention had been brought to the knowledge of the Home Secretary he would no doubt have revoked the licence. That is sufficient to show that the plaintiff could not possibly recover the expenses incurred in doing this Act, which, in my opinion, was an illegal one. But there is still another point. Suppose the act was not illegal. Could anyone recover in a court of equity any expenses for an act so done? The way this licence was obtained, and the cremation carried out, was distinctly fraudulent. If that stood alone the plaintiff's claim must fail. While allowing this lady full credit for her intention to carry out what she believed to be her duty, I must say that I am sorry her conception of her duty led her to deceive the Home Secretary in this manner. The action must be dismissed with costs. Solicitors for plaintiff, Walker and Mewburn-Walker. Solicitors for defendant Williams, Hollingsworth, Tyerman, and Andrews. Solicitors for other defendants, Hemsley and Hemsley. CROWN CASES RESERVED. Dec. 10 and 21, 1881, and March 18, 1882. (Before Lord COLERIDGE, C.J., DENMAN, J., POLLOCK, B., MANISTY, J., HUDDLESTON, B., HAWKINS, LOPES, STEPHEN, MATHEW, Cave, and NORTH, JJ.) REG. v. CONEY, GILLIAM, AND TULLY. (a) Prize fight-Illegality-Spectators-Encouraging-Aiding and abetting-Evidence. B. and M. were stripped, and fought for nearly an hour in a ring of cord supported by four blue stakes; six other persons were in the ring, three in each combatant's corner. Bets were made by persons in the crowd of from 130 to 150 persons around the ring. The prisoners were in the crowd, but were not speaking or betting, or taking any part in the fight, or doing anything. Coney was hemmed in by the crowd, and could not have got out if he had wanted. The three prisoners were charged upon an indictment for assaults upon B. and M., and the chairman directed the jury "that they were to determine whether or not this was a prize fight; that there was no doubt that prize fights were illegal just as much so as that persons should go out to fight with deadly weapons, and that it was not material which party struck the first blow; and that all persons who go to a prize fight to see the combatants strike each other, and who are present when they do so, are in point of law guilty of an assault. If they were not casually passing by, but stayed at the place, they encouraged it by their presence, although they did not do or say anything." The jury found the three prisoners guilty, but added that it was in consequence of the direction of law of the chairman, as they found that the three prisoners were not aiding or abetting. Held that a prize fight is illegal, and that all persons aiding and abetting therein are guilty of an assault. Held (Lord Coleridge, C.J., Pollock, B., and Mathew, J. dissenting), that the conviction must be quashed, as the direction of the chairman amounted to this: That the mere presence of persons at a prize fight unexplained is conclusive proof of intending to encourage the fight, although they are not seen to do or say (a) Reported by JOHN THOMPSON, Esq., Barrister-at-Law. REG. v. CONEY, anything; and that the finding of the jury was in obedience to that direction without exercising any judgment of their own upon the sufficiency of the evidence as to encouraging, or aiding GILLIAM, AND and abetting the fight. CASE NASE reserved for the opinion of this Court by the Chairman of the Quarter Sessions for the county of Berks. 1. The above-named prisoners, together with five other persons, were tried at the General Quarter Sessions for the said county on the 18th day of October, 1881. 2. They were charged in an indictment containing counts for unlawful assaults, riot, and rout, &c. All the counts, except the seventh and eighth, were given up by the counsel for the prosecution, and the trial entirely proceeded upon the seventh and eighth counts, which alone are material to the case. 3. The seventh count charges all the prisoners except Burke with a common assault upon him. The eighth count charges all the prisoners except Mitchell with a common assault upon him. 4. It appeared in evidence that on the afternoon of the 16th day of June, 1881, at the close of Ascot Races, a witness, who was proceeding along the high road towards Maidenhead, had his attention directed to some persons coming out of a plantation by the side of the road. He went into the plantation on private ground, and there saw, a few yards from the road, a ring of cord supported by four blue stakes. The prisoners Burke and Mitchell took off their coats and waistcoats, stripped, and went into the ring. Six other persons, of whom a prisoner named Symonds was one, went into the ring, three into each combatant's corner. Burke and Mitchell fought from three-quarters of an hour to an hour. Bets were offered by some of the persons in the crowd, which consisted of from 100 to 150 people. There was no evidence that the fight was for money or reward, nor that anyone tried to interrupt it. 5. In cross-examination it was elicited that it had been rumoured that two naked men were about to race. 6. Two witnesses deposed to seeing Coney and Tully in the crowd which surrounded the ring. They were not speaking, and were not seen to be betting, or taking any part in the fight or doing anything. One of the witnesses said that the crowd was so closely packed that it would not have been possible for Coney to push his way out when he saw him hemmed in. One witness spoke to merely seeing Gilliam in the crowd. 7. It was contended for the prisoners that it was not proved that this was a prize fight, and that there was no evidence of assaults committed by them or either of them upon Burke and Mitchell, or that they countenanced, aided, or abetted the men who were fighting, and that the seventh and eighth counts were not supported. TULLY. 1882. Prize fight Aiding and abetting. REG. v. 8. I directed the jury that they were to determine whether or not this was a prize fight, and I added "there is no doubt that GILLIAM, AND prize fights are illegal-indeed, just as much so as that persons CONEY, TULLY. 1882. Prize fight Aiding and abetting. should go out to fight with deadly weapons, and it is not at all material which party strikes the first blow; and all persons who go to a prize fight to see the combatants strike each other, and who are present when they do so, are in point of law_guilty of an assault." I also added, in the words of Littledale, J., Rex v. Murphy, which I read to the jury from Russell on Crimes, 5th edit., vol. i., p. 818: "If they were not casually passing by, but stayed at the place, they encouraged it by their presence, although they did not do or say anything. 9. The jury found that Burke and Mitchell were guilty of an assault upon each other, and that Parker and Symonds were guilty of an assault. They also found that Coney, Gilliam, and Tully were guilty, but they added that it was in consequence of my direction of law, as they found that Coney, Gilliam, and Tully were not aiding or abetting. 10. I thereupon directed a verdict of guilty to be entered against Coney, Gilliam, and Tully upon the seventh and eighth counts, and sentenced them to three weeks' imprisonment with hard labour, subject to the opinion of this Court upon the case. The other prisoners I sentenced to six weeks' imprisonment with hard labour. Bail was given, and the prisoners were liberated upon recognisance to surrender at the ensuing Christmas sessions. The question for the opinion of the Court is whether my direction to the jury was correct. RICH. BENYON. This case was argued twice, the first time (Dec. 10) before Lord Coleridge, C.J., Denman, Field, Stephen, and Cave, JJ.; and the second time (Dec. 11) before the eleven judges above named. H. D. Greene (Hammond Chambers with him) argued for the prisoner Coney. The other two prisoners were not represented by counsel. Poland (J. R. W. Bros and R. G. C. Mowbray with him) for the prosecution. The argument and the authorities cited appear in the judgment of the Court. Cur. adv. vult. March 18.-CAVE, J.-In this case I am of opinion that the direction to the jury was wrong, and consequently that the conviction ought not to stand. No direction to a jury can, in my opinion, be regarded as right or wrong without reference to the evidence before the jury; for a direction which is sufficient under a certain state of facts may be misleading and wrong under another state of facts. It is important, therefore, first to see what the offence was with which the prisoners were charged, and what was the evidence against them. The prisoners were charged in one count with a common assault on one Burke, and in another count with a like assault on one Mitchell. The evidence was that on the 16th of June last, at the close of Ascot races, Burke and Mitchell had engaged in a fight near the road from Ascot to Maidenhead; that a ring was formed with posts. and ropes; that a large number of persons were present looking on, some of whom were undoubtedly encouraging the fight; that the men fought for some time, and that the three prisoners in question were seen in the crowd, but were not seen to do anything, and there was no evidence how they got there or how long they stayed there. The chairman of quarter sessions directed the jury in the words of 1 Russell on Crimes, p. 818: “There is no doubt that prize fights are illegal-indeed just as much so as that persons should go out to fight with deadly weapons, and it is not at all material which party strikes the first blow; and all persons who go to a prize fight to see the combatants strike each other, and who are present when they do so, are, in point of law, guilty of an assault." And the chairman added, in the words of Littledale, J. in Rex v. Murphy (1) (6 Car. & P. 103): "If they were not casually passing by, but staying at the place, they encouraged it by their presence, although they did not do or say anything." By this direction I gather that the chairman laid down as matter of law, first, that the actual fighters in a prize fight are guilty of an assault; secondly, that if any person is shown to have been present in the crowd looking on at the fight that is not merely evidence, but, if unexplained, conclusive proof that he was aiding and abetting the assault. That seems to be the natural meaning of the language used, and that, from the finding of the jury, appears to me to be the sense in which they understood it. They found a verdict of guilty against five of the prisoners, who, I presume, were proved to have taken some active part, or to have been there for the purpose of encouraging the fight; and, as to the three prisoners in question they found that they were guilty of an assault, and yet that they were not aiding and abetting, which is to my mind an inconsistent finding. Indeed, on no other supposition can I understand the verdict, for the evidence against the three prisoners, and especially against Gilliam, is quite consistent with their being labourers working near, or persons going quietly home from the races, who, observing a crowd, went up to see what the matter was, and, finding it was a fight, stayed some short time looking on. For the defence it was first contended that, inasmuch as Burke and Mitchell had agreed to fight, there was no assault. I am, however, of opinion that this is not so. With regard to an action for an assault, in the case of Boulter v. Clarke (Buller's N. P. 16) it was held by Parker, C.B. that it was no defence to allege that the plaintiff and defendant fought together by consent, the fighting itself being unlawful; and in Matthew v. Ollerton (Comb. 218) it was held, that if one license another to beat him, such licence is no defence, because it is against the peace. So with regard to an |