houses, some of which houses and shops did formerly, but do not now belong to the company.

7. That Railway Place is not a cul de sac, but presents the appearance of an ordinary public street, and that the only fact to mark it as being railway property and not a public street, is that an iron post stands at each corner of one end thereof, where Railway Place runs into Fenchurch Street, on which posts the words Blackwall Railway are placed, but that these posts otherwise present the appearance of ordinary street posts.

8. It was also proved that at one time, some years ago (how long however was not shewn), a chain was occasionally stretched from one post to the other, but that this has not been done for some years.

9. That foot passengers pass through Railway Place as if it were a highway, on their way to other streets, or to the public-houses and shops in the neighbourhood of the station, and that, besides cabs and carriages going to the station, others passed through Railway Place at all hours to take up or set down at the shops or houses in the neighbourhood, or to proceed to other streets.

10. That the stand is not paved or kerbed differently to the rest of the carriage pavement on Railway Place, and is not a regular cab-stand.

11. That Railway Place is paved, cleansed and lighted by the railway company, but that there is nothing in the paving or lighting so peculiar in appearance as to distinguish it from the paving and lighting of an ordinary public street.

13. Lastly, from these facts that the place presented the appearance of a public street, and there being neither gates nor walls around it, but shops, publichouses and private houses and offices with the foot pavement in front thereof abutting on to the place, I was satisfied that no person who was not familiar with the history of the locality, or the title of the property, and being guided in forming his judgment by the appearance of the plan, would have considered it other than a public street.

14. On the part of the respondent it was contended

That Railway Place was a public thoroughfare, and that the respondent was not a wilful trespasser.

15. On the part of the appellant an opposite view was held and contended for. 16. I was, however, of opinion that the respondent was not wilfully trespassing.

17. The question of law arising therefrom is set out in the preceding paragraph, and the opinion of the Court is requested thereon, and as to whether I ought to have convicted the said respondent upon the facts before me.

Giffard (Marriott with him), for the appellant. The justice was wrong in dismissing the complaint, as it is clear that the respondent was wilfully trespassing upon the premises of the company. There was no dispute that Railway Place did not belong to the company. The respondent refused to move from the stand, and in wilfully doing what was a trespass was a wilful trespasser.

J. Browne.-Jones v. Taylor (1) is an authority to shew that the justice was right in refusing to convict. That case arose under this very Act of Parliament. The respondent went upon premises of a railway company for the purpose of repairing waggons which were lawfully there. The justice decided that he was not liable to be convicted as a wilful trespasser, and this Court held that they were not bound to find that he was a wilful trespasser. In the course of the argument, Wightman, J., said, "Is not a wilful trespasser he who chooses to come on the land without believing that he has any right?" The Act treats the trespass as a crime, and without the mens rea it could not be committed by the respondent. The intention of the Legislature was that the offence should be committed by a man who, without any claim of right, goes upon the station or the premises connected therewith, and refuses to go away when requested to do so.

BLACKBURN, J.-I think that, notwithstanding the case of Jones v. Taylor (1), the judgment of which is as brief as it possibly could be, if the respondent really

(1) 1 E. & E. 20; s. c. 28 Law J. Rep. (N.s.) M.C. 204n.

did intentionally and purposely stay upon the premises which are part of the railway premises after being ordered off, he did so wilfully, though he might fancy that because other people were allowed to stay there upon certain terms, he was entitled as of right to stay there without any terms at all, and honestly believed so; such a belief as that does not at all prevent the trespass being a wilful one. If he went there and stayed under a claim of right which would raise a question of title to land, the justice would have to hold his hand. The justice seems to think it immaterial whether the company are the owners of the land. There is no pretence on the part of the respondent, that the company were not owners of the land, but, on the contrary, there is very clear and strong evidence that they were the

owners.

There is nothing to shew that the respondent was not a wilful trespasser.

Judgment for the appellant.

NOTE-This point was decided at the above date, but the case was sent back to be stated more clearly and fully upon another point. The case as amended came on for argument upon the 9th of November, when the Court held that upon that point also, which need not be reported, the justice had come to an erroneous conclusion. There were three similar cases which were decided in the same way.

Assault Indecency Conɛent - Mere Submission-Children.

An assault must, in the absence of fear or fraud to procure consent, be an act done contrary to the consent of the patient, but mere submission by the patient, in ignorance of the moral nature of the act, to an act of indecency done by the agent, does not amount to such consent; therefore where two boys of eight years of age submitted to indecent

* Coram Kelly, C.B.; Martin, B.; Brett, J.; Grove, J.; and Quain, J.

acts on the part of a grown-up man in ignorance of the nature of the acts to be done and done, the man was held to be rightly convicted of an indecent assault.

Case reserved by the Deputy Assistant Judge of Middlesex.

At the General Session of the Peace for the county of Middlesex, on the 4th day of June, 1872, James Lock was tried before me upon an indictment, which charged him with indecently assaulting Frederick William Sandell and George Goodge.

It was proved by three witnesses that they saw the defendant in a field by the Edgware Road take each of the boys in succession upon his legs, play with their private parts, unbutton his trousers and theirs, lie upon them and move himself as if in the act of having connexion with a

woman.

The two boys, each of whom was only eight years old, proved that the defendant met them in the Edgware Road, said he would take them to some fireworks, gave them biscuits and some beer, took them into the field, went up to a wall to which they followed him, there sat upon the grass, placed them successively upon his lap, laid his hand on their private parts, unbuttoned their trousers and his own, threw them down on their backs and lay upon them, moving himself in an indecent manner, which one of the boys described by a gesture. The defendant was interrupted by the coming up of the three witnesses, when he told the boys not to · tell.

The boys were not asked by the counsel on either side if it was done against their will or with their consent, but they stated that they did not know what the defendant was going to do to them when he took them into the field and placed them on his lap and laid them on the ground.

On these facts it was contended by the counsel for the defendant that there was no case for the jury, inasmuch as the filthy acts were not done against the will of the boys.

Having determined that it was a question for the jury, in summing up I stated to them that the law recognised a distinction between mere submission and

positive consent. That a person may submit to an act done to him from ignorance, or his consent may be obtained by fraud, and in neither case would it be such a consent as the law contemplates. That consent means an active will in the mind of the patient to permit the doing of the act complained of, and knowledge of what is to be done, or of the nature of the act that is being done, is essential to a consent to the act. That it had been contended that inasmuch as an assault must be an act done against the will of the patient, and the boys did not expressly dissent there was no assault. But that this assumes a consenting will on their parts, and both stated that they did not know what the defendant intended to do, nor the meaning of what he was doing. The facts of the case were undisputed, and the question I left to the jury was whether, in their judgment, the boys merely submitted to the filthy act ignorant of what was going to be done to them, or of the nature of what was being done, or if they exercised a positive will about it and consented to what the defendant did. In the former case they would find the defendant "guilty. In the latter case they

would acquit him.

The jury found the defendant "guilty," stating that they did so, being of opinion that the boys merely submitted to the act of the defendant not knowing the nature of such act.

The question being of frequent recurrence, and the law appearing to be unsettled, on the application of counsel for the defendant, I reserved for the opinion of this Honourable Court the question

whether the definition of an assault "that it must be an act done against the will of the patient" extends to the case of submission to the act through ignorance of its nature and where there is no positive exercise of the will in the way of dissent, or if the active exercise of an actual dissenting will is necessary to be proved in order to constitute an assault.

If it should be the opinion of this Honourable Court that the direction to the jury was wrong the conviction will be quashed. If right it will be confirmed. The prisoner was admitted to bail.

No counsel appeared for the prisoner.

Metcalfe, for the prosecution.-The facts in this case amount to an assault on the little boys. There was no more consent here than there would be in a child who allows itself to be put under the operation of a dentist. There was here the mere submission of children of a tender age to an act of an adult, of the moral consequences and effect of which they were ignorant. He cited The Queen v. Day (1), The Queen v. Case (2), The Queen v. Williams (3), The Queen v. Rosinski (4), The Queen v. Bennett (5).

[KELLY, C.B.-The cases where fraud was exercised to procure the consent do not apply as there was no fraud or deception practised in this case. BRETT, J., referred to the cases of rapes on idiot women, as The Queen v. Fletcher (6), The Queen v. Fletcher (7).]

KELLY, C.B.-This conviction ought to be affirmed. The question is whether submission by a person to acts, unconscious of the nature of the acts, makes the person a consenting party so as to prevent the acts done from amounting to an assault. There can in such a case be no exercise of the will one way or the other, or consent, and the question is whether there could be an assault without the practice of any fraud upon the patient. It is like where an act of the same nature is done upon a woman who is asleep, and our law would be strangely defective if that were not to be an offence. Consent in such a case would be out of the question. She cannot then determine whether she will consent or not, and yet the act may be unlawful and amount to contact with her person. Threats to procure submission would bring the acts within assaults. these children being perfectly unconscious of the nature of the act and not in a condition to exercise any consent one way or the other, I think the conviction should be affirmed.

(1) 9 Car. & P. 722.

Here

(2) 1 Den. C.C. 510; s. c. 19 Law J. Rep. (x.s.)

M.C. 174.

MARTIN, B.-I am of the same opinion. I think this case is the same as that of a master taking indecent liberties with a female scholar which has been held to be an assault-The Queen v. Nichol (9).

BRETT, J.—I am of the same opinion.

There must be an act against the consent of the boys. The question is, did the judge lay before the jury a proper direction as to consent? The two children were of tender years, and the act was done by a man of mature years; they were awake but they were young. If they consented, though ignorant of the moral nature of the acts, I think that would not be an assault, but the question is did they consent, for I think the act must be done contrary to their consent. Some parts of the ruling of the learned judge might be open to close criticism, but the substantial question is left whether the boys merely submitted to the acts ignorant of what was going to be done, or of the nature of what was being done, or if they exercised a will about it and consented. Then did that amount to a direction that if the children merely submitted and did not consent, and the man knew it, it was an assault. In that case submission is not consent, and therefore I think the direction was right, and the conviction should be affirmed.

GROVE, J.-I do not think the active exercise of a consenting will is necessary to prevent an act being an assault. The consent may be positive or negative; if positive consent existed the conviction would be wrong, but if negative only it is right. I think it is right.

QUAIN, J.-The jury have found that the boys merely submitted to the act, therefore there was no consent. The question generally arises in cases of sleep or drunkenness, but here it is found that these boys were ignorant of the nature of the acts done to them. Therefore it cannot be said that they consented in the true meaning of the word.

Conviction affirmed.

Attorneys-Allen & Son, for prosecution.

(9) Russ. & R. C.C. 130.

An indictment alleged that the prisoner stole nineteen shillings and sixpence. The Court ordered it to be amended at the trial by describing the property stolen to be a sovereign, subject to the question whether the Court had power so to do. The jury found the prisoner guilty of stealing a sovereign: -Held, that the Court had power to order the amendment to be made as a variance between the statement and the proof in the description of a thing named in the indictment, under 14 & 15 Vict. c. 100. s. 1.

CASE reserved by the chairman of the Surrey Quarter Sessions.

At the General Quarter Sessions of the peace holden by continuance at St. Mary, Newington, in and for the county of Surrey, on the 3rd day of July, A.D., 1872, James Gumble was indicted for stealing on the 29th of May, 1872, nineteen shillings and sixpence from William Jackson Walton.

The prosecutor had been playing at throwing sticks at cocoa-nuts on Epsom Downs, and had to pay the prisoner sixpence, but having nothing less than a sovereign, he said to the prisoner, “Have you change for a sovereign? The prisoner said, "Yes," and in consequence of that prosecutor gave him a sovereign. He then pulled some money out of his pocket and said, pocket and said, "I haven't enough, I'll go and get it for you, I won't be a minute, just wait here." The prosecutor waited nearly an hour for the prisoner and then went for a policeman, leaving a friend who had been with him all the time to wait for the prisoner. This he did for quite another hour after the prosecutor went for the policeman. The prisoner's son removed the sticks and cocoa-nuts at the expiration of the first hour. The prisoner did not return and was not apprehended till the following Saturday, the 1st of July, on which occasion, when he Coram Kelly, C.B.; Martin, B.; Brett, J. ; Grove, J; and Quain, J.

saw the prosecutor's friend, he immediately ran away, and was only captured after a chase of some distance. On his apprehension 47. 10s. was found upon him.

It was objected by the prisoner's counsel that there was no case against the prisoner, for if he were guilty of any offence he was guilty of stealing a sovereign, and that the Court had no power to amend the indictment.

I allowed the case to go on, and put it to the jury that if they believed that the prisoner at the moment of obtaining the sovereign intended by a trick feloniously to deprive the prosecutor of the possession of the sovereign, they were to find him guilty. They found him guilty, and then the questions were reserved for the decision of the Court for Crown Cases reserved, as to

Whether the prisoner being found guilty of stealing a sovereign, could rightly be convicted under an indictment charging him with stealing nineteen shillings and sixpence; and also whether the Court would have had the power to amend the indictment at an earlier stage of the case.

The indictment was produced to the Court, and the allegation ran as follows: "nineteen shillings and sixpence of the moneys of William Jackson Walton."

No counsel appeared for the prisoner.

J. Thompson, for the prosecution.-The thing stolen in fact was the sovereign. The defective allegation in the indictment is cured by the 18th section of the 14 & 15 Vict. c. 100. That section enacts that in every indictment in which it shall be necessary to make any averment as to any money, it shall be sufficient to describe such money simply as money, without specifying any particular coin; and such allegation, as far as regards the description of the property, shall be sustained by proof of any amount of coin although the particular species of coin of which such amount was composed shall not be proved. The allegation of nineteen shillings and sixpence is immaterial, and may be rejected as surplusage.

[KELLY, C.B.-Upon the case as reserved we must take it that if the Court

had power to amend, it did amend the indictment before verdict by striking out "nineteen shillings and sixpence" and inserting "one sovereign."]

In that view the case is met by the 14 & 15 Vict. c. 100. s. 1, which enacts that whenever on the trial of any indictment for any felony, there shall appear to be any variance between the statement in such indictment, and the evidence offered in proof thereof in the name or description of any matter or thing whatsoever therein named or described, it shall be lawful for the Court on the trial to order the indictment to be amended according to the proof. There was here a variance between the description of the thingmoney-and the proof.

[BRETT, J.-Have you any case where the description of the thing stolen has been changed to represent a different thing? MARTIN, B.-It was never meant to describe the sovereign in this indictment.]

KELLY, C.B.-I take the case reserved to state that the indictment was amended at the trial, if the Court had power to order the amendment to be made by striking out the words "nineteen shillings and sixpence," and inserting the words one sovereign,” and looking at the 1st section of the 14 & 15 Vict. c. 100, I think the Court had power to order such an amendment to be made.