went to service. Re-examined.-The mother has been for some time in the house, off and on. Only one question asked by Mr. Jary before he quite read it through. I wrote the statement in the sick room from what she told me, and put questions to her as I wrote. I read it over the same night. She made no observation. After Mr. Jary read it, she made no observation, but she did make an observation when he had read about half way, in answer to a question of Mr. Jary. What she said was entered. No interineation was made.

William Jary, chairman of the board of guardians. -Saturday, the 25th, I saw Martha Turner. A statement was put into my hands. I first spoke to her to ee if she was able to give a statement. I thought he was. I asked her whether she was aware of the tate she was in. She said she felt she was dying, and he satisfied me she thought so. I sometimes put the estions from the statment in a leading way, and metimes took the girl's words. I sometimes put a estion to her, and sometimes she took, as it were, step of her own. I put a question to her in the iddle. It was, "Why did you not run away?" And Elizabeth Soames, Great Yarmouth, widow.-I go le made an answer. With that exception, she made out as nurse. In September last I was sent for by o alteration. She appeared to understand the state- prisoner. I went to her house in Brandon-terrace, ent. I put a great many questions, and I got a and I have been to prisoner's in Marine-terrace. Í reat many answers to those questions: I think she went in as a visitor. I saw Martha Turner there; I swered every question I put to her. I did not read saw her several times. When I went the last time, a e statement in its entirety at once. I made obser- few days before the deceased left, I rang at the door, ations as I went on. I read it in substance: I read and nobody answered. Whilst I stood there I heard very word of it, with observations. She said nothing deceased and prisoner talking. The deceased came to induce me to reject any part of it. Cross-examined. the door, and she said her mistress was not within, I read it over, putting it partly in questions. She but I heard her voice. I had seen the girl about three as not asked to make her mark. I tried to get as weeks before she left; she looked in a weak state. I much of her own statement as I could. She could not noticed her looking pale, not as she looked before; take her mark; her hands were very bad. Mr. Met- she was not so fat as when I first knew her; she got alfe proposed to read the statement. Mr. Bulwer thinner by degrees. I was at prisoner's to nurse pribjected. It must be a voluntary statement, and not soner, three weeks to a month or five weeks before answer to leading questions. I consulted the Lord Michaelmas. I went one evening about nine; I found Chief Justice, and then held that the evidence of Mr. the prisoner ill; she had sent for me; I found her in fary was admissible of what took place on the occa- bed; she slept in a room next the dining-room, on on of his interview with the deceased. ground floor; on Saturday she was moved down to Mr. Jary further examined by prisoner's counsel, as kitchen in a shut-up bedstead; she could see storethe manner of his examining the deceased.-I asked room from there; she gave me keys, and told me to she had lived with Mrs. Smith (prisoner); she said give Martha Turner some dripping and bread; it was e had. I believe I asked how long she lived there. morning; she was to have it in scullery; I gave her incannot say whether she said she was to have 18. a stead some tea and some bread and butter; the girl eek, and received 13s. in all, or I read it to her. As had no dinner. I don't know whether she had anyboots, &c., I do not remember whether she stated thing more; she was working hard all day; I did not ese things without my putting it to her. I read to say anything of it then. The girl could not take any"I had no meat, pudding, or anything in the shape thing for herself only what came off the drawingfood-only dry bread." I then said, "Why did you room table. There were lodgers. The prisoner said ot run away?" She said, her mistress locked the deceased was a lazy old beast. I did not see the girl or. The witness having been thus tested, it was get anything next day but what she got off the drawgreed that the paper should be read, as the substance ing-room table by stealth; I don't know that girl had what the witness would prove he obtained from the any dinner on Sunday; I did not see whether she had ceased; but Mr. Bulwer still objected to the evidence anything; I was there from Friday night to Sunday the statements of the deceased being admissible at morning; I know of nothing given her except the having regard to the way in which they were ob- bread and butter I gave her, and things from the drawined. The following is the paper:-"I have been ing-room table; I did not go into scullery where the ving with Mrs. Smith (of Brandon-terrace, Great girl was, she only came into kitchen on business. She armouth), lodging-house keeper. I have been in her slept in scullery on straw bed; an old counterpane on ervice one year and six months. I was to have had it; the floor was bricks, and very damp; things were 4. per week for my services. I have only received washed up there. She was taking the bedding one day 38., one pair of boots, and two caps. My mistress to the yard, and I told her not to do so; I did not ave me only half a slice of bread each day. I had notice bedding was damp, but it was a damp place. o meat, pudding, or anything in the shape of food, After they went to Marine-terrace, prisoner said she nly dry bread. I tried to get away, but my mistress had a nice low kitchen with a fireplace in it. On the ocked the door. I have been sleeping in a damp Saturday after Martha Turner left, the prisoner came cellar with only a coverlid to cover me, and no bed. I to me; she asked if I would go there to tea on Sunslept on the bricks. My mistress, during my illness, day; she said she would pay me what she owed me. I only visited me once a day, and that was for the pur- did go to tea; she said I was to come again, and she pose of giving me my day's bread. I got the water I would settle with me. Prisoner said old Anne was had from a tap in the cellar, with a mug for that pur-gone, and she was afraid she should get into trouble,

pose. I was two weeks lying on the damp bricks, and saw no one but my mistress. My mistress wanted me to work, but I could not. She has beaten me with a cane during the time I was sick in the cellar. I have never slept on a bed the whole time I have been with my mistress in the new house, say five months and upwards (before going to the new house I slept on a straw bed on bricks. I made a bed-tick out of one of my old shawls, and filled it with straw; that was my bed; all I had to cover me was an old counterpane). I have always been subjected to my mistress's ill-treatment from the time I first entered her service. My mistress pushed me on one occasion, and I fell against a piece of iron and bruised my eye; she has bruised me, by striking me with her fist on the chin and other parts of my body; she would never let me leave the house when I wanted so to do. The charwoman took me to my uncle Williams's, in Yarmouth; he would not take me in; he sent me to my uncle Bushe's, at Fleethorpe; from thence I was taken in a cart to the union house at Longwood. I have not had my clothes off for two weeks."

and trying. Chilblains proceed from slow circulation. A neglected chilblain may become gangrenous. Gangrene might arise from many causes. Mr. Kidd made the examination. Re-examined. The tubercles were hard and innocuous. She did not, therefore, die of consumption. In a common cold I should have expected to find both lungs inflamed. I think the symptoms are not consistent with death from a cold, and that they are all consistent with insufficient nourishment.

her soul was going to. I asked if she had had suffi- | This has been a very trying season. Yarmouth is cold cient food. She said, always sufficient food whilst with her. I asked her to shew me the cellar. On examining the cellar, I found a camp bedstead, leaning against wall of cellar; on a chair, an old mattrass, folded up, two dirty sheets, and a counterpane; the whole very dirty; some saucepans on shelf over. I asked prisoner if that was the bed and bedding of Turner. She said, "Yes." She said she had occasionally slept in the cellar, but against her (prisoner's) will. She wished her to sleep in the kitchen. She was a very dirty girl, and she was compelled to let her sleep in the way I had seen. Cross-examined.-She said the camp bedstead was the deceased's; that she had always told her to sleep in the kitchen; that the bedstead was to be put in the cellar during the day, and her directions were, that at night the deceased was to bring it up and sleep in the kitchen, but she was too lazy to do so. I heard Mrs. Casterton promise coroner that she should appear before him on following Thursday to give her explanation of what had happened. Tuesday night I took her up, and had her taken before justices. She was deprived of opportunity of appearing before coroner. Mrs. Gaze, Mrs. Huggins, and her daughter gave evidence before coroner. I am conducting prosecution.

Mrs. Huggins, not called."

William Cufaude, surgeon, Acle.-24th February I saw Martha Turner at Rampont-house, Freethorpe. She was in a most enfeebled emaciated state, in bed, in a back room, without a fire. I examined her; I noticed her left hand was swollen, and in a gangrenous state. Mortification had set in. The fore arm, and arm even to shoulder, much swollen. Back of the left hand was more discoloured. On right hand the skin was chapped and cracked. I observed she was very thin, and her bones prominent. I directed her to be removed to workhouse with every care. She died 27th February; 28th, I assisted at post mortem examination. On opening the chest, the right pleural cavity contained a pint and a half or two pints of serum. The right lung was hepatied (rendered more like liver than lung), and rendered imperious to air. The upper lobe of the left lung contained two tubercles; consumptive deposits, hard and uninflamed; remainder of the lung was inflamed. The heart was thin, pale, and flabby. No appearance of fat about heart. On opening the abdomen, the stomach was greatly distended by gas; containing beef tea and port wine. The intestines were flat, collapsed, and their coats very thin. The kidneys had no fat surrounding them. The bladder small, empty, and the coats thin. Brain was healthy in appearance. The appearances indicated that the deceased died from the state of lung described. The gangrenous hand shewing a low type of inflammation, conduced and produced by innutrition-insufficient nourishment. Insufficient nourishment would produce the peculiar state of inflammation of the lung from which she died, as any exhaustive disease would produce it. Every other organ being healthy, especially those connected with the digestive functions, convinces me that she suffered from insufficient nourishment. The appearances when alive, and the post mortem examination, satisfied me she had for some considerable time suffered from insufficient nourishment. Exposure to cold and wet would conduce to the state in which I found the lungs. Sleeping in a damp place would so conduce. Cross-examined.-Congestion is the first onset of an inflammatory disease. In one lung there were tubercles, which were consumptive symptoms. She died of inflammation of the pleura and of the substance of the lung. Both the pleura and the lung may be implicated, and cause death from taking a violent cold.

Bulwer, for the prisoner. It is submitted that this dying declaration was not admissible, because the evidence of the first two witnesses shews that it was not voluntary, but in answer to leading questions; and perhaps the question is not, whether the statement was strictly inadmissible, but whether, under all the circumstances, it ought not to have been rejected. [Blackburn, J.-I cannot conceive that, if evidence is admissible, the judge has any discretion. Smith, J.I pointed out to the jury that the statement had not been obtained in a satisfactory way.] The admission of a dying declaration is a deviation from, and an anomaly in, the law of evidence, and is admitted upon the ground that the occasion supplies the obligation of an oath. (2 Hume's Com. Law of Scotland, 207). Here the statement was read over, and not freely given. Taking this as a statement made upon oath, it is to all the objections which might be made to other depositions on oath. In Hutchinson v. Bernard (2 Moo. & R. 1) the answers to leading or inadmissible questions given by witnesses examined on a commission were not allowed to be read; and therefore all the passages in this statement which were not clearly evi dence, or which were immaterial, ought not to have been read to the jury. [Erle, C. J.-But that would not affect the case at all, the question being, whether there was evidence to support the indictment which ought to have been left to the jury.] [He then contended, that, upon the evidence, there was nothing to shew such personal restraint exercised by the prisoner over the deceased as to make her criminally respon sible for the death of the deceased; and cited Bir V. Bicknell (31 L. J., Ex., 189) and 2 Co. Inst. 482.]

open

Metcalfe, for the prosecution.-[Erle, C. J.-The question we wish to direct your argument to is, whe ther there was evidence which the judge was bound to leave to the jury of such dominion and restraint on the part of the prisoner over the deceased as to render it impossible for her to withdraw from her control? The deceased had a weak intellect, probably lowered by insufficient food. She was continually beaten and threatened; and to all that must be added the fact, that she had been ill for two weeks, during which time she was only seen by the prisoner, who brought her food; and, according to the statement, the deceased was prevented from leaving the house. Bulwer, in reply.

ERLE, C. J.-We are opinion that this conviction was wrong. The prisoner was indicted for feloniously killing and destroying the deceased, and the unlawiti act complained of, was the neglecting to supply proper and sufficient food and lodging to the deceased, as her servant, during the time when the deceased was reduced to and in such an enfeebled state of body and mind as to be helpless and unable to take care of herself, or was under the dominion and restraint of the prisoner, and unable to withdraw herself from her control The law is undisputed, that if a person having the custody of another in a helpless state, leaves that other with insufficient food and lodging, so as to cause death, he is criminally responsible for such death. The haw is also clear, that if a person having the exercise of a free will, chooses to stay in a service of such great

hardship and bad food and lodging, that death super-evidence ought not to be left to the jury. It seems venes, the master is not responsible in such a case. to me there was not sufficient evidence to support the The question is, whether there was evidence that the verdict, and therefore the conviction cannot be supdeceased was in such a helpless state of body and mind ported." so as not to be able to release herself from the control of the prisoner. She was not in such an enfeebled state as to be helpless and inacapble of taking care of herself, in the ordinary sense of the words, because she was capable of doing her duty as a servant, and had sense enough to enable her to do so. She was, therefore, not imprisoned so as to make the mistress responsible. Then, as regards the other alternative, was the deceased under the dominion and restraint of the prisoner, and unable to withdraw herself from her control? She clearly was not, as she walked about the town, and did her duty as a servant. Again: was she by reason of threats and fears, or other maltreatment, deprived of the exercise of her own free will? It is said there was strong evidence of maltreatment, but the death took place in February, 1865, and the only evidence of personal injury related to the summer of 1864; long after that she gave notice to quit at Michaelmas, 1864. There is nothing to shew that what took place in July is proximately connected with the death. She then seems to have had the alternative of returning to work or not, and she chose the former. I am bound to say, therefore, that I do not see any evidence of her being under the dominion of her mistress, so as to be unable to release herself from her control. Upon the whole, I think the prosecution fails, and the conviction must be quashed.

MELLOR, J.-I also am of opinion that there was not sufficient evidence to support the finding of the jury. SMITH, J.-At the trial I had grave doubts whether the deceased was reduced to such a state of helplessness as to render the prisoner criminally responsible for the death. It seemed to me, however, that I could not withdraw the case from the jury. I agree, that the evidence was not sufficient to support the conviction.-Conviction quashed.

CHANNELL, B.-I am of the same opinion. The first point is, whether this dying declaration was properly received in evidence. The declaration offered in evidence primâ facie would not be evidence; but it becomes so if made by a person under the belief that he is in a dying state. It is for the judge to determine this, and if, as in this case, he reserves that question for the Court of Appeal, then that Court must determine it. It is for the judge to determine whether it is made under such circumstances as to be admissible, and then it is for the jury to say what the declaration was. The two questions are perfectly distinct. On the question which involves the merits of the case, I am of opinion that the summing up of the learned judge was perfectly correct. But we are to look at it as a matter involving a point of law; and then arises the question, whether there was evidence properly left to the jury so as to sustain their verdict; and upon the evidence, I agree that the conviction cannot be supported.

BLACKBURN, J.-I am of the same opinion. I quite agree with what my Brother Channell has stated on the first point, and I think the learned judge could not have come to any other conclusion but that the declaration was admissible. The supply of food and lodging to a servant is a matter of contract between the master and the servant, and for breach of it the master is liable in a civil action, but not generally in a criminal proceeding. Persons having the custody and control of helpless persons are under a legal responsibility of keeping them supplied with proper nourishment. Then, was the deceased placed in such a relation to the prisoner? Although not under restraint by bolts and bars, if the deceased was so terrified by the prisoner as to be incapable of withdrawing herself from her control, and the prisoner knew it, I should have thought that would have made her a sufficiently helpless person to cast upon the prisoner the obligation of providing her with proper nourishment. I cannot say there was no evidence at all of such a state of things; there may have been a scintilla of evidence; but, in my opinion, that is not sufficient, because I think, in criminal cases, a mere scintilla of

HOUSE OF LORDS.

[Before the LORD CHANCELLOR (Lord Westbury), Lord CRANWORTH, Lord CHELMSFORD, and other Lords.]

BLADES V. HIGGS.—May 16 and 18, and June 13.

Fera natura-Game-Property-Trespasser. If a trespasser finds and kills game upon the land, or within the franchise of A., the qualified property which A. had in such game when alive, ratione soli or ratione privilegii, becomes absolute in A., and not in the trespasser; and such absolute property in the dead game remains in A., even if the trespasser finds, kills, and carries it off the land in one continuous act. Lord Holt's third proposition in Sutton v. Moody (1 Ld. Raym. 250) disapproved of by Lord Chelmsford. This was an appeal from a decision of the Court of Exchequer Chamber (reported 13 C. B., N. S., 844; 9 Jur., N. S., 1040), affirming a judgment of the Court of Common Pleas (reported 12 C. B., N. S., 501; 8 Jur., N. S., 1012). This case is also reported 7 Jur., N. S., 1289.

The question for decision was, whether game found, killed, and taken upon the land of A. by a trespasser, became the property of A., as much as if it had been found, killed, and taken by A., or by his authority.

The facts, according to the statement of the case for the purpose of the appeal to the Court of Exchequer Chamber, were as follows:

"William Blades, the plaintiff (and appellant) is a fishmonger and licensed dealer in game at Stamford, in the county of Lincoln, and the defendants (and respondents) William Higgs and Thomas Percival, are, the former the steward, and the latter a servant, in the employ of the Marquis of Exeter. Between seven and eight o'clock on the morning of the 16th October, 1860, the plaintiff bought of a man, named Yates, two bags, containing about ninety rabbits, and ordered them to be consigned to him at the Midland station at Stamford. The plaintiff, upon the purchase, paid 47. 15s. for the rabbits. At four minutes before nine the same morning the plaintiff went to the Midland station with a barrow, for the purpose of bringing the rabbits away to his shop. The bags arrived, directed to the plaintiff, with one of his own printed labels, and the plaintiff paid 4s. for the carriage of them to Stamford, and they were delivered to him. As he was proceeding to put the two bags in the barrow, and before he had got them on, the defendant Higgs came up to the plaintiff and said he wanted to see what was in the bags, to which the plaintiff said he should not allow him; and, with the assistance of a porter, the plaintiff lifted the bags in the barrow. The defendant Higgs remained there until two policemen came, and then he directed them to see what the bags contained. The plaintiff said he might. One of the policemen looked into