"crossed cheque may be reopened or uncrossed by the "drawer writing between the transverse lines and initiall"ing the same the words 'pay cash"" do not appear in the English Act, and except the verbal alterations required to denote the corporate character of our banks. These alterations have not as yet been made in sec. 31 of R. S. C. cap. 165, providing punishment for fraudulent alterations, etc., of crossings so that it is doubtful whether that section protects crossings made under our own Act though it protects those made under the English Act.

The Act to amend the Bills of Exchange Act 1890, passed during the present sittings, does not alter the sections dealing with crossed cheques and it only bears on the subject in the declaratory section 9. "The rules of the common law of England, including the law merchant, save in so far as they are inconsistent with the express provisions of the Act as hereby amended shall apply and shall be taken and held to have applied from the date on which the said Act came into force to bills of exchange, promissory notes and cheques." This provision corresponds to sub-section 2 of section 97 of the English Act and was in the Bill introduced in 1890, but was struck out in the Senate.

The English legislation was followed in New South Wales in 1857 by 20 Vict. No. 7 (n).

Crossed cheques were introduced into Victoria in 1864, and the English Crossed Cheques Act was followed in 1876 by the Victorian Statute No. 562 (o).

In New Zealand the Bills of Exchange Act, 1883, followed the English Act of 1882 and repealed previous legislation.

If the Australian reports should be added to the Law Society's library it may be found that they contain some cases bearing on crossed cheques.

TORONTO.

(n) Cary's Statutes, Vol. I. p. 74. (0) Hamilton on Banking, p. 88.

H. W. MICKLE.

CURIOSITIES OF THE CRIMINAL LAW.

Time, which brings healing on its wings, has marvellously mitigated the pains and penalties of our old criminal law. These would seem incredible were they not vouched for as verities, curious in the extreme, that were "laid prone," as Sir Matthew Hale would say, through sheer mockery of their purpose.

Becomes more mock'd than fear'd: so our decrees

Dead to infliction, to themselves are dead;
And Liberty plucks Justice by the nose.

So said the Duke Vincentio to Friar Thomas in the well known play; and so it has ever been. A great many of those ancient severities have been "laid prone" since Sir Matthew's time; for that famous Judge and historian of the Pleas of the Crown ruled and wrote in Stuart days, and died in the year 1676. Not a few, he tells us, were prone when he lived; for instance, it had ceased to be felony and death to sell a horse to a Scotchman. Jack Cade, if Shakspere knew his mind, resolved that when he was king it should be felony to drink small beer; and that, we may say, looking at some actual cases, would bave been no great sharpening of law. There are now fewer executions in England every year than were provided often in a single morning. We read with horror of those times when the lightest heed was taken of the punishment of death. It was no rare and solemn sentence, but staple judicial routine that might even be enlivened with a joke to colour its monotony. Thus Lord Bacon quaintly tells of his father, Sir Nicholas, that, when appointed a Judge on the Northern circuit, "he was by one of the malefactors mightily importuned for to save his life; which, when nothing he had said did avail, he at length desired his mercy on account of kindred. Prithee,' said my lord Judge, how came that in?' Why, if it please you, my lord, your name is Bacon and mine is Hog; and in all ages Hog and

Bacon have been so near kindred that they are not to be separated.' 'Ay, but,' replied Judge Bacon, 'you and I cannot be kindred except you be hanged; for Hog is not Bacon until it be well hanged!''

Crime, as we know, was not lessened by extreme severity. The result of ordering men to do what they will not or cannot do is either absurd, or something worse. What else can be expected, especially if action of some kind be enforced? The law used to compel juries, if they acquitted any person accused of murder, not merely to acquit him, but to name the guilty party. Whenever they could not do this to the satisfaction of their consciences they declared that the real murderer was John-a-Noakes. Jack Noakes, as he was familiarly called, was found guilty, over and over again, of a series of horrible atrocities. When larcenies were grand and petty, and a few shillings, more or less, in the value of a stolen article made the question one of life or death to the thief, juries were wont, in the most open way, to deal in, what were called by Blackstone, pious perjuries. It was a common thing for them to find that five-pound notes or ten-pound notes of the bank of England were articles of the value of twelve-pence, four shillings and six-pence, or twenty-nine shillings, as the humanity of the case required. In fact, the result of the too great stringency of law was a great laxity of practice. This was illustrated in the happiest way by the English bleachers who petitioned parliament to "protect" them, not by any national policy or McKinley-bill legislation, but by withdrawing the capital punishments of stealing from bleaching grounds; in other words, by exempting all larcenies of bleaching fabrics from the dread penalty for almost every crime. A milder and more rational punishment, they believed, would be more likely to ensure convictions.

Numerous, then, as executions once were, they did not represent a tithe or hundredth part of the amount of what was pronounced capital crime, nor the number of persons who were sentenced to death without the smallest intention. of hanging them. The English people never were so savage as their laws have sometimes been. A short time before the

abolition of capital punishment for stealing to the amount of forty shillings in a dwelling house, Lord Kenyon sentenced a young woman to death for that offence, whereupon she fainted, and the Judge, in great agitation, exclaimed, "I don't mean to hang you! Will nobody tell her I don't mean to hang her?" Of the pious perjuries which found a sanctuary in the jury box, who does not feel that the chief crime was in the law, not in the administrator? And who can wonder at Sir Samuel Romilly's objection to the "looking upon the evasion of our criminal laws with so much. favour as to regard the profanation of the name of God, in the very act of administering justice to men, as that which is, in some degree, acceptable to the Almighty, and as partaking of the nature of a religious duty?"

A great many refinements were at one time found in the laws relating to burglary; but the knotty question of what was passable Latin for "burglarious" and "burglar," in the framing of indictments, was for a long time the delicacy of the season. More offenders escaped by the writing of "burgariter," or "burgenter," for "burglariter," than by proof of innocence; but, although these errors were common and fatal flaws in an indictment, it was ruled that "burgulariter" was "good Latin enough" to serve the purposes of criminal pleading on the Crown side. Some of the old subtleties of homicide are no less interesting. Accidental homicide, if it arose out of the doing of a lawful act, was held excusable; if it arose out of a trespass, not a larceny, was manslaughter; but, if it arose out of a larceny, was murder. Eden, an old English lawyer, put the case thus: "A man shooting at a bird, and not using proper and ordinary caution to prevent danger, unfortunately happeneth to kill his neighbour. The guilt of this man, in the eye of our law, and, consequently, the proportion of his punishment, will depend partly on the nature, shape and size of the bird, and partly on the intention of the man with respect to the bird, but will have no connection whatever with the act of homicide, If the bird chanceth, in evidence, to prove a wild pigeon. no man's property, it will be excusable homicide; if a tame fowl, and shot at for the improvement or amusement of the

marksman, it will be felonious and manslaughter, because an unlawful trespass on the property of another; lastly, if the bird were private property, and intended to be stolen, which must be collected from the circumstances, it will be murder." Thomas Hobbes, the philosopher, expressed the law in this form: "If a boy be robbirg an apple-tree, and by some chance fall therefrom, and break the neck of a man standing underneath, the crime consists in a trespass, to the damage, perhaps, of six-pence. Trespass is an offence, but the falling is none, and it was not by the trespass, but by the falling, that the man was slain; yet Coke would have him hanged for it, as if he had fallen of malice prepense." There is also a case reported which combined, in a suggestive way, questions of homicide and burglary. A servant who had attempted to murder his master with a hatchet, but without killing him, was convicted and executed, not for attempted assassination, but for constructive burglary; because, in order to enter his master's chamber, he had been obliged to lift up the latch of a door. It was also cogently argued, and was for a long time unsettled, whether it was burglary to break open a cupboard. When, therefore, the punishment of felony was death, such a case as the following was serious: Some farm servants, left in charge of their master's team, entered his granary by means of a false key, and took out of it two bushels of beans which they gave to his horses. Out of eleven judges, three were of opinion that this was no felony; eight ruled for a conviction, some of the eight formally alleging that the robbery by the accused was for their own gain, because by better feeding of the horses, their own labour would be lessened. The subject of larceny was, as it still is, another source of idle subtleties on the part of criminal lawyers. These could scarcely be seen to more advantage than in the consideration of that element in thieving which consists in carrying the stolen thing away; or, as the books called it, the asportavit. Thus it was held that, if a prisoner removed a package from the head to the tail of a waggon, the asportavit was complete; but if he moved it only by lifting it up where it lay, and standing it on end,