confined in the penal prison or solitary cells, if any, attached to such penitentiary, as in the prison rules may be prescribed.

The first part of this clause makes it a felony for a convict to escape, when being conveyed to any penitentiary, whether he stands convicted of a felony or a misdemeanor. The attempt to escape, when being so conveyed, is not provided for by the clause, and would. in consequence, fall under the common law, and be a misdemeanor, punishable by fine or imprisonment, or both.

Sec. 27. Every prisoner in any penitentiary, who at any time attempts to break prison, or who forcibly breaks out of his cell, or makes any breach therein with intent to escape therefrom, whether successful or not, shall, on conviction thereof, be punished by an addition not exceeding one year to the term of his imprisonment, besides forfeiting the whole of the period of remission of sentence earned by him, and being again confined as in the next preceding section mentioned.

This clause does not say whether the offences therein mentioned shall be felonies or misdemeanors, and to establish the degree of each of these offences recourse must be had to the common law rules on the subject.

Sec. 29.-Every person who rescues or attempts to rescue any prisoner, while being conveyed to any

penitentiary, or while being imprisoned therein, or while passing to or from work at or near any penitentiary, and every person who, by supplying arms, tools or instruments of disguise, or otherwise in any manner aids any such prisoner in any escape or attempt at escape, shall be guilty of felony.

The punishment, not being specially provided for, would be guided by sec. 88 of the Procedure Act.

In Reg. vs. Payne, 12 Cox, 231, it was held that a crowbar came within the words "any other article or thing" in the clause of the Imperial Prisons Act of 1865, to which the above section of the Canadian Statute corresponds. There is no doubt that it would be so held here: the words "arms, tools," clearly include a crowbar.

Sec. 30-Every person having the custody of any such prisoner as aforesaid, or being employed by the person having such custody, as a keeper, turnkey, guard or assistant, who carelessly allows any such convict to escape, shall be guilty of a misdemeanor, and, on conviction thereof, shall be liable to fine or imprisonment or to both, at the discretion of the Court; and every such person as aforesaid, who knowingly or willingly allows any such convict to escape shall be guilty of felony.

The last part of this clause makes a voluntary escape as regards the penitentiary and any prisoner being conveyed thereto, a felony, whether the prisoner is convicted of a felony or of a misdemeanor, and is, in

this respect, a deviation from the common law.

The

first part of the clause is the common law on the subject.

PUNISHMENT FOR FRAUD, CHEATING OR CONSPIRACY.

Sec. 86.-Whosoever is convicted of fraud or of cheating, or of conspiracy, shall, in any case where no special punishment is provided by any statute, be liable to be imprisoned in the penitentiary for any term not exceeding seven years, and not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary confinement.

The Imperial Act, 14-15 Vic., ch. 100, sec. 29 (Lord Campbell's Act), also provides for the punishment of cheats, frauds and conspiracies, not otherwise specially provided for.

In Reg. vs. Roy, 11 L. C. Jur. 94, Mr. Justice Drummond said: "The only cheats or frauds punishable at common law are the fraudulent obtaining of the property of another by any deceitful and illegal practice, or token, which affects or may affect the public, or such frauds as are levelled against the public justice of the realm."

It is not every species of fraud or dishonesty in transactions between individuals which is the subject

matter of a criminal charge at common law : 2 East. P. C. 816.

Fraud, to be the object of criminal prosecution, must be of that kind which in its nature is calculated to defraud numbers, as false weights or measures, false tokens, or where there is a conspiracy: per Lord Mansfield, Reg. vs. Wheatly, 3 Burr. 1125.

So cheats, by means of a bare lie, or false affirmation in a private transaction, as if a man selling a sack of corn falsely affirms it to be a bushel, where it is greatly deficient, has been holden not to be indictable: R. vs. Pinkney, 2 East, P. C. 818.

So, in R. vs. Channell, 2 East, P. C. 818, it was held that a miller charged with illegally taking and keeping corn could not be criminally prosecuted.

And in Rex. vs. Lara, cited in 2 East, P. C. 819, it was held that selling sixteen gallons of liquor for and as eighteen gallons, and getting paid for the eighteen gallons, was an unfair dealing and an imposition, but not an indictable offence.

The result of the cases appears to be, that if a man sell by false weights, though only to one person, it is an indictable offence, but if, without false weights, he sell, even to many persons, a less quantity than he pretends to do, it is not indictable: 2 Russell, 610; Reg. vs. Eagleton, Dears. 376, 515.

If a man, in the course of his trade, openly and publicly carried on, were to put a false mark or token upon an article, so as to pass it off as a genuine one, when in fact it was only a spurious one, and the article was sold and money obtained by means of that false token or mark, that would be a cheat at common law, but the indictment, in such a case, must show clearly that it was by means of such false token that the defendant obtained the money: by Chief Justice Cockburn, in Reg. vs. Closs, Dears. & B. 466; 7 Cox, 494.

Offences of this kind would now generally fall under the "Trade Marks Offences Act": see, ante, Vol. 1, page 113.

Frauds and cheats by forgeries or false pretences are also regulated by Statute: see, ante, Vol. 1 pages 65,

584

All frauds affecting the Crown or the public at large are indictable, though arising out of a particular transaction or contract with a private party. So the giving to any person unwholesome victuals, not fit for man to eat, lucri causa, or from malice and deceit is an indictable misdemeanor: 2 East. P. C. 821, 822. And if a baker sell bread containing alum in a shape which renders it noxious, although he gave directions to his servants to mix it up in a manner which would have rendered it harmless, he commits an indictable offence: he, who deals in a perilous article, must be wary how he deals; otherwise, if he observe not proper caution,. he will be responsible. The intent to injure in such