C. P.]

Ex pa te Bayley, 9 B. & C. 691; Re Thompson, 1 Ex. 864.

BOVILL, C.J.-This action was brought to recover back as money had and received to the plaintiff's use, part of the premium paid to his master upon his apprenticeship. The consideration for the premium was the master's promise to instruct and keep him during the term; this must be governed by the ordinary rule concerning contracts of this kind. Where there is no fault on the part of the person who makes the promise, and he partly performs his contract, none of the consideration can be recovered. There may be exceptions with regard to contracts which can be severed; as, for instance, if a man purchase and pay for ten sacks of corn at so much per sack, and six sacks only be delivered, he can recover clearly the price of four sacks under any circumstances, because the contract can be severed as to each sack. Here, however, one contract was made for the whole period of the service, and the premium was paid for the whole of that term at the commencement of the apprenticeship. The master received and taught the boy according to the covenants of the deed for about a year, when the teaching was put an end to by the master's death. Personal instruction was necessarily terminated, and unless some express stipulation were contained in the deed to the contrary, the whole contract was at an end by the act of God. In the same way the permanent illness of the apprentice has been considered a sufficient conclusion of the contract. There is no right of action here upon the contract itself, for there is no provision as to what should happen upon the death of either party; that being so, the usual consequence must follow, viz., the end of the contract. It has been said that there is an equity against the executor for the return of part of the premium under the circumstances of this case. There is no principle, however, upon which such a return could be apportioned. The services of an apprentice are at first but of little value, and the duties of the master are at the same time more burdensome. This is to some extent recognised by the scale of wages agreed to be paid to the apprentice, but it is impossible to say how far that scale represents the relative value of the respective duties. There is no instance that I am aware of in which an action has been brought successfully upon an ordinary apprenticeship under circumstances like the present. Sometimes, however, an application for return of premium has been made upon attorneys' articles of clerkship. In Ex parte Bayley (9 B. & C. 691) a clerk had been articled to one of two partners, and the application was made for a return by the surviving partner of part of the premium paid to the deceased. The amount found by the master was ordered to be refuunded, but Lord Tenterden was careful to state his opinion that the case was not to be decided by any strict rule of law. The court came to that conclusion with reference to their special jurisdiction over attorneys, and also in consequence of the Act of Parliament which prohibits attorneys from having more than a certain number of clerks. On the other hand, Re Thompson (1 Ex. 864) is an instance of the refusal of a court to order the repayment of any portion of a premium by an attorney whose articled clerk died within a month after he was articled for five years. It was admitted that no action would lie, and Pollock, C. B. stated that it was an appli

[C. P.

cation to the equitable jurisdiction of the court. They declined to order the return of any part of the premium. There could not be a stronger case than this against the contention on the plaintiff's behalf in this case. Notwithstanding the general jurisdiction of the court over its officers, they refused to exercise it in opposition to the law as it related to apprenticeships of an ordinary description. We have then an express decision of the Exchequer confirming the absence on the plaintiff's side of any claim, either in justice or at law, for the return of this premium. The master and the apprentice must each do all he undertakes, and should be stopped only by the act of God, as, for instance, the death of either of them. We have been pressed with the case of Hirst v. Tolson (19 L. J. 441, Ch.). There the ViceChancellor had referred to the master to inquire what proportion of the premium ought to be returned by the executors of a solicitor to a clerk who had been articled to him for a term of five years. The solicitor died about two years after the clerk was articled. Lord Cottenham upon appeal affirmed the decree, but he did so upon the notion that there existed a debt at law due to the clerk upon the partial failure of the consideration for the premium. As the ground of his decision he relied upon the case of Stokes v. Twitchen (8 Taunt. 892); that case, however, decides no such point, nor can it be so inferred from it. The plaintiff there sought to recover the whole premium on the grounds of the indenture being void, and the failure of the whole consideration. The plaintiff was nonsuited, because she did not come into court with clean hands, and there is no allusion in the judgment of Gibbs, C. J. to the plaintiff's right to recover part of the premium if the consideration should partially fail. Lord Cottenham's judgment therefore, as far as it is based on that case, was a mistake. Independently of that case, he referred to two other cases as to the jurisdiction of courts of equity in a matter of that kind. I find on reference to the first of these cases, Soam v. Bowden (Finch's Reps. 396), that the executors there expressed a willingness to pay back part of the premium after the satisfaction of the specialty debts, or to carry out their testator's covenant, as the court should direct. And in the other case, Newton v. Rouse (1 Vern. 460), the grounds of apportionment, which Lord Cottenham thought were difficult to discover, are probably explained in the note to Raithby's 3rd edit. of Vernon, as mentioned in 1 Story's Equity Jurisprudence, s. 472. According to the pleadings, the case seemed to have been decided on the ground of mutual mistake or misrepresentation. It seems, therefore, that the cases on which the Lord Chancellor relied in Hirst v. Tolson, failed to support the proposition which he laid down. That decision is, therefore, very unsatisfactory, and the case in the Exchequer is an authority directly the other way. Upon principle, too, it seems to me that there are no grounds for the decision of the present case arrived at in the court below. The rule will be made absolute.

WILLES, J.-I am of the same opinion. The court cannot assume a jurisdiction to overrule the contract between the parties. The contract in this case is clear, that in consideration of the premium the master entered into a bargain between himself and the apprentice; he was to instruct the apprentice, and the apprentice was to serve him for six years, provided that they should both so long live. I put

out of consideration the obligation to clothe and feed the apprentice, sometimes added to that of teaching, which, according to 2 Williams on Executors, 6th edit. 1631, might survive against the executors. It would be extraordinary if, upon the contract as it is, the master should have to pay back the premium, or part of it, because one of the parties should die. It is a well known rule of law that the introduction into a contract of terms which the law assumes to be part of the contract, has no effect upon the contract. If the apprentice died, could the master be called upon to return the premium? Certainly not; but there is no greater reason for the return by executors upon the master's death, unless it be by the custom of the place. By the passage I have alluded to in Williams on Executors, there seems to have been a custom in London binding executors to get an apprentice of their testator into another place of the same trade; and probably this might to some extent explain the decision of the case in Finch. With regard to the case of Hirst v. Tolson, besides concurring in the observations of the Lord Chief Justice, I think the case very unsatisfactory, although I desire to speak of it with great reserve as an equitable decision. I prefer the course of common law, which is clear. Except by authority of the paternal, or, I should rather say masterful, jurisdiction of the Superior Courts over attorneys, there is no case of interference at common law under circumstances of this kind. I observe at 312 n.(a) of 1st Wms. Saunders the case of Cuff v. Brown, cited from 5 Price, 297. There the Court of Exchequer held that where the apprentice ran away after a short time, and enlisted as a soldier, and the master on his return refused to take him back, the court could not compel any return of the premium. The note goes on to say, However, in the case of an attorney's clerk the Court of King's Bench decided otherwise, considering that they had a more extensive authority over their own officers: (Er parte Prankerd, 3 B. & Ald. 257.) I think that the nonsuit should here be entered not merely as a matter of law, but also because as a matter of business a watchmaker would probably be at a loss, amounting to the whole of this premium, in the first year of an apprentice's service.

SMITH, J.-I am of the same opinion. Independently of the rule of law that an action for money had and received can, with very few exceptions, only be brought upon a total failure of consideration, the defendant is not here liable upon the written contract between the parties; the intention was that there should be no return of the premium. The master was to teach for six years upon the condition necessarily implied that both the master and apprentice should so long live. I cannot imply from the terms of the contract that in case of death any part of the premium should be returned. If that had been the intention, it might have been easily provided for in the written covenants. The parties must have known the possibility of the death of either within the term of service. If the boy had died before the expiration of the six years it might be a loss to the master greater than the amount of the premium, yet it is not suggested that he could have a remedy. It has been held that he could not recover if the boy were disabled by permanent illness: (Boast v. Firth, 19 L. T. Rep. N. S. 264; L. Rep. 4 C. P. 1.) It also seems to me that this action cannot lie where the contract has been partly performed on both

[C. CAS. R.

sides, for the further reason that in order to arrive at an equitable return of the proportion of the premium lost by the apprentice it would be necessary to consider the comparative usefulness of the apprentice to the master at the various periods of the service, the degree of improvement acquired by the apprentice at the master's death, and various other circumstances. The measure of injury incurred cannot be obtained merely from the proportion of time. The only way in which such a claim as this could be made would be by a special action upon an implied contract, which cannot here be found. Neither can the plaintiff obtain any assistance from the authorities. It is certainly a strong circumstance against his claim that no case of an action for return of a premium is to be found in the books. The only attempts to obtain any return have been made under the special jurisdiction of the courts in respect of attorneys; and in one of them the court refused to interfere, on the ground that the matter was full of difficulties. The only common law authority which at first sight appeared to be in the plaintiff's favour is that mentioned in Hirst v. Tolson. My Lord has shown that Lord Cottenham entertained a mistaken view of the case upon which he relied, and has thereby disposed of the argument founded upon that authority.

BRETT, J.-This seems to me to be a clear case. The sum of money paid to the master as premium was in respect of a continuing consideration, that is to say, a duty to be performed by the master throughout six years if both lived for that time. The master's duty was to instruct the apprentice personally, and death was no breach of the contract on his part. It is said that without any breach of his duty, which was the consideration for the money he received, his executors are to return the premium or part of it. There was no total failure of the consideration, nor was there any rescission of the contract. The case, therefore, comes within the rule that there can be no recovery of any part of a specific sum paid for a specific consideration of which there has been a merely partial failure. The cases cited from Chancery do not affect this point, and the common law authorities in favour of the plaintiff's claim are based upon the special jurisdiction of the courts over their officers.

Rule absolute.

Attorney for plaintiff, Burton, for E. S. Bent, Manchester. Attorney for defendant, W. A. Holcombe, for T. E. Jones, Manchester.

CROWN CASES RESERVED. Reported by JOHN THOMPSON, Esq., Barrister-at-Law.

Saturday, Jan. 21, 1871.

(Before KELLY, C.B., CHANNELL, B., KEATING and
BRETT, JJ., and CLEASBY, B.)
REG. v. DUNNING.
Perjury-Indictment.

An indictment for perjury committed at quarter sessions alleged" that at," &c., " a certain indictment for misdemeanor, in which A. was prosecutor and B. and C. defendants, came on to be tried in due form of law, and was then and there tried by a jury, &c., upon which said trial the now defendant appeared as a witness, and was then duly sworn before the justices," &c.

Held, upon an objection that the court before which the perjury was committed had no jurisdiction, because the indictment did not show the misdemeanor to be one triable at quarter sessions, that the indictment sufficiently alleged the substance of the offence charged against the now defendant, and that the court had competent authority to

administer the oath.

CASE reserved for the opinion of this Court by Pigott, B.

The prisoner Henry Dunning was tried and convicted before me at Shrewsbury, at the last summer assizes, upon an indictment for perjury, which alleged in substance as follows, viz.:

Shropshire. The jurors for our Lady the Queen, upon their oath, present, that heretofore-to wit, at the general quarter sessions of the peace of our Sovereign Lady the Queen, holden for the county of Salop, on the 28th June 1870, at the Shire Hall, in Shrewsbury, in the said county, before Sir Baldwin Leighton, Bart., Sir William Curtis, Bart., and others, their associates, her Majesty's justices of the peace, assigned to keep the peace in the county aforesaid, and also to hear and determine divers felonies, trespasses, and other misdemeanors in the same county done and committed, a certain indictment for misdemeanor, in which John Davies, of the Bull's Head, Lawley Bank, in the said county, was the prosecutor, and Isaac Rowlands and John Davies were the defendants, came on to be tried in due form of law, and was then and there tried by a jury of the country, in that behalf duly sworn, between the parties aforesaid, upon which said trial Henry Dunning appeared as a witness for and on behalf of the said Isaac Rowlands and John Davies, the defendants in the indictment aforesaid, and was then duly sworn and took his corporal oath upon the Holy Gospel of God, before the said Sir Baldwin Leighton, Bart., Sir William Curtis, Bart., and others, their associates, so being such justices as aforesaid, that the evidence which he, the said Henry Dunning, should give to the court there, and the said jury so sworn as aforesaid, touching the matter then in question between the prosecutor in the said indictment and the defendants therein, should be the truth, the whole truth, and nothing but the truth.

Then, after averments of materiality, it is further presented, that the said Henry Dunning falsely, &c., deposed and swore, &c.

Whereas, &c. (here follow the negatives and the formal conclusion that Henry Dunning so committed perjury.)

It was proved that the indictment was for an offence against the person under sect. 20 of 24 & 25 Vict. c. 100.

At the conclusion of the case for the prosecution it was objected by counsel for the prisoner that the indictment was bad, in not stating what the misdemeanor was, or that it was one triable at Quarter Sessions.

I reserved this for the consideration of this Court, and accepted bail for the prisoner.

G. PIGOTT.

The Hon. Evelyn Ashley for the prisoner.The conviction cannot be sustained. The indictment is bad for not showing the jurisdiction of the court in which the perjury is alleged to have been committed. The indictment only states that a certain indictment for misdemeanor, to which the defendant was a party, came on to be tried before the court of quarter sessions; it sets out no particulars, and does not show that it was a misdemeanor that the court of quarter sessions had power to try. [KEATING, J.-It alleges that it came on to be tried in due form of law.] That averment would be satisfied by showing that the court had all the usual formalities, such as a judge and proper officers, but it is not

[C. CAS. R.

a sufficient averment of jurisdiction. The indictment should have set out the ingredients of the offence, so that it would appear that the quarter sessions had jurisdiction to try it. [CHANNELL, B., referred to the 14 & 15 Vict. c. 100, s. 20, which enacts, "in every indictment for perjury, &c., it shall be sufficient to set forth the substance of the offence charged upon the defendant, and by what court, or before whom, the oath, &c., was taken, &c., without setting forth the indictment, &c., and without setting forth the commission or authority of the court before which such offence was committed.] That provision still requires the substance of the indictment to be set out, and Rex v. Callanan (6 B. & C. 102) is a decision to the same effect. In Reg. v. Overton (4 Q. B. 83), where an indictment for perj ry alleged that a certain appeal came on to be tried in due form of law before commissioners of assessed taxes, it was held that the indictment did not sufficiently show that it was a judicial proceeding, and that it did not sufficiently state the substance of the offence, according to the 23 Geo. 2, c. 11, s. 1. In Reg. v. Harvey (8 Cox C. C. 99), it was held that the materiality of the false evidence assigned must be apparent on the face of an indictment for perjury, and that the 14 & 15 Vict. c. 100, s. 20, does not cure the want of it. [CLEASBY, B., referred to Lavey v. The Queen (5 Cox C. C. 259; 17 Q. B. 496), where an indictment for perjury committed in a County Court only alleged that a certain action came on to be tried before the judge of the said court, and was in due form of law tried, upon which trial Lavey was duly sworn as a witness before the said judge, "then and there having sufficient and competent authority to administer the said oath;" and it was held that, although there was no express averment that the oath was administered in a judicial proceeding over which the court had jurisdiction, the averment was by necessary intendment involved in the allegation that the judge had sufficient authority to administer the said oath.] By the 5 & 6 Vict. c. 38, the court of quarter sessions is restrained from trying a large number of offences, and therefore it was essential to show that the offence, upon the trial of which the perjury was alleged to have been committed, was one within the jurisdiction of the court of quarter sessions; and although it need not be expressly averred that the court had jurisdiction to try the offence, yet it should appear upon the face of the indictment that the offence was one triable at sessions. In Rex v. Dowlin (5 T. R. 314) it appeared on the face of the indictment that the crime was murder, upon the trial of which the perjury was there committed. The following cases were also referred to: Reg. v. Philpot, 1 Car. & Ker. 112; Reg. v. Fellowes, 1 Car. & Kir. 115; Stedman's case, Cro. Eliz. 137.

No counsel appeared for the prosecution.

Cur. adv. vult.

CHANNELL, B., delivered the judgment of the Court as follows:-In this case the prisoner was tried and convicted at the last summer assizes held at Shrewsbury before Pigott, B., for perjury committed on the trial at the general quarter sessions of the peace for the county of Salop, of an indictment for misdemeanor against Isaac Rowlands and John Davies for an offence against the person of John Davies under sect. 20 of 24 & 25 Vict. c. 100. The case at the trial was

fully proved in every necessary particular; but it was objected on behalf of the prisoner, and has been argued before us, that the indictment was bad in form, and that the judgment should therefore be arrested and the conviction quashed. The objection taken at the trial was that the indictment did not state what the misdemeanor was, which was alleged to have been tried at the quarter sessions, or aver that it was one triable at quarter sessions, i.e., in other words, did not aver that the court of quarter sessions had jurisdiction to try the misdemeanor. This objection, when developed in argument before us, seemed to fall into two objections, first, that the indictment did not set forth the substance of the offence charged upon the defendant; and, secondly, that it did not either expressly aver or show by necessary inference that the court before which the false oath was taken was a competent authority to administer the same. As to the first objection, the indictment alleges that at the general quarter sessions “a certain indictment for misdemeanor came on to be tried in due form of law," in which one Davies was prosecutor, and Rowlands and Davies were defendants, and was then and there tried by a jury, &c., and that the prisoner appeared as a witness upon the said trial, and was then duly sworn, &c. The indictment then sets out the matter sworn to by the prisoner, avers its materiality, and negatives its truth and truthfulness. The objection taken is, that it does not state the subject-matter of the indictment for misdemeanor which was tried at the sessions. But that seems rather to point out an alleged defect in not stating the substance of the offence charged against the defendants who were tried at the sessions than a defect in not stating the substance of the offence charged against the defendant tried at the assizes. The substance of the offence charged against him is, that in a judicial proceeding he swore to the truth of certain facts which are set forth, which at the time of so swearing he knew to be false. that it is necessary to state," says Buller, J., in Rex v. Dowlin (5 T. R., 311), "is that there was a certain cause, &c., and that it came on to be tried in due form of law, &c." It is true, as pointed out by the counsel for the defendant, that in that case it was alleged that one Kimber was tried upon a certain indictment for murder, &c.; but it seems to us that neither Lord Kenyon nor Buller, J., rely upon the presence of the words, "for murder" in stating the proposition of law, but they mention them only in their relation of the actual facts of that case. In the case of Rex v. Callanan (6 B. & C. 102), all that was stated was the substance of what the defendant swore that he did, &c., upon affidavit before a commissioner. The indictment did not state the cause for or in respect of which the affidavit was made. Yet Abbott, C. J., says that it set forth "the substance of the matter sworn," using that expression as equivalent to "the substance of the offence charged upon the defendant, and holding the case to be consequently within the statute 23 Geo. 2, c. 11. In Lavey v. The Queen (17 Q. B. 496) the objection taken was, that it was not shown that the County Court had jurisdiction over the suit in which the alleged false oath was taken, because the nature of the suit was not sufficiently described." It was argued," says Parke, B., in the judgment, that in setting forth "the substance of the offence," it was not sufficient to state "the

All

[C. CAS. R.

substance of the matter sworn to," and aver that it was false, and to allege the authority of the judge to administer the oath; but the indictment was nevertheless held to be sufficient on the ground that it appeared that there was a judicial proceeding, and that the defendant was sworn and stated certain matter which was false, and that the judge had power to administer the oath. The ground of decision is, that the substance of the offence charged upon the defendant sufficiently appeared, and that the court had competent authority to administer the oath. These cases seem to us to be authority for the correctness of the suggestion we have made as to the meaning and construction of the statute, and for holding that in the present case the substance of the offence charged against the defendant sufficiently appears. As to the second point, if the case had depended upon the statute 23 Geo. 2, c. 11, we should have probably thought that the indictment was insufficient. That statute was passed in order to obviate difficulties in the form of indictments for perjury. It states what it shall be sufficient to set forth, viz., the substance of the offence charged upon the defendant, and by what court and before whom the oath was taken, "averring," it says, "such court or person or persons to have a competent authority to administer the same," with the proper averment or averments to falsify the matter. charged, &c., without setting forth, &c. After that statute, the question treated by the courts in every case was, whether an indictment contained the averments mentioned in that statute or their equivalents. If it did, it was good without more. But then, by stat. 14 & 15 Vict. c. 100, passed to relax still further technical forms of indictments, it is enacted in sect 20 that [reads it]. almost identical in terms with sect. 1 of the 23 Geo. 2, c. 11, except that it omits the words "averring such court or person or persons to have a competent authority to administer the same." This omission seems to us conclusively to show the intention of the Legislature, that this allegation, or its equivalent in the indictment, is a technical strictness which may well be dispensed with, the matter of it being left for proof at the trial. Having then determined that the substance of the offence alleged against the defendant in the present inindictment is sufficiently stated, we are of opinion that the indictment contains everything required by sect. 20 of 14 & 15 Vict. c. 100, and is therefore by the express terms of the section sufficient, althought it does not contain any express or equivalent averment that the court had competent authority to administer the oath. We are therefore of opinion that the indictment was sufficient, and that the conviction in this case was right, and must be affirmed.

Attorney for prisoner, Smith.

It is

Conviction affirmed.

(Before BOVILL, C. J., WILLES, J., CHANNELL, B., PIGOTT, B., and HANNEN, J.)

REG v. HARRIS AND COCKS. Lewdness-Exposure in a public place—Urinal. The prisoners committed a gross act of lewdness in an inclosed urinal, divided into compartments, adjoining to a public footway in a public park. The public had access to the urinal.

Held, that the urinal was a public place, and that

the commission of the indecency therein was indictable as a nuisance.

CASE reserved for the opinion of this Court by the Assistant-Judge at the Middlesex Sessions on the 23rd Nov. 1870.

Samuel Harris and Henry Cocks were tried before me upon the following indictment:

Middlesex. The jurors for our Lady the Queen upon their oath present that Samuel Harris and Henry Cocks on the 10th Oct. in the year of our Lord 1870, in a certain urinal frequented and resorted to by many of the liege subjects of our Lady the Queen for a necessary purpose and in a certain open and public place, called Hydepark, situate in the parish of Saint George, Hanoversquare, in the county of Middlesex, and near and adjacent to a certain highway and footpath there situate and in the sight and view of many of the liege subjects of our said Lady the Queen then and there being, and then and there passing and repassing, did meet together for the purpose of committing with each other divers lewd and unnatural practices, and did then and there commit and perpetrate with each other divers such practices as aforesaid, and that he the said Samuel Harris did then and there in such open and public place as aforesaid, and within the sight and view of such persons as aforesaid, unlawfully and wickedly expose. [Then followed a specific averment of the lewd practices.]. great damage and common nuisance of all the liege subjects of our said Lady the Queen then and there being and then and there passing and repassing, against the peace of our said Lady the Queen, her crown, and dignity.

To the

Complaints having been made to the police of practices at the urinal in question, two police constables in plain clothes were directed to watch the place, and, on the 10th Oct., between three and four o'clock in the afternoon, they found the two prisoners in the urinal. They were standing facing each other, but on seeing the officers, each prisoner retired into one of the compartments in the urinal.

The police officers then went to the further end of the urinal where there were openings enabling them to see into the urinal; they then saw Harris leave the compartment which he had previously entered and go to the compartment in which Cocks then was; Cocks turned round to Harris, and the acts of indecency specified in the indictment were committed.

The officers then ran round to the principal entrance, and took both prisoners into custody in the urinal.

The urinal is open to the public, and is situate in Hyde-park, near to a lodge, the window of which on a first floor commands a view of the urinal, the distance between the lodge and the urinal being 14ft. 6in.

The urinal is approached by a gate opening from the public footpath, and there is also access to it by another gate communicating with a small garden belonging to the lodge.

Harris pleaded guilty to the whole charge, and I told the jury that, for the purpose of the trial, they might, if they believed the evidence, find Cocks guilty upon the first count, but they must be satisfied that the prisoners had the intention imputed to them by the second count, before they could justifiably return a verdict of guilty on that

count.

The jury found Cocks guilty on the first count, and not guilty on the second count.

Sentence was postponed that the opinion of this Honourable Court might be obtained, and in the mean time both prisoners were discharged on bail. The question I have to submit to this HonourMAG. CAS.-VOL. VII.

[C. CAS. R.

able Court is, whether, in point of law, the conviction of Cocks can be sustained?

If this question is determined in the affirmative, the conviction is to be affirmed, and the court of sessions may proceed to pass sentence upon both prisoners; but if otherwise, the conviction of both prisoners, notwithstanding Harris's plea of guilty, is to be quashed.

WILLIAM H. BODKIN, Assistant Judge. Giffard, Q. C. (Moody with him) for the prisoner Cocks. No doubt the prisoner committed a gross act of indecency in the urinal, but the question was whether the urinal was such a public place as makes the act an indictable nuisance at common law. This was not a place open to public view, it is divided into compartments and was intended to screen persons from the public gaze. Reg. v. Orchard (3 Cox, C. C. 248), is in point. There the indecent act was done in an urinal in Farringdon-market, it was an enclosure formed of Portland stone, with divisions or boxes like urinals at railway stations. It was open to the public for certain public purposes, but otherwise enclosed. To render an urinal a public place it must be so open to the gaze of the public as to be a public nuisance. [WILLES, J.-Ör, in other words, it must be so publicly done as to affect two or more of Her Majesty's subjects.] It is no offence that persons use it for a lawful purpose, and in some sense in every such case that is an indecent act. [BOVILL, C. J.-Here I understand from the case that the act was done not in a compartment but in the open part of the urinal. Does a public place cease to be a public place by reason of part of it being partitioned off for a convenient purpose so far as regards the part so partitioned off?] Reg. v. Orchard is an authority that it does. No doubt this point was reserved to give an opportunity of questioning the soundness of the decision in Reg v. Orchard.

What

Harris, for the prosecution, was not called upon. BOVILL, C. J. If all the facts had been clearly stated in Reg v. Orchard, and there had been a clear opinion expressed by the Judges, it might have been some authority against a conviction in this case; but the facts are so indefinitely stated, that I cannot understand the case. ever construction is to be put on that case, I am of opinion that it has no application to the present. The prisoners are charged and convicted of having committed an offence in an urinal frequented by many of the Queen's subjects, and in a certain open and public place called Hyde Park, and near to a certain highway and footpath, and in the sight and view of many of the Queen's subjects. The only question reserved is whether there was any evidence on which they could be properly convicted. If the learned Assistant-Judge was bound to have told the jury that the urinal was not a public place, the conviction was wrong; but inasmuch as he was not bound to tell them that, the conviction must stand. Upon the case it appears that this was a public urinal adjoining a public footway, from which there was access to the urinal, and there were what are termed divisions or compartments in it. Such of the public as desire to do so may have recourse to it; and it was, therefore, as much a public place as a thoroughfare. Whether it was a place of larger or smaller extent, as, e.g., in a public square or in a court, cannot affect the question whether it was a place of public resort. There is no other point reserved but

C