under this section that the person so charged had reasonable cause to believe that the girl was of or above the age of eighteen years.'

Evidence of husband or wife] By s. 20 of that A. (and also by s. 4 of the Criminal Evidence A.), in every charge thereunder and under ss. 52-5 (above) the defendant's spouse is a competent but not compellable witness... at every stage except. a grand jury'; the common law on this point is discussed at p. 144.

Since Leach, 1912, two cases in which defendant had married the prosecutrix since the alleged offence have lost their interest: see dictum per Wills J. Ellis, L. J. Newspaper, p. 646, Dec. 2, 1899; and ib. Nov. 16, 1907, p. 704, where a learned writer points out that s. 20 is not rpd.

Search warrants] See under Apprehension.

'Taking' or 'detaining'] Even under rpd. 3 H. 7, c. 2, which did not contain the words or detain,' detaining a person who originally consented, but afterwards refused to continue, was considered to be within the statute. Brown (who was hanged though he had married the girl), Hawk. P. C. 1, 41 (part 2), 7; East P. C. 454; 1 Russ. Cri. 969.

Consent of female] In s. 55 it is clear that consent does not affect the offence. Thus, it is said that 4 & 5 P. & M. c. 8 (rpd.), which was to the same effect, and had the same age limit (16), was made to prevent children from being seduced from their parents or guardians by flattering or enticing words, promises or gifts, and married in a secret way to their disparagement.' Hicks v. Gore, 3 Mod. 84, 1685; see below. So it was held that it was no excuse that the defendant made use of no other 'seducements but common complements among young people; and . . . that the encouragement to this affair proceeded from the daughter,' he in fact having eloped with and married her, a great fortune.' Twistleton and others, 1 Lev. 257; 1 Sid. 387; 2 Keb. 432, 1669; 1 Russ. Cri. 963, where the court held that there was an offence at common law, viz.: conspiracy and the deceitfull and riotous taking away a girl the statutes 3 H. 7 and 4-5 P. & M. 8 were but for aggravation of punishment and do not create any offence originally' (Keb.). Note that the first part of s. 53 contains no limit of age.

Force] It has been argued that, though by the statute a taking by force is not necessary, still that a person cannot in any sense be said to be taken who goes willingly, as the word take in itself imports the use of some coercion. But where defendant went in the night to the house of B. and placed a ladder against the window, and held it for the daughter of B., a girl of fifteen, to descend, which she did, and then eloped with him; this was held to be a 'taking' of the girl out of the possession and against the will of her father within 9 G. 4, 31, 20 (rpd.), although she had herself proposed to defendant to bring the ladder, &c. Robins, 1 C. & K. 456, 1844. So in Mankletow, 1 D. & P. C. C. R. 159; 22 L. J. M. C. 115; 6 Cox C. C. 143, 1853, where defendant had privately persuaded a girl between twelve and thirteen to go away with him to America, and on the morning of his departure had secretly told her to make a bundle and meet him at a certain spot, and she accordingly left her father's house and met

defendant, and the two travelled up to London together: this was held to be a 'taking under the same A. Jervis Č.J. said of the contention for defendant that the word 'take' must mean taking by force, actual or constructive, that the s. showed that that was not necessary. It was unimportant under that s. (substantially the same as s. 55) whether the girl consented or not; when he met the girl at the appointed place, there was a taking' of her; till that moment, the father had possession of her. The statute was framed for the protection of parents and others having lawful custody': see below. In Timmins, 30 L. J. M. C. 45; Bell C. C. 276; 8 Cox C. C. 40, 1860: C. C. R., defendant induced a girl of fourteen years and a half to leave her father's house, and cohabited with her for three days, and then told her to go home. The jury found him guilty generally (under the same s.), but also found that he did not intend, when he took away the girl, to keep her away from home permanently. The conviction was affirmed, the court insisting on the length of the detention in a situation quite inconsistent with the father's possession out of which it thought he had taken her, but guarding itself against the supposition that if the taking was intended to be temporary only or for a purpose not inconsistent with the relation of father and child,' it would be within the s. Cf. Booth, 12 Cox C. C. 231, 1871.

In Handley, 1 F. & F. 648, 1859, Wightman J. said, 'a taking by force is not necessary; it is sufficient if such moral force was used as to create a willingness on the girl's part to leave her father's home. If, however, the going away was entirely voluntary on the part of the girl, the prisoner would not be guilty of any offence under the statute.' It is not clear what the words in italics mean [unless it be constructive force,' as above], but the last sentence is quite in accord with Jarvis, 20 Cox C. C. 249, 1903, under s. 55, where Jelf J. said that if defendant yielded to her suggestion, taking no active part in the matter,' -not even persuading her-he must be acquitted. Cf. Robb, 4 F. & F. 59, 1864, under s. 55.

Claim of legal right] to the custody, if honest, though mistaken, entitles to an acquittal: Tinkler, 1 F. & F. 513, 1859, per Cockburn O.J.: sed quære.

Reception of the female] A man is not bound to return a girl under sixteen to her father's custody, when she has left home without any inducement and come to him. If, however, he has ever held out any inducement to her to leave, and if, when she has left, he avails himself of her having left to induce her to continue out of her father's custody, this is within the statute, whatever his wishes may have been about the particular time of her leaving. Olifier, 10 Cox C. O. 402, 1866, and Robb, above. Nor is keeping her secretly, if she come to him voluntarily, within s. 55: L. Alexander, 1912.

Fraud] A child engaged as a servant was missing after three months; the mistress gave conflicting accounts, but admitted that she had given her up to someone; it was held that this was sufficient prima facie evidence of an unlawful detention by fraud. If defendant, said Stephen J., 'having got the child, kept her with the intention of handing over to someone else, and did so against the will of the parent, that is a detention, and as she did it by means of falsehoods the detention was fraudulent'; the falsehoods were the

'Possession of Parent.

357

different accounts defendant gave the mother, some of which were admittedly untrue and which Hawkins J. and apparently the four other judges accepted as good evidence of the fraud: Annie Johnson, 15 Cox C. C. 481; 48 J. P. 759; 50 L. T. 759, 1884: C. C. R. The consent set up by defendant was a paper written by her, to which she got the mother, who could not read and knew nothing of the contents, to put her mark; it was not produced, but Hawkins J. held that this story was also evidence of fraud, i.e. in getting the consent (not, it seems, in the detention).

In Bellis, 17 Cox O. C. 660, 1893, where an infant of a few weeks was taken away by a fraud on the mother, the C. C. R. (overruling Barrett, 15 Cox C. C. 658, 1885) laid it down that the fraud-in s. 56-need not be on the child itself.

Conspiracy] In Duguid it was held that though any one claiming a right to the possession of a child could not be prosecuted under s. 56, for taking the child out of the possession, &c., yet whether a mother doing so out of lawful custody is or is not guilty of an offence under this s., any one conspiring with her to do so may still be guilty: 75 L. J. K. B. 470; 22 T. L. R. 506; 21 Cox C. C. 200; W. N. 100, 1906: C. C. R.

The possession of parent, guardian, &c.] In Green and Bates, 3 F. & F. 274, 1862, defendants found the girl, who lived with her father, in the street by herself, and invited her to go with them, giving her drink which made her dizzy, and then behaved immorally. Martin B. directed an acquittal on the ground that the girl was not taken out of the possession of any one; they might not have known that she had a father. No evidence appears to have been given of the purpose for which the girl had left home. The case might now be held to be an offence within 48-9 V. 69, 3 (3). In Mycock, 12 Cox C. C. 28, 1871, under s. 55, Willes J. followed Olifier, and added that unless the girl has given up the intention of returning to the father, she is still Constructively in his custody. In Mankletow, Jervis C.J. said, 'So long as she continues a member of her father's family, and is under his control, she is in his possession.' If a girl leaves her father's house for a particular purpose with his sanction, she cannot legally be said to be out of her father's possession.' Maule J. seems to have ruled in the same way in Kipps, 4 Cox C. C. 167, 1850.

Where a girl lived with her father, and left home to go to a Sunday school, and defendant met her and seduced her, and then brought her back, not knowing who she was or whether she had a father, but not believing she was a girl of the town; it was held that there was no evidence to show that he had reason to know that the girl was under her father's protection: c. q.: Hibbert, L. R. 1 C. C. R. 184; 38 L. J. M. C. 61; 11 Cox C. C. 246, 1869.

A girl, just under sixteen, entitled to real property, came home to her mother's house for holidays. Her mother insisted that she should go to her grandmother's. On this she went to the house of her paternal uncle H. B., and when her mother heard where she was, she desired her to come home to her. The girl did not return to her mother's house, but, with the knowledge of her uncle H. B., went away with and was married to another uncle F. B. F. B. was indicted for fraudulently alluring the girl, and taking her out of her mother's possession, and H. B. for being an accessory before the fact. A

majority of the court held that these facts (on the law there was unanimity) did not sustain the conviction-which seems to mean that the alluring was not fraudulent: for there was abundant evidence,' per Martin B., of a fraud on the mother. Burrell, L. & C. 354; 33 L. J. M. C. 54; 9 Cox C. C. 368, 1863, under s. 53.

The principles of the above cases govern s. 7 of 48-9 V. 69. Where under that s. it was proved that the girl was employed as a barmaid at a distance from her father's home, it was held that she was not in the possession of her father (but in the lawful charge of her employer). Henkers, 16 Cox C. C. 257, 1886.

No consent of parent, &c.] The want of consent of the father must be presumed, if it appears that, had he been asked, he would not have consented: Handley, above. In Hopkins, Car. & M. 254, 1842, Gurney B. seemed to think that where a man by false and fraudulent representations, as by representing that he wished to place her in the service of a lady, induced the parents of a girl between ten and eleven years of age to allow him to take her away, such taking away was an abduction within rpd. 9 G. 4, 31, 20. This would be in accordance with the general principle that a consent obtained by fraud avails nothing. The point is now settled by s. 56; see A. Johnson and Bellis; and Index.

Of the consent of a temporary guardian (such as existed in Hicks v. Gore), East suggests that it deserves good consideration before it is decided, that an offender acting in collusion with one who has the temporary custody of another's child for a special purpose, and knowing that the parent or proper guardian did not consent, is yet not within the statute. For then every schoolmistress might dispose in the same manner of the children committed to her care': P. C. 457. And so Amphlett B. and Coleridge C.J., at Leeds, March, 1875, ruled that by the fraud of the temporary guardian, the latter lost all right to possession of the child, which had reverted to its natural guardian' (10th ed. of this work).

'Fraud vitiates consent'] This proposition is too general': per Stephen J. in Clarence, 1888: it should be limited to deceit about the nature of the act or the identity of the person doing it.

Proof of age] In cases where the offence depends on the age this must be proved in the usual way, by a person who can speak to the date of the birth. A certified copy of the register is now admissible, and coupled with evidence of identity, is proof of age. Weaver, L. R. 2 C. C. R. 85; 43 L. J. M. C. 13; 12 Cox C. Č. 527, 1873. In Robins, 1844, it was held that it was no defence that defendant did not know that the girl was under sixteen, or that from her appearance he might have thought that she was of greater age; followed by Willes J. in Mycock, and Bramwell B. in Olifier, or that he really thought she was of greater age: Booth, ib. The point was finally settled when fifteen judges out of sixteen held that defendant was rightly convicted, though he bonâ fide believed and had reasonable grounds for believing that the girl was over sixteen. Prince, L. R. 2 C. C. R. 154; 44 L. J. M. C. 122; 13 Cox C. C. 138, 1875. Brett J. was the only dissentient judge. 48-9 V. 69, 7, expressly provides that reasonable cause to believe,' &c., is a good defence. For the presumption of the age of child against whom certain offences are committed, see under Children; and Cox, ib.

Proof of the intent] Defendant, a married man, induced a girl of fifteen (whose age he did not know), by proposing marriage, to leave her home, in order to take her from a convent; he was of excellent character, and his motive was honest; Quain J. told the jury that his philanthropy had nothing to do with the charge: guilty: eighteen months' imprisonment: Booth, 12 Cox C. C. 231, 1871, under s. 55. The only intent which it is necessary to prove under s. 55 is that of depriving the parent or other person of the lawful possession of the child: Timmins. The taking may be by a female with a good motive': per Bramwell B. and seven other judges: Prince, above; but see Tinkler, above.

Under s. 56, intent to steal from the child is enough.

Lucri causa] By 'motives of lucre,' in s. 53, in respect of the intent to marry, is meant, it seems, that he who carries off the woman has in view the advancement of his own pecuniary position, by using the legal rights of a husband over his wife's property. The mention there of an intent to know carnally has not always been understood; it seems to have been inserted to meet the case of a seducer, who not being able or willing to marry, wishes to 'blackmail' the womana crime which in 1861 was punished most severely under this s.-and that of the hired intermediary who assists the designs of another. It is clear that an offence without marriage is contemplated, for the end of the s. expressly provides a disqualification for such offence different from that when marriage has taken place. It is quite clear that carrying off an heiress from motives of lust only would not be an offence under this s.

The jury must be satisfied that the motive was lucre: Barratt, 1840, under rpd. s. 19 of 9 G. 4, 31, where the same words are used: verdict, assault (only).

Construction of 88. 53-4] Looking to the much more general provisions of s. 54, while probably the chief value of s. 53 is to make sure that the husband shall be deprived of any benefit from the wife's property, according to the last words of it, it should be noticed that 8. 53 says against her will,' but s. 54 by force.' Probably no distinction is intended, and the variance of the phrases is due to the fact that the two ss. repeat the words of the two or more ss. which they respectively amend and reproduce.

As motives of lucre' are not mentioned in the second class of offences in s. 53, it seems that fraudulently alluring, &c., a woman under twenty-one years of age, with intent to marry or carnally know her, would be felony, whatever the motives might be, provided she was 'such' a woman, namely, an heiress. But alluring a girl of no property or expectations, between the ages of sixteen and twenty-one, from the motive of lust, would be no offence at all under that statute. But by 48-9 V. 69, 7, it is up to eighteen.

Abduction is not triable at Q. S.

ABOMINABLE CRIME.

See Sodomy.