dangerous blow given or aimed at either of the parties, the one who first has recourse to a deadly weapon suspend his arm till he has warned the other, and given him time to put himself upon his guard; and afterwards they engage on equal terms; in such case it is plain that the design of the person making such assault is not so much to destroy his adversary at all events, as to combat with him, and to run the hazard of his own life at the same time. And that would fall within the same common principle which governs the case of a sudden combat upon heat of blood. But if several attack a person at once with deadly weapons, as may be supposed to have happened in Ford's case; though they wait till he be upon his guard; yet it seems (there being no compact to fight) that he would be justified in killing any of the assailants in his own defence; because so unequal an attack resembles more a desire of assassination than of combat.' East, 276.

Assault only] An assault with intent to chastise, though without any legal right, will not justify the assaulted in killing. Defendant (indicted for the murder of his brother) came home drunk. His father ordered him to bed, but he refused, on which a scuffle ensued between them. The deceased, hearing the disturbance, got up from his bed, threw defendant on the ground, and beat him, &c., the latter not being able to avoid his blows, or to escape. As they were struggling, defendant gave him a mortal wound with a penknife. This was unanimously held to be manslaughter, for there did not appear to be any inevitable necessity so as to excuse the killing in that manner. The deceased did not appear to have aimed at the prisoner's life, but only to chastise him for his misbehaviour to his father.' Nailor, 1704, East, 277. At the conference in this case, ‘Powell J. put the case:-If A. strike B. without any weapon, and B. retreat to a wall, and there stab A., that will be manslaughter; which Holt C.J. said was the same as the principal case; and that was not denied by any of the judges. For it cannot be inferred from the bare act of striking, without any dangerous weapon, that the intent of the aggressor rose so high as the death of the party stricken; and without there be a plain manifestation of a felonious intent, no assault, however violent, will justify killing the assailant under the plea of necessity.' Ib. Similarly:-Defendant and his brother were fighting, on which prosecutor laid and kept hold of the former to prevent him from hurting his brother, but did not strike him; defendant stabbed him with a knife. Parke J. said: The prosecutor states that he was merely restraining the prisoner from beating his brother, which was proper on his part. . . . If you are of opinion that the prosecutor did nothing more than was necessary to prevent the prisoner from beating his brother, the crime of the prisoner, if death had ensued, would not have been reduced to manslaughter; but if you think that the prosecutor did more than was necessary to prevent the prisoner from beating his brother, or that he struck any blows, then I think that it would. You will therefore consider whether anything was done by the prosecutor more than was necessary, or whether he gave any blows before he was cut.' Bourne, 5 C. & P. 120, 1831. As has been said, the killing must appear to be done from urgent necessity,' and to avoide immediate injury. He therefore who, in the case of a mutual conflict, would excuse himself upon the foot of self-defence, must shew that before a mortal stroke given, he had declined any farther combat, and retreated as far as he could with safety; and also that he killed his adversary through mere necessity,

and to avoid immediate death. If he faileth in either of these circumstances, he will incur the penalties of manslaughter.' Foster, 277.

'Neither shall a man in any case justify the killing another by a pretence of necessity unless he were himself wholly without a fault in bringing that necessity upon himself; for if a man in defence of an injury done by himself kill any person whatsoever, he is guilty of manslaughter at the least.' Hawk. P. C. 1, 28, 22. Therefore,' where A., with many others, had, on pretence of title, forcibly ejected B. from his house; and B. on the third night returned with several persons with intent to re-enter; and one of B.'s friends attempted to fire the house; whereupon one of A.'s party killed one of B.'s with a gun; held manslaughter in A.; because the entry and holding with force was illegal.' East, 277-8.

Killing in defence of the person will amount either to justifiable or excusable homicide or chance-medley, as the latter is termed, according to the circumstances. 'Self-defence upon chance-medley,' implies that the person, when engaged in a sudden affray, quitted the combat before a mortal wound given, and retreated or fled as far as he could with safety, and then, urged by mere necessity, killed his adversary for the preservation of his own life. This case bordereth very nearly upon manslaughter, and in fact and experience the boundaries are in some instances scarcely perceivable, but in consideration of law they have been fixed. In both cases it is supposed that passion hath kindled on each side, and blows have passed between the parties; but in the case of manslaughter it is either presumed that the combat on both sides hath continued to the time the mortal stroke was given, or that the party giving such stroke was not at that time in imminent danger of death.' Foster, 276-7. The true criterion' between manslaughter and excusable homicide, or chance-medley in self-defence, seems to be this: when both parties are actually combating at the time the mortal stroke is given, the slayer is then guilty of manslaughter; but if the slayer hath not begun to fight, or (having begun) endeavours to decline any farther struggle, and, afterwards, being closely pressed by his antagonist, kills him to avoid his own destruction, this is homicide, excusable by self-defence.' 4 Bl. Com. 184. In all the cases, says East, 282, of excusable self-defence, 'it must be taken that the attack was made upon a sudden occasion, and not premeditated or with malice. For if one attacked another with a dangerous weapon, unprepared, with intent to murder him, that would stand upon a different foot, and in that case, if the person whose life was sought killed the other, that would be in self-defence, properly so-called, which does not induce any forfeiture. But if the first assault be upon malice, and the flight be feigned as a pretence for carrying that malice into execution, it would undoubtedly be murder; for then the flight rather aggravates the crime, as it shews more deliberation.'

The deceased and his servant insisted on placing corn in defendant's barn, which she refused to allow; they exerted force, a scuffle ensued, in which she received a blow on the breast: whereupon she threw a stone at the deceased, upon which he fell down, and died. Holroyd J. directed an acquittal: The case fails on two accounts: it is not proved that the death was caused by the blow, and if it had been it appears that the deceased received it in an attempt to invade her barn against her will. She had a right to defend her barn, and to employ such force as was reasonably necessary for that purpose, and she is

not answerable for any unfortunate accident that may have happened in so doing.' Hinchcliffe, 1 Lew. C. C. 161, 1823.

Where a person is set to watch premises in the night, and shoots at and kills an intruder, the nature of the offence will depend on the reasonable grounds of suspicion. Any person, set by his master to watch a garden or yard, is not at all justified in shooting at or injuring in any way, persons who may come into those premises even in the night; and if he saw them go into his master's hen-roost, he would still not be justified in shooting them. He ought first to see if he could not take measures for their apprehension. But here the life of the prisoner was threatened, and if he considered his life in actual danger, he was justified in shooting the deceased as he has done; but if, not considering his own life in danger, he rashly shot this man, who was only a trespasser, he will be guilty of manslaughter,' per Garrow B. Scully, 1 C. & P. 319, 1824, where the deceased had undoubtedly come to steal.

Several persons tried to break open the door of a house in which defendant lodged. He, after remonstrating with them, opened the door, and he and they began to fight outside. He was pushed into the house again by another lodger, but the men outside broke open the door in order to get at him, and a scuffle again ensued, in which the deceased, who with others had attacked him fiercely, was killed by him with iron tongs. There was a back door through which defendant might have escaped, had he known it. He was acquitted on Bayley J.'s direction: 'If you are of opinion that the prisoner used no more violence than was necessary to defend himself from the attack made upon him, you will acquit him. The law says a man must not make an attack upon others unless he can justify a full conviction in his own mind that, if he does not do so, his own life will be in more danger. If the prisoner had known of the back way, it would have been his duty to go out backwards, in order to avoid the conflict.' Dakin, 1 Lew. C. C. 166, 1828.

**

Direction] A judge is entitled not to put a defence of manslaughter on a trial for murder to the jury, or to withdraw it, if it is set up. Fairbrother, 1 Or. A. R. 233, 1908; Foy, 2 Cr. A. R. 121, 1909; Rubens, ib. 163; Scholey; Fitzgibbons; T. Fletcher, 1913; T. Alexander, 23 Cox O. O. 654; 109 L. T. 745; 9 Cr. A. R. 139, 1913; Gorges, 1915; T. Clinton, 1917. But where manslaughter ought to have been suggested to the jury the C. C. A. substituted that verdict for murder: Hopper, 1915; Letenock, 12 Cr. A. R. 221, 1917.

Verdict] In F. Smith, Sess. Pap. 1803-4, 101; 4 Bl. Comm. 201 n. (ed. 1844); Ann. Reg. 1804, Jan. 13, where a man masquerading as a ghost infested Hammersmith and was shot (unintentionally, the defendant urged), Macdonald C.B. refused to accept a finding of manslaughter and insisted on one of murder: sentence commuted to a year's imprisonment.

*On a verdict of not guilty of murder, recommended by the judge, who has suggested a finding of manslaughter, the jury may be asked whether they so find: J. Baxter, 1913.

*Autrefois acquit, &c.] See that title.

MANUFACTURES, INJURIES TO, ETC.

By 24-5 V. 97, 14: Whosoever shall unlawfully and maliciously cut, break, or destroy, or damage with intent to destroy or to render useless, any goods or article of silk, woollen, linen, cotton, hair, mohair, or alpaca, or of any one or more of those materials mixed with each other or mixed with any other material, or any frameworkknitted piece, stocking hose or lace, being in the loom or frame, or on any machine or engine, or on the rack or tenters, or in any stage, process or progress of manufacture, or shall unlawfully and maliciously cut, break, or destroy, or damage with intent to destroy, or to render useless, any warp or shute of silk, woollen, linen, cotton, hair, mohair, or alpaca, or of any one or more of those materials mixed with each other, or mixed with any other material or . . . For continuation, see Machinery; and see s. 15, ib.

Stealing] By 6-7 G. 5, 50, 9: Every person who steals to the value of ten shillings any woollen, linen, hempen or cotton yarn, or any goods or article of silk, woollen, linen, cotton, alpaca or mohair, or of any one or more of those materials mixed with each other, or mixed with any other material, whilst laid, placed or exposed, during any stage, process or progress of manufacture, in any building, field, or other place, shall be guilty of felony, and on conviction thereof liable to penal servitude for any term not exceeding fourteen years.'

It has been decided that goods remain in a stage, process or progress of manufacture,' within 7-8 G. 4, 30, 3, rpd., though the texture be complete, if they are not yet brought into a condition for sale. Woodhead, 1 Moo. & R. 549, 1836.

MARKETS, OFFENCES CONNECTED WITH.

For making a market,' see Conspiracy and Trade Offences. For Nuisances, see that title.

MARRIAGE, OFFENCES AT THE SOLEMNISATION OF.

See Clergymen, False Declarations, and Registration.

By 6 E. 7, 40, 2, it is a misdemeanour punishable by a fine of 1007., or imprisonment for one year (maximum), to act in contravention of or not to comply with the Order in Council, regulating the marriage of a foreigner 'subject to the marriage law of his or her country with a British subject in the United Kingdom; but this does not apply to a Jewish marriage between Jews according to the usages of ' British Jews.'

MARRIED WOMEN, OFFENCES I. BY, II. AGAINST.

I. See Coercion in Part III.

Conspiracy] A married couple cannot be guilty (only) with each other: cf. Cope, 1719.

Accessory after the fact] A woman cannot be guilty in her husband's felony, nor in

Receiving stolen goods] from him.

II. For acts which are not crimes if done by the husband, see Index, Husband and Wife.

MASTERS, OFFENCES I. BY, II. AGAINST.

I. See Agency in Appendix (for liability for servant's acts), Apprentices and Servants; and cf. Assault in defence of latter.

II. See Embezzlement and Larceny. For ship-masters, see Seamen and Ships.

MEASURES, FALSE.
See Cheating.

MEDICAL MEN, ETC., OFFENCES BY.

A medical practitioner, apothecary or dentist who has been convicted of felony or misdemeanour may be removed from the register: 21-2 V. 90, 29; 37-8 V. 34, 4, am. 7 E. 7, xxii. 6; 41-2 V. 33, 13; so of veterinary surgeons, 44-5 V. 62, 6.

MEETING, UNLAWFUL.
See Unlawful Assembly.

MENACES.

See Threats.