OBSCENE EXHIBITION. See under Nuisance. OBSCENE LIBEL. See Indecent Libels. OBSCENE PUBLICATIONS, &c. It is not a common law misdemeanour to preserve and keep these in possession in order to sell them, &c.; but it is to procure them with that intent: Dugdale v. R., 1 E. & B. 425; D. & P. C. C. 64; 22 L. J. M. C. 50, 1853: error. Punishment is within 14-5 V. 100, 29. Sending prints by post to fulfil an order by post is not a 'public sale' within that s. Publication may be through a private sale: common law misdemeanour. A. A. Jackson, 3 Cr. A. R. 192, 1909. See Forbidden Contents under Post Office. OCCUPIERS AND OWNERS, OFFENCES BY. OFFENSIVE TRADE. See under Nuisance. OFFICE-HOLDERS (MINISTERIAL), OFFENCES BY. Time limitation] By 56-7 V. 61, 1, no prosecution shall lie for any act done in pursuance or execution or intended execution of any Act of Parliament or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such Act, duty or authority' unless it is commenced within six months next after the act, neglect or default complained of, or in case of a continuance of injury or damage within six months next after the ceasing thereof.' The day on which the offence is committed is excluded from the reckoning. Radcliffe v. Bartholomew, 1892, 1 Q. B. 161; 61 L. J. M. C. 63. By 52-3 V. 63, 3, month means calendar month. 6 Common law] See under Cheating. Any publick officer is indictable for misbehaviour in his office.' Anon., 6 Mod. 96, 1704, approved by L. Mansfield in Bembridge, even although the same conduct, if in a private transaction, would, as between individuals, have only given rise to an action': 9 Halsbury, 485, citing Bembridge; Leheup, 3 Doug. K. B. 327, 332 n., 1783, 1755; Val. Jones, 31 St. Tr. 251, 1809; Baxter, 5 Cox C. C. 302, 1851; Martin, 1809; Dale, D. & B. C. C. 37, 1852. Who is a public officer'?] We think a public officer is one who discharges any duty in which the public is interested, and more particularly if he receives payments from public money.' A colonel so held to be one by C. C. A. in Whitaker, 1914: favouritism in placing contract; he is also a 'ministerial' officer (as alleged in the indictment); public offices must be 'judicial' or ministerial': ib. For one definition of 'public' and 'judicial office,' see 46-7 V. 57, 64, and the Public Bodies, &c. A., p. 450. Judicial officers] Negligence and oppression are variously punished, frequently by forfeiture of the office: 4 Bl. Com. 141. See Offices, Public, &c. and Perversion of Justice. Malfeasance] Where the act done is clearly illegal, it is not necessary to support an indictment, whatever may be the case of an information, to show that it was done with corrupt motives. Thus, where a licence had been duly refused by the Surrey magistrates, City magistrates having concurrent jurisdiction in Southwark, duly appointed. another day, and granted the licence, it was held that this was an illegal act, and indictable, without the addition of corrupt motives.' Sainsbury, 4 T. R. 451, 1791; so Holland, 1 T. R. 692, 1787. Still more so when it proceeds from oppressive or corrupt motives. Williams, 3 Burr. 1317, 1762, where magistrates refused licences because the applicants had not voted for their candidates. The clerk to an officer for the exchange of prisoners who showed favour for bribes was convicted: Beale, 1797; see 1914, 3 K. B. 1300. So now of a returning officer formerly dealt with by the House of Commons: Sudbury Election Petition, Douglas El. Cas. 177, 1705. A gaoler is punishable for barbarously misusing the prisoners. Hawk. P. C. 1, 66, 2. So overseers of the poor for misusing paupers, by lodging them in unwholesome rooms, &c. Wetherill, Cald. 432, 1784. Or by exacting labour from such as are unfit to work. Winship, Cald. at 76, 1780. Where an overseer received from the father of a bastard a sum of money as a composition with the parish, and neglected to give credit for this sum in account, he was punishable, though the contract is illegal. Martin, 1809. See also Bembridge, 1783, above, and Wyat, 1 Salk. 380, 1704: a constable. Contrast Hall, 1891, where one reason was that an A. created a remedy for breach of its provisions and a tribunal to try it. Presumptions] In such indictments it is sufficient to state generally that defendant is such officer without showing his appointment; and he is presumed from his situation to know the acts from which his duty arises, so they need not be averred. So on a charge of disobedience of orders, it will be assumed that such orders still continue in force; nor need it be alleged that the neglect of duty was corrupt, if a statute makes wilful neglect a misdemeanour. Hollond, 5 T. R. 607, 1794. Sale of offices] See Vaughan, 1769; Hopkins_v. Prescott, 4 C. B. 578, 1847; and Charretie, 13 Q. B. 447, 1849: East India director's nomination to a cadetship. Nonfeasance] See Refusal, below. The prosecution must prove1, that defendant holds the office; 2, that it was his duty, and within his power to perform the particular act; and 3, that he neglected so to do. Where an officer is bound, either by common law or by statute, by virtue of his office to perform an act, neglect to perform that act is indictable: e.g. a coroner, 2 Chitt. C. L. 255; a sheriff, Antrobus, 1835; a constable, Wyat, 1704; Bootie, Burr. 865, 1759: parish constable declining to detain a night-walker apprehended; and an overseer of the poor, Tawney, 1705, 1 Bott, Poor Laws, 6th ed. (1827) 358: not relieving the poor, or doing so when there is no need for it. Overseers] The majority of the judges were of opinion, that an overseer cannot be indicted for not relieving a pauper, unless there has been an order of justices therefor, or the case is of immediate and urgent necessity. Meredith, R. & R. 46, 1803. But where the overseer had under his care a poor woman, for whom he neglected to provide necessary meat, &c., whereby she was extremely weakened, and, through want, &c., died, he was convicted, and sentenced to a year's imprisonment. Booth, ib. 47, n. 1796. Another neglected, when required, to supply medical assistance to a pauper dangerously ill; it was held that the offence was sufficiently charged and proved, though the pauper was not in the parish workhouse, nor had previously received or stood in need of parish relief. Warren, ib. 48, n. 1820. Extortion] 'Extortion in a large sense signifies any oppression under colour of right; but in a strict sense it signifies the taking of money by any officer, by colour of his office, either where none at all is due, or not so much is due, or where it is not yet due.' Hawk. P. C. 1, 68, 1. So the refusal by a public officer to perform the duties of his office, until his fees have been paid, where none are legally due, is extortion; e.g. by a coroner, 3 Inst. 149 (1347?); an undersheriff, Hescot, 1 Salk. 330; 1694; Empson v. Bathurst, Hutt. 53. 1620. A ferryman must not take more than is due by custom: Roberts, 4 Mod. R. 101, 1692. So it is extortion for a miller to take more toll than is due by custom; and where the farmer of Newgate market erected such a number of stalls that the market people had not space to sell their wares, it was held that forcing them to take and pay for the use of the stalls would be extortion. Burdett, 1696. It is extortion for an official to collect money under threat, without proper authority, though it may be due, and he may pay it over in due course to his superior. See Burdett, 1696, and Roberts, above, and cf. Gillham, 6 T. R. 267, 1795; Higgins, 4 C. & P. 247, 1830. Where a private prosecutor caused a man to be committed without bail and then colluded with the gaoler to have him put in irons, until he paid a sum to the gaoler to be relieved of them, this was held oppression and extortion, and the prosecutor was indicted. Tracey, 3 Salk. 192, 1704. It must be proved that the defendant fills the office in question. See Best Evidence. The usual fees of the office must also be proved. Several persons may be indicted jointly, if all are concerned; for in this offence there are no accessories, but all are principals. Atkinson, 2 L. Raym. 1248; 1 Salk. 382, 1705; Loggen, 1 Str. 75, 1718. Indictment] The sums and figures alleged to have been received should be given, but the exact sum need not be proved. Extortion is punishable at common law, by fine and imprisonment, and by removal from office. Hawk. P. C. 1, 68, 5. Penalties are also given against king's officers' by 3 E. 1, the first st. of Westminster, c. 26, for taking any reward to do his office. he that so doth shall yield twice as much and shall be punished at the king's pleasure.” Sheriffs] See that title. Coroners] Jervis on Coroners, 6th edn., 234, gives a form of indictment for not taking an inquest: Whitcomb, 1 C. & P. 124, 1823, a coroner was found guilty, on information, of corruptly agreeing with a murderer, afterwards convicted, to procure a verdict exonerating him. A modern code is provided by 50-1 V. 71 and 55-6 V. 56, the Coroners Acts, 1887 and 1892. India] See that title. Refusing to execute a public office] by a person duly chosen is indictable, e.g. a constable: Lone, 2 Str. 920, 1732; an overseer: Jones. 2 Str. 1146; 7 Mod. 410, 1741; Genge, Cowp. 13, 1774; a sheriff: Woodrow, 2 T. R. 731, 1788 (information, to save time). See Nonfeasance, above. The prosecution must prove the due election or appointment of the defendant, his liability to serve, notice to him of his appointment, and his refusal. Thus, it must be proved, that a corporation electing a constable had power by prescription to do so, for they possess no Exemption from Parish Offices. 907 such power of common right. Bernard, 2 Salk. 502; 1 L. Raym. 94, 1696. The notice of his appointment must then be proved, Harpur, 5 Mod. 96; Comb. 328, 1695; and his refusal, or neglect to take the oath to execute the office, from which a refusal may be presumed. But indictment as a remedy is perhaps obsolete: 1 Russ. Cri. 617. The following list of persons exempt from serving as churchwarden or overseer is given in Steer's Parish Law, pp. 104, 361, 6th ed. (1899), and probably applies to any other common law office there may be in the ecclesiastical parish:-Peers of the realm, members of parliament, sheriffs, Stephenson v. Langston, 1 Hagg. Con. R. 380 [1804]; acting justices of the peace, Goyer, 1 Burr. 245; 1 L. Raym. 492 [1757]; and clergymen-these persons are exempt by the common law-Gibs. [Cod. Jur. Ecc. Ang., 1761], 215; Roman Catholic priests, 31 G. 3, 32, [8]; dissenting ministers, 1 W. & M. 18 [11 or 8]; 52 G. 3, 155, 9; barristers and solicitors, Com. Dig. Attorney; law courts officers, 1 Roll. Rep. 368 [Hawk. P. C. 2, 10, 39]; practising physicians, 5 H. 8, 6; 32 H. 8, 40; members of the college of surgeons in London in actual practice, 18 G. 2, 15; practising apothecaries, 6-7 W. & M. 4, [amd. by] 30-1 V. 59; medical practitioners registered under 21-2 V. 90, 35; and persons living out of the parish, although they occupy lands within it, Gibs. 215; 18 G. 2, 15 [10]; but if they occupy a house of trade there, although they take their meals and sleep in another parish, they are liable, Stephenson v. Langston [above]. A person who is not resident, nor the occupier of any house or land within the parish, is not legally qualified to serve as churchwarden; and where such a person has been nominated, the court will issue a mandamus to the rector to nominate a churchwarden for the parish. In re Barlow, 30 L. J. Q. B. 271 [1861]. An inhabitant to be qualified for the office of churchwarden, must in some sense be a resident in the parish; the mere payment of rates is not sufficient. Harding [53 J. P. 75]; 6 T. L. R. 54 [1889]. Each of three partners in trade has been held liable to serve as a householder within 43 Eliz. 2 [1], although no one of them resided on the premises. Poynder, 1 B. & C. 178; 2 D. & R. 258 [1823]. By the word 'householder' is meant a person who occupies as tenant. A servant who occupies a house of his master in part payment of his services, and as subservient thereto and necessary for the performance thereof and not merely as a matter of convenience, is not a householder. Spurrell, L. R. 1 Q. B. 72; 35 L. J. M. C. 74 [1865]. A mere lodger is not liable to serve. Ford v. Chauncy, 1 Hagg. Con. 382 [1715]. All officers in the army, navy, and marines, although upon half-pay. Gayer [above]. All persons in the regular militia are exempt, 45-6 V. 49, 40; and local militia, 52 G. 3, 138, 197; and men enrolled in, and officers and non-commissioned officers appointed to the army and navy reserve forces, 45-6 V. 48, 7; 16-17 V. 73, 8; and naval volunteers, 22-3 V. 40, 7 [royal naval volunteer reserve, 3 E. 7, 6, 1]; . . . and income tax, 5-6 V. 35, 35; inland revenue, 16-7 V. 59, 17; and customs commissioners and officers, 39-40 V. 36, 9. Dentists registered under 41-2 V. 33, need not serve unless they desire to do so, s. 30. Inspectors of factories and workshops are exempt, 41-2 V. 16, 67. A quaker will not be compelled to serve, Adey v. Theobald, 1 Curt. 447 [1836]. It would appear that women are eligible for the office of churchwarden, Olive v. Ingram, 2 Stra. 1114; 7 Mod. 263 [1739]. It does not appear that any of * It is practically impossible to make absolutely complete lists. |