Cornell University Law Library 
 
 The Moak Collection 
 
 PURCHASED FOR 
 
 PThe School of Law of Cornell University^ 
 
 And Presented February 14, 1893 
 
 rN nEnoRY of 
 
 JUDGE DOUGLASS BOARDMAN 
 
 FIRST DEAN OF THE SCHOOL 
 
 By his Wife and Daughter 
 A. M. BOARDMAN and ELLBN D. WILLIAMS 
 
cJ^. ^.M 
 
 i^a^, 
 
 ri 
 
Cornell University 
 Library 
 
 The original of tfiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924021698265 
 
PLEADI]N[a AND EYIDEJ^CE 
 
 IN 
 
 ©rimmal ©ases; 
 
 WITH THE 
 
 STATUTES, PEECEDENTS OF INDICTMENTS, &o. 
 
 AND TH£ 
 
 EVIDENCE NECESSARY TO SUPPORT THEM. 
 
 JOHN JERVIS, ESQ., 
 
 (late lord chief justice of the court of common fleas.) 
 
 INCLUDING the 
 
 PEACTICE IN CEIMINAL PEOCEEDINGS BY INDICTMENT. 
 
 BT 
 
 WILLIAM BRUCE, 
 
 OF THE MIDDLE TEMPLE, ESQ., BAREISTER-AT-EAW, 
 AND STIPENDIARY MAGISTRATE FOB THE BOB UGH OP LEEDS. 
 
 LONDON: 
 
 HENRY SWEET, 3, CHANCERY LANE; 
 
 STEVENS & SONS, 119, CHANCERY LANE, 
 
 iLals Bongsellers antr )PuIiI(Sljecs. 
 
 1871. 
 
kS^: 
 
 LONDON : 
 
 PRINTED BY t. EOWOKTH AND SONS 
 
 NEWTON STREET, HIQH HOLBORN. 
 
ADVERTISEMENT 
 
 SEVENTEENTH EDITION. 
 
 The present editio6,o.f this Work contains a Summary of 
 the Criminal Law ^relating Jto Indictable Offences, as 
 settled by statutes anol' re'gorfed cases to the end. of the 
 year 1870. A few cases reported while the Work was 
 passing through the press will be found in the Addenda. 
 
 Several enactments relating to punishments generally, 
 which were inserted among the statutes collected at the 
 head of the title Larceny in previous editions, or were 
 scattered through various other parts of the volume, have, 
 in the present edition, been collected under the title Ver- 
 dict and Judgment, and several enactments relating to 
 pleading generally, which were also collected under the 
 title Larceny, wiU. now be found under the title Indict- 
 ment. The offence of embezzlement by bankrupts has 
 been treated of in this edition under the title Offences 
 against the Bankrupt Laws. 
 
 The Law Journal Reports have been cited throughout 
 as well as Leigh and Cave's Reports and the Law 
 Reports, and, in the great majority of instances, a refer- 
 ence has been given to the Law Journal Reports as well 
 as to those authorized reports which preceded Leigh and 
 Cave's Reports. 
 
 a 2 
 
IV ADVEETISEMBNT TO THE SETENTEENTH EDITION. 
 
 The Editor has much pleasure in acknowledging his 
 obligations to his friend Mr. Vincent T. Thompson, of 
 the Midland Circuit, who has kindly perused the additions 
 to the present edition, and has thus enabled the Editor to 
 verify the results of his own labours. 
 
 W. BEUCE. 
 
 De Gkat Road, Leeds, 
 SUt Dee. 1870. 
 
PREFACE 
 
 TO THE FIFTEENTH EDITION. 
 
 The passing into law of the Criminal Statutes Consolidation 
 Acts (24 & 25 Vict. cc. 94 — 100) renders necessary the im- 
 mediate publication of a new edition of this Work. 
 
 Independently of the value of these Acts merely in the way 
 of consolidation, enactments which before were scattered over 
 more than a hundred Acts of Parliament being now comprised 
 in six, they have other eminent merits. They are framed 
 with greater precision of legal language than had, except 
 very rarely, been before employed in statutes relating to the 
 Criminal Law ; they effect in many instances material im- 
 provements in the law itself; and they have assimilated the 
 law of Ireland with that of England, in many cases in which 
 they were previously at variance. But, notwithstanding the 
 great pains which have been bestowed, and that during so long 
 a period, on the pi'eparation of these Acts, they still exhibit not 
 inconsiderable defects; the most striking of which, perhaps, is 
 the great want of uniformity in the punishments annexed to 
 ' offences of the same class (a). To take examples from the Act 
 relating to " Larceny and other Offences connected there- 
 with" (c. 96): — A conviction for simple larceny subjects the 
 offender to imprisonment for any term not exceeding two years, 
 with or without hard labour, and with or without solitary con- 
 finement, and, if he be a male under sixteen years of age, with 
 or without whipping (s. 4); the solitary confinement and the 
 whipping being, by a subsequent clause (s. 119), limited in 
 their duration and severity. The like punishment of whipping 
 may also be inflicted for the offences of larceny or embezzle- 
 
 (a) It is a mere act of justice to Mr. Greaves, Q.C., to whose labours;' 
 the public are mainly indebted for the Criminal Law Consolidation Acts,' 
 to state that the Government of the day, and the Committee of the Lords, 
 refused to enter into the question of uniformity of punishments. Positive 
 directions were given that no alterations should be made in the then exist- 
 ing law unless some express reasons could be given for them. — W. B. 
 
VI PREFACE 
 
 ment by clerks or servants, ss. 67, 68; for stealing or cutting 
 with intent to steal trees, plants, etc., where it amounts to an 
 indictable offence, ss. 32, 33, 36; for stealing or severing with 
 intent to steal metal or fixtures from buildings, etc., s. 31; for 
 deer stealing, s. 13 ; for larceny by lodgers or tenants of 
 furnished houses, s. 74; for receiving stolen goods, ss. 91, 95. 
 But, to many other offences, e. g., stealing cattle, s. 10; stealing 
 records, wills, documents of title to real estate, ss. 27, 29, 30; 
 stealing ore from mines, s. 38; stealing from wrecks, s. 64, or 
 from vessels in port, docks, etc., s. 63; stealing or dredging 
 for oysters, s. 26; housebreaking, s. 50; obtaining money or 
 goods by false pretences, s. 88; the punishment of whipping is 
 not made applicable. Imprisonment for dog stealing (s. 18) 
 cannot be accompanied with either solitary confinement or 
 whipping, but only with hard labour. In one or two instances, 
 as taking hares or rabbits, where indictable (s. 1 7), and taking 
 or destroying fish, where indictable (s. 24), the offences are 
 declared to be misdemeanors, but no specific punishment what- 
 ever is enacted in respect of them. It should also be noted, 
 that in one case, that of taking money or reward to compound 
 a felony (24 & 25 Vict. c. 96, s: 101), the limitation of age as 
 to whipping is eighteen instead of sixteen years, obviously by 
 a mere oversight. 
 
 These diversities can hardly have been intended: they are 
 doubtless the consequence of transferring clauses from different 
 Acts of Parliament, without taking sufficient care so to modify 
 their provisions as to ensure a uniformity of operation. 
 
 One result of these Acts was, undoubtedly, not foreseen by 
 the legal profession or by the public, namely, the abrogation 
 of capital punishment in respect of several very heinous 
 crimes (a). Burglary accompanied by wounding, administering 
 poison with intent to murder, wounding with the same intent, 
 are no longer capital offences; in truth, the only crimes. now 
 punishable with death are treason, murder, and piracy accom- 
 jj^nied with wounding or attempt to murder. 
 
 A glance over this Volume will at once show that these 
 Acts do not pretend to consolidate the whole Criminal Statute 
 
 («) All the capital pnnistments abolished were so at the express direc- 
 tion of Lord Campbell.— W. B. 
 
TO THE FIFTEENTH EDITION. Vll 
 
 Law. Offences against the State (except those relating to the 
 coin), offences against public justice, many offences against the 
 public peace and the public morals, including the laws relating 
 to game, smuggling, fraudulent bankruptcy, libel, gaming, etc., 
 etc., are not in any way affected by them. And, what is 
 seriously to be regretted, no attempt has been made to digest 
 into a single Act the many scattered and not always congruous 
 enactments relating to the important subject of Criminal 
 Procedure. 
 
 It remains only to state that these Acts came into operation 
 on the 1st of November, 1861, and that all of them apply to 
 England and Ireland, and one of them, the Act relating to 
 Coinage Offences (c. 99), to the whole United Kingdom. 
 
 I have much pleasure in acknowledging in this place the 
 great assistance which I have received in the preparation of 
 this Edition from William Bruce, Esq., of the Northern 
 Circuit. Besides many valuable suggestions with which he 
 has favoured me, he has placed at my disposal a most carefully 
 annotated copy of the last Edition, which has been of much 
 service to me. I have myself bestowed considerable pains 
 upon the Volume, and I hope that it wiU be found to be dis- 
 figured by few errors. 
 
 W. N. WELSBY. 
 Temple, January, 1862. 
 
PREFACE 
 
 TQ 
 THE FIEST EDITION. 
 
 In the year 1812, I collected aU the authorities upon the 
 Pleas of the Crown to be found in the text books, the books of 
 reports, etc.; all that could elucidate the subject in Bracton, 
 Britton, Fleta, and the Mirror; the substance of Hale, Haw- 
 kins, the Third Institute, Dalton, Foster, and East ; all the 
 cases upon the subject in the Year Books, the old reports, 
 and in the modern and recent reports ; and all the statutes 
 upon the subject down to the period at which I made the 
 collection. Of these materials I framed, with infinite pains, 
 a Digest in three volumes, one of which was actually published 
 in the year 1813. 
 
 When I contemplated the publication above mentioned, 
 works upon the Pleas of the Crown were extremely scarce ; 
 those of repute, upon the subject, were rarely to be had, even 
 at most extravagant prices. But immediately upon the pub- 
 lication of my First Volume, two other works were announced 
 upon the same subject, one of which was published very shortly 
 after it was announced : the other not for nearly two years 
 afterwards. Their being announced, however, had the effect 
 of deterring me from proceeding with my Work : I thought 
 they would amply supply the deficiency of works upon the 
 subject; and I felt too much diffidence in my own abUity to 
 enter into competition with the writers of them. Another, and 
 a very elaborate work, has since been added, which has fully 
 confirmed me in my determination not to publish the work I 
 originally contemplated. 
 
 a 5 
 
X PREFACE 
 
 As the subject of Evidence in criminal cases, however, had 
 not been treated of by any of these writers, and as some book 
 upon the subject was extremely desirable, I thought I might 
 select from the Work I originally compiled such part of it as 
 related to evidence in criminal cases, and publish it, without 
 subjecting myself to the imputation of wishing to enter into 
 any competition with the learned writers of the Works already 
 extant upon the Pleas of the Crown. I have made this com- 
 pilation; I have added to it all the cases since decided, and the 
 statutes since enacted, upon the subject; and I have com- 
 pressed the whole into the smallest compass that appeared to 
 me to be practicable, consistent with perspicuity. I have also 
 added precedents of indictments and other criminal pleadings 
 — Hot from any idea that this part of the Work was required 
 by the Profession, there being already one or two collections 
 of great repute upon the subject — but merely because I found 
 it impracticable to give the evidence in particular cases in the 
 simplified form I was anxious to give it, without also giving, 
 in each case, the particular indictment or pleading the evidence 
 was intended to support. And as I was thus obliged to give 
 the precedents, I thought it desirable, and indeed necessary 
 also to give such a summary of the law relative to pleading in 
 criminal cases generally, as would enable the reader to frame 
 an indictment in cases where he might not be able to find a 
 precedent. 
 
 As to the arrangement of my materials, I have endeavoured 
 to make it simple and perspicuous. The work consists of two 
 books — the First Book, which treats of Pleading and Evidence 
 in criminal cases generally, is divided into two parts : the first, 
 treating of Pleading generally, namely, of indictments, infor- 
 mations, special pleas, demurrers, etc.; the second, treating of 
 Evidence ^generally, namely, of evidence of records, of* matters 
 quasi of record, of private written instruments, and of parol 
 evidence, the competency and credit of witnesses, etc., etc. 
 
 The Second Book, which treats of Pleading and Evidence 
 in particular cases, is divided into four parts: the first treats of 
 ofiences against the property and persons of individuals; the 
 second treats of oflFences of a public nature, namely, offences 
 against the King and his government, offences against public 
 
TO THE FIRST EDITION. XI 
 
 justice, offences against the public peace, offences against 
 public trade, and offences against public police and economy; 
 the third treats of conspiracies; and the fourth of principals 
 and accessories. 
 
 I have now apprised the reader of what he is to expect in 
 the following Work. Trifling as it may appear, it has cost me 
 much time and great labour. I have taken infinite pains to 
 simplify my subject; to reject everything redundant or irre- 
 levant; to compress the whole into the smallest possible com- 
 pass consistent with perspicuity; and to clothe it in language 
 plain, simple, and unadorned. In fact, my sole object has been 
 to make this a practically useful book: I neither anticipate nor 
 desire for it a higher commendation. 
 
 J. F. A. 
 Symonds Inn. 
 
TABLE OF CONTENTS. 
 
 BOOK I. 
 
 Pleading, Practice, and Evidence generally. 
 
 PART I. 
 
 Pleadmg and Practice generally. 
 Ch. I. Indictment. PAGE 
 
 Sect. 1. What, and in what cases it lies . . . . . . . . 1 
 
 2. Against whom it lies . . . . 7 
 
 3. Form of it 24 
 
 4. Joinder of two or more Defendants in one Indictment 68 
 
 5. Joinder of several Offences in different Counts in one 
 
 Indictment . . . . . . . . . , . . 69 
 
 6. Within what time the Bill must be preferred . . . . 73 
 
 7. How found 75 
 
 8. Process on . . 78 
 
 9. Bail on 84 
 
 10. In what cases quashed . . . . . . . . . . 90 
 
 11. When and where tried 93 
 
 12. Nolle prosegvi .. , 105 
 
 n. Information. 
 
 Sect. 1. Ex officio 108 
 
 2. By the Master of the Crown Office 110 
 
 III. Coroner's inquisition . . . . . . . . . . . . 116 
 
 IV. Pleas, Replications, etc. 
 
 Sect. 1. Order and time of Pleading 123 
 
 2. Plea to the Jurisdiction . . . . . . . . . . 124 
 
 3. Plea in Abatement 125 
 
 4. Demurrer . . . . . . . . . . . . . . 126 
 
 5. Special Pleas in Bar 129 
 
 1. Autrefois Acquit 130 
 
 2. Autrefois Convict 134 
 
 3. Autrefois Attaint . . . . 137 
 
 4. Pardon 137 
 
 6. General Issue 138 
 
 V. Trial, Judgment, New Trial, Writ of Error, etc. 
 
 Sect. 1. Trial 140 
 
 2, Verdict and Judgment 163 
 
XIV CONTENTS. 
 
 Ch. V. Trial, Judgment, New Trial, Writ of Error, e.ta.—eont. page 
 Sect. 3. New Trial 178 
 
 4. Conrt for Crown Cases Reserred 181 
 
 5. "Writ of Error 186 
 
 PART n. 
 
 Hvidenoe generally. 
 
 Ch. I. What Allegations must be proved . . . . . . . . 198 
 
 II. The manner of proving matters put in issue . . . . . . 219 
 
 Sect. 1. By Admissions and Confessions . . . . . . 223 
 
 2. By Presumptions . . . . . . . . . . . . 235 
 
 3. By Written Evidence 239 
 
 1. Records 239 
 
 2. Matters quasi of Record 243 
 
 3. Written Instruments of a private nature . . . . 264 
 
 4. By Parol Evidence 268 
 
 1. In what cases receivable .. .. .. .. 268 
 
 2. Incompetency of witnesses . . . . . . . . 270 
 
 3. Credit of witnesses . . . . . , . . . . 277 
 
 4. How many witnesses requisite . . . . . . 287 
 
 5. Process against witnesses . . . . . . . . 288 
 
 6. Witnesses' expenses . . . . . . . . 291 
 
 7. Examination of witnesses . . . . . . . . 296 
 
 BOOK II. 
 
 Pleading, Practice, and Evidence in particular Cases. 
 
 PART I. 
 
 Offences against Individuals. 
 
 Ch. I. OfEences against the Property of Individuals 302 
 
 Sect. 1. Larceny, etc. .. 302 
 
 Larceny by Clerks and Servants . . . . . . 346 
 
 Larceny by Persons employed in the Public Service 
 or by Police Constables . . . . . . . . 348 
 
 Stealing, etc., Horses, Cows, Sheep, etc 349 
 
 Stealing Dogs . . . . , . . . . . . . 351 
 
 Stealing, etc., Records, etc 853 
 
 Stealing, etc., Wills, etc 355 
 
 Stealing Documents of Title to Real Estate . . 357 
 
 Concealment of Instrument of Title or Falsification 
 of Pedigree by Vendor or Mortgagor, or his Soli- 
 oitor or Agent . . . . . . . . . . 358 
 
 Stealing, etc., Ore, etc., from a Mine . . . . 360 
 
 Stealing or Cutting Trees, etc. . . . . 361, 363 
 
 Stealing, etc.. Plants in Gardens, etc. . . . . 366 
 
 Stealing, etc.. Lead, Metal, or Fixtures, etc. . . 368 
 Stealing Yalaable Securities 370 
 
CONTENTS. XV 
 
 Ch. I. OfEences against the Property of Individuals— (!0«<-i»M«<?. page 
 Sect. 1. Larceny, etc. — continued. 
 
 Stealing, etc., Letters, etc. . . . ■ . . . . 373 
 
 Stealing from a Wreck 384 
 
 Hunting or Stealing Deer . . 385 
 
 Taking or Killing Hares or Babbits, etc 388 
 
 Taking or Destroying Fish, etc . . 389 
 
 Stealing or Dredging for Oysters, etc. .. . . 391 
 
 Larceny by Tenants or Lodgers . . . . . . 394 
 
 Breaking and entering a. Church or Chapel, and 
 
 steaUng therein . . . . 396 
 
 Housebreaking and stealing in a Dwelling-house, etc. 397 
 Breaking, etc. a Building within the Curtilage, and 
 
 stealing therein . . . . . . . . . . 404 
 
 Stealing Silk, etc., in process of Manufacture . . 406 
 Stealing from Vessels or Docks, etc. . . . . 407 
 
 Robbery, etc. .. .. .. 409 
 
 Piracy 427,430 
 
 Eeceiving Stolen Goods . . . . . . . . 432 
 
 Eeceiving Stolen Letters, etc. . . . . . . 441 
 
 2. Embezzlement . . . . . . , . , . , , 442 
 
 By Clerks or Serrants 442 
 
 By Persons employed in the Public Service or by 
 Police Constables . . . . . . . . . . 455 
 
 By Bankers, Merchants, Brokers, Attorneys, Agents, 
 
 or Factors 456 
 
 By Trustees 462 
 
 By Bankrupts 464, 870 
 
 By Directors and Officers of Public Companies . . 464 
 
 3. False Pretences and Cheating 468 
 
 4. Burglary, etc. . . . . . . . . . . . . 487 
 
 5. Arson 603 
 
 Burning Houses and other Buildings, etc 503 
 
 Setting fire to Mines 513 
 
 Setting fire to Ships . . 514 
 
 Attempting to set fire to Buildings, etc 517 
 
 Setting fire to Craps, Stacks, etc. .. .; .. 518 
 
 6. Malicious Mischief 520 
 
 Blowing up Houses, etc. . . 520 
 
 Riotously demolishing or damaging Houses, etc. . . 523 
 Injuries to Houses, etc., by Tenants . . . . . . 525 
 
 Destroying Goods in process of Manufacture, and 
 
 Machinery 526 
 
 Destroying Machines used in Agriculture or Manu- 
 factures 528 
 
 Drowning Mines, etc 530 
 
 Destroying Engines, Erections, etc., used in Mines.. 531 
 
 Destroying Ships 533 
 
 Damaging Ships . . . . 534 
 
 Exhibiting False Signals, etc. 535 
 
XVI CONTEifTS. 
 
 Ch. I. Offences against the Property of Individuals — continued. page 
 Sect. 6. Malicious Mischief — continued. 
 
 Destroying parts of Ships in Distress, etc 536 
 
 Cutting away, etc., Buoys, etc. .. .. .. 637 
 
 Destroying Sea and Biyer Bajiks, etc. .. .. 638 
 
 Destroying, etc., Piles, etc., in Eivers, etc. . . . . 639 
 
 Destroying Bridges, Viaducts, and Aqueducts . . 540 
 Destroying Turnpike Gates, etc. . . . . . . 542 
 
 Injuries to Railway Trains and Telegraphs .. 542 
 
 Destroying Dams of Pishponds, etc, . . . . . . 544 
 
 Killing or Maiming Cattle . . . . . . . . 546 
 
 Destroying Hopbinds . . . . .. ,. .. 548 
 
 Destroying Trees, etc 548, 550 
 
 Destroying Plants, etc. ..651 
 
 Destroying, etc., Works of Art in Museums, etc. . . 553 
 Malicious Injuries to Property to amount of 51. . . 653 
 
 7. Porgery 564 
 
 Counterfeiting the Great Seal . . . . . . 571 
 
 Forging, etc., Exchequer Bills, etc 572 
 
 Forging, etc.. Bank Notes 573 
 
 Forging, etc.. Wills 574 
 
 Forging, etc.. Deeds, Bonds, etc 575 
 
 Forging, etc., Bills and Notes 577 
 
 Forging, etc.. Orders, Receipts, etc., for Money, 
 Goods, etc. . . . . . . . . . . . . 580 
 
 Forging, etc.. Transfers of Stock, Powers of At- 
 torney, etc 589 
 
 Making false Entries of Stock -691 
 
 Forging an Attestation to a Power of Attorney, etc. 593 
 Clerks of the Bank, etc., making out false Dividend 
 Warrants . . . , . . . . . . . . 594 
 
 Forging, etc.. Stock Certificates or Coupons . . 595 
 
 Purchasing or receiving, etc., Forged Bank Notes, etc. 595 
 
 Forging, etc., Registers of Births, etc., etc 596 
 
 Forgery at Common Law . . . . . . . . 599 
 
 Forgery in other Cases . . . . . . . . 600 
 
 Frauds against the Transfer of Land Act, and the 
 Declaration of Title Act, 1862 . . . . 609, 610 
 
 8. False Personation 610 
 
 Personating Seamen, Soldiers, etc 610 
 
 Personating Owners of Stock, etc 613 
 
 Personating Bail, etc . . . . . . 614 
 
 II. Offences against the Persons of Individuals 616 
 
 Sect. 1. Murder 616 
 
 Conspiracy to Murder . . . . . . . . . . 647 
 
 Attempts to Murder 648 
 
 2. Manslaughter . . . . ' 623, 656 
 
 3. Assault, Battery, Wounding, etc 657 
 
 Assault 657 
 
CONTENTS. XVll 
 
 Ch. H. Offences against the Persons of Jn^yiinala— continued. page 
 Sect. 3. Assault, Battery, Wounding, etc.— continued. 
 
 Shooting, Wounding, etc., with intent to maim, etc. 663 
 
 Attempting to choke, snfEocate, or strangle, etc., with 
 intent, etc 668 
 
 Administering, etc.. Chloroform, etc., to commit 
 Indictable Offences 669 
 
 Administering, etc.. Poison, etc., with intent to en- 
 danger life, to injure, etc 670 
 
 Injuring or attempting to injure Persons by explosive 
 or corrosive substances, etc. . . . ■ • • 672 
 
 Setting Spring Guns, etc 674 
 
 Attempts to endanger the safety of Eailway Pas- 
 
 sengers 
 
 675 
 
 Injuries arising from the furious driving of Carriages 677 
 Obstructing, etc.. Clergymen, etc., in discharge of 
 
 their Duties 677 
 
 Assaults on Officers, etc., saving Wreck . . . . 678 
 Impeding Persons endeavouring to escape from 
 
 Wrecks 679 
 
 Forcing Seamen on Shore . . . . . ■ • • 680 
 
 Assaults to commit Felony, on Peace Officers, etc. . . 683 
 
 Assaults arising from Unlawful Combinations . . 685 
 
 Assaulting Gamekeepers . . . . - • • • 686 
 
 Shooting at Officers of Customs 689 
 
 Assaulting and obstructing Officers of Customs . . 691 
 
 Assaulting, etc.. Apprentices or Servants . . . . 691 
 
 Exposing Children whereby life is endangered . . 693 
 
 4. False Imprisonment . . 694 
 
 5. Abduction 698 
 
 Of a Woman on account of her fortune . . . . 698 
 
 Of a Girl under Sixteen y«ars of age . . . . 700 
 
 Stealing Children under the age of Fourteen years. . 702 
 
 6. Eape, etc. . . 704 
 
 Ravishing Women . . . . . . . . . . 704 
 
 Procuring the Defilement of Women or Girls, etc. . . 707 
 
 Carnally abusing Children . . . . . . . . 708 
 
 Indecent Assault, etc . . . . 710 
 
 7. Attempts to procure Abortion . . . . . . . . 711 
 
 8. Endeavouring to conceal the Birth of Children . . 713 
 
 9. Sodomy 716 
 
 Assault with intent to commit Sodomy . . . . 717 
 
 PART II. 
 
 Offences of a Fullic Nature. 
 Ch. I. Offences against the Queen and her Government. 
 
 Sect. 1. High Treason 719 
 
 2. Felonious compassing to levy War, etc. . . . . 730 
 
 3. Attempts to injure or alarm the Queen . . . . 733 
 
 4. Offences against the Foreign Enlistment Act. . .. 735 
 
^VUl CONTENTS. 
 
 Ch. I. Offences against the Queen and her Government —cont, page 
 
 Sect. 5. Coining 740 
 
 Counterfeiting the Gold and Silver Coin of the Realm 744 
 Colouring, etc., Coin . . . . , . . . . . 745 
 
 Impairing, etc.. Gold and Silver Coin . . . . 748 
 
 Defacing Coin . . . . . . . . . . . . 749 
 
 Buying or Selling, etc., Counterfeit Coin at a lower 
 
 Value 750 
 
 Importing Counterfeit Coin . . . . . . . . 751 
 
 Uttering Counterfeit Coin 752 
 
 Having in Possession three or more pieces of Coun- 
 terfeit Coin 757 
 
 Making, etc.. Coining Tools . . . . . . . . 758 
 
 Conveying Coining Tools or Coin out of the Mint . . 762 
 Other Offences relating to the Coin . . . . . . 763 
 
 6. Sedition and Blasphemy, etc. . . 766 
 
 Blasphemous Libels . . . . . . . . . . 775 
 
 7. Unlawful Oaths 778 
 
 8. Inciting to Mutiny . . 783 
 
 9. Illegal Training and Drilling 785 
 
 10. Unlawful possession, etc., of Naval Stores . . . . 787 
 H. Unlawful possession, etc., of War Department Stores 789 
 12. Concealment of Treasure Trove 794 
 
 II. Offences against Public Justice. 
 
 Sect. 1. Escape 795 
 
 2. Breach of Prison 798 
 
 Aiding Prisoners to escape . . . . . . . . 799 
 
 3. Rescue 803 
 
 4. Being at large during a sentence of Penal Servitude, etc. 805 
 
 5. Perjury 808 
 
 6. Voluntary Oaths 829 
 
 7. Bribery 830 
 
 8. Extortion 832 
 
 9. Misconduct of OflBcers of Justice 832 
 
 10. Not obeying the orders of a Magistrate . . . . 834 
 
 11. Compounding Felony . . . . . . . . . . 835 
 
 12. Libels on the Administration of Justice . . . . 838 
 in. Offences against the Public Peace. 
 
 Sect. 1. Riot . . . , . . . . . . . . . . 841 
 
 Rioters remaining together one Hour after Procla- 
 mation . . . . 843 
 
 2. Affray 847 
 
 3. Forcible entry or detainer , . . 847 
 
 4. Challenge to fight .. .. 851 
 
 5. Threatening Letter . . . . 853 
 
 6. Libel 855 
 
 , rV. Offences against Public Trade. 
 
 Sect. 1. Smuggling 864 
 
 2. Offences against the Bankrupt Laws . . . . , . 870 
 
 3. Counterfeiting Trade Marks 878 
 
CONTENTS. XIX 
 
 Ch. V. Offences against Public Morals and Police. page 
 Sect. 1. Bigamy 882 
 
 2. Common Nuisance 889, 917 
 
 Bawdy-houses and Gaming-houses . . . . . . 892 
 
 Nuisances to Highways . . . . . . . . 896 
 
 3. Carriage and deposit of Dangerous Goods . ; . . 917 
 
 4. Open and Notorious Lewdness . . 920 
 
 5. Gaming 921 
 
 6. Offences relating to Game . . 922 
 
 Taking Game after two previous Conyictions . . 923 
 Three or more entering Land in the Night, to take 
 Game, armed 925 
 
 7. Taking up dead Bodies 929 
 
 8. Disturbing Public Worship 930 
 
 9. Refusing to execute a Public Office 932 
 
 PART ni. 
 Ch. I. Conspiracy 936 
 
 PART IV. 
 
 Ch. L Accessories, etc. . . . . . . . . . . . . . . 945 
 
 Sect. 1. Principals in the Second Degree - . . . . . 945 
 
 2. Accessories before the Pact . . . . . . . . 950 
 
 3. Accessories after the Fact . . . . . . . . 955 
 
 PART V. 
 Offence committed after previous Conviction . . . . . . . . 959 
 
 INDEX 967 
 
TABLE OF STATUTES 
 
 PBINTBD IN THE BODY OP THE WORK. 
 
 PAGE 
 23 Ed. 1 {Stat, defrang.pris.') 798 
 
 1 Ed. 2, Bfc. 2, c. 1 
 
 25 Ed. 3, St. 5, c. 2 . . 
 
 5 Ric. 2, fc. 8 . . 
 
 21 Jac. 1, c. 15 
 
 9 & 10 Will. 3, c. 32, s. 1 
 
 2,3. 
 
 11 & 12 Wm. 3, c. 7, ri. 9 . 
 
 7 Anne, c. 21, s. 11 .. 
 
 1 Geo. 1, St. 2, c. 5, s. 1 
 
 ss. 2, S . 
 
 s. 8 
 
 8 Geo. 1, c. 24, s. 1 . . 
 
 2 Geo. 2, c. 25, s. 2 . . 
 16 Geo. 2, i;. 31, ss. 1, 2 
 
 3,4 . 
 
 25 Geo. 2, c. 36, ss. 8, 10 
 
 c. 37, s. 9 . . 
 
 14 Geo. 3, c. 20 
 
 36 Geo. 3, c. 7, s. 1 . . 
 
 37 Geo. 3, c. 70, ss. 1, 2 
 
 c. 123, s. I . . 
 
 ss. 3—6 
 
 39 &40Gep.3, c. 94,ss. 1, 2. 
 
 45 Geo. 3, c. 92 
 
 48 Geo. 3, c. 58, s. 1 . . 
 
 52Geo. 3,c. 104, s. 1 .. 
 
 • • 7 .. 
 
 c. 155, s. 12 
 
 67 Geo. 3, c. 19, s. 25 . . . , . _ . 
 
 60 Geo. 3 «5 1 Geo. 4, c. 1, ss. 1, 2 785 
 
 s. 7 786 
 
 1 & 2 Geo. 4, u. 41, ss. 1, 2, 3 890 
 c. 88, =.1 . . 803 
 
 3 Geo. 4, c. 46, s. 2 . . . . 90 
 
 c. 114 .. .. 175 
 
 c. 126, s. 110 . . 898 
 
 4 Geo. 4, c. 48, s. 1 . . . . 171 
 
 5 Geo. 4, c. 84, s. 22 . . . . 805 
 
 ss. 23, 24 . . 806 
 
 6 Geo. 4, t. 50, =. 1 . . . . 145 
 
 ss. 14, 20 . . 148 
 
 s. 21 .. .. 724 
 
 798 
 719 
 847 
 847 
 775 
 776 
 430 
 724 
 843 
 844 
 845 
 430 
 808 
 800 
 801 
 892 
 803 
 178 
 720 
 783 
 778 
 779 
 21, 
 141 
 289 
 83 
 781 
 782 
 930 
 780 
 
 PAGE 
 
 6 Geo. 4, c. 50, s. 22 . . . . 148 
 
 2% .. ..150 
 
 . 30 .. ..149 
 
 34 .. ..149 
 
 7 Geo. 4, i;. 16,3.38 .. ..611 
 
 c. 46, s. 9 . . . . 43 
 
 c. 64, s. 4 . . . . 119 
 
 12 .. ..33 
 
 . — ■ 13 .. ..35 
 
 14 .. 42,43 
 
 ss. 15, 16 . . 44 
 
 d. 19 . . . . 125 
 
 20 .. 47,126 
 
 21 .. 63,126 
 
 22 .. .. 291 
 
 23 .. ..292 
 
 sa. 28, 29, 30 . . 295 
 
 s. 31 . . . . 90 
 
 7 & 8 Geo. 4, c. 28, =.3 . . 152 
 
 ■ ss. 8, 9, 10 173 
 
 9 Geo. 4, c. I 
 
 . 11 
 12 
 14 
 
 ,s. 1 
 2 
 4 
 
 241, 959 
 427 
 63 
 923 
 686 
 922 
 922 
 925 
 923 
 
 go 22 13 
 
 11 Geo. 4 & I'wm. 4, c. 70, 
 
 s. 9.. 166 
 
 2 Will. 4, c. 53, s. 49 .. ..611 
 
 3 & 4 Will. 4, c. 99, s. 29 . . 89 
 
 4 & 5 Will. 4, c. 36, s. 22 . . 32 
 c. 67 . . . . 806 
 
 5 & 6 Will. 4, u. 33 . . . . 95 
 
 c. 50, s. 95 . . 896 
 
 ss.96,98,99 897 
 
 100, 107 898 
 
 c. 62, ss. 6, 7, 13 829 
 
 c. 69, s. 7 . . 44 
 
 c. 76, s. 121 . . 145 
 
 6 & 7 Will. 4, c. 114, s. 3 . . 254 
 4 ..255 
 
XXII 
 
 Table of Statutes. 
 
 PAGE 
 
 7 Will. 4 & 1 Vict c. 23 .. 809 
 — c. 36, s. 25 373 
 
 ss. 26, 27, 
 
 28,29 374 
 
 s. 30.. 441 
 
 31.. 374 
 
 ■■ 32.. 375 
 
 35.. 946 
 
 ss. 36, 37, 
 
 40.. 375 
 
 41,42,47.. 376 
 
 c. 88, s. 1 . . 430 
 
 ss. 2, 3 431 
 
 s. 4.. 946 
 
 5.. 431 
 
 -■ c. 90, s. 5. . 174 
 
 c. 91, s. 1. . 782; 
 
 783, 803, 845 
 s. 2.. 782 
 .. 141 
 .. 104 
 .. 733 
 .. 734 
 .. 260 
 .. 119 
 .. 120 
 c. 85, s. 1.. 271,273 
 c. 96,88.3,4,5,6.. 855 
 7,8 .. 856 
 30 
 924 
 118 
 260 
 659 
 
 3 & 4 Vict. c. 54, 3. 3 
 fi & 6 Vict. c. 38 
 
 c. 51, 8. 2 
 
 3 
 
 6 Vict. c. 18, 3. 94 
 6 «5 7 Vict. c. 12, s. 1 
 
 ! 8 Vict. c. 2, 69. 1—4 
 
 c. 29, 8. 1.. 
 
 c. 92, 8. 17 
 
 - c. 101, s. 71 
 
 8 & 9 Vict. c. 100, =. 56 
 
 c. 109, =. 2 
 
 — 17 
 
 0. 113, 8. 1 
 
 2 
 
 3 
 
 — 4 
 
 9 & 10 Vict. c. 24, 8. 1 
 c. 96, 3. 57 
 
 111 
 11 & \2 Vict. c. 12, 88. 1, 2 
 
 8. 3 
 
 ss. 4—6 . 
 
 92L 
 263 
 244 
 243 
 602 
 174 
 603 
 247 
 720 
 730 
 731 
 7, 8, 10 732 
 
 c. 42, a. 3 79, 81 
 
 11 ..81 
 
 17 .. 249 
 
 18 .. 227 
 
 23 87, 88 
 
 24 .. 87 
 
 27 .. 255 
 
 c. 78, 88. 1,2 .. 182. 
 
 3, 4 .. 183 
 
 s. 5 .. 197 
 
 6 ..184 
 
 13 & 14 Vict. c. 21, 3. 7 . . 239 
 
 14 & 15 Vict, c, 19, 3. 5 . . 648 
 
 PAGE 
 14 & 15 Vict. c. 19, ss. 11, 12, 13 488 
 
 8.14 
 
 - c. 55, 8. 2 
 
 3 
 19 
 21 
 
 - c. 99, 88. 2, 3 
 
 8.7 
 12 
 13 
 14 
 17 
 
 - c. 100, 8. 1 
 
 38. 2, 3 
 
 8.5 
 
 7 
 
 9 
 
 12 
 
 18 
 
 19 
 
 S3. 20, 2a 
 
 293 
 
 292 
 
 293 
 
 27 
 
 28 
 
 273 
 
 257 
 
 .. 259 
 
 133, 241 
 
 .. 263 
 
 .. 603 
 47, 206 
 .. 207 
 .. 56 
 .. 56 
 131, 164 
 131, 164 
 .. 59 
 
 15 & 16 Vict. c. 76, 8. 105 
 
 810 
 &11 
 
 23 . . 49 
 
 24 37, 38, 
 47, 59, 63, 
 
 125, 126 
 .. 127 
 .. 93 
 
 132, 140 
 
 .. 175 
 
 .. 49 
 
 148 
 
 25 
 27 
 28 
 29 
 30 
 
 83. 106, 108 149 
 
 16 & n Vict. c. 30, 3. 4 
 6 
 
 9 
 
 c. 32, 88. 1, 2 
 
 95 
 
 98 
 
 99 
 
 290 
 
 195 
 
 4, '5, 6, 7 196 
 
 c. 96, s. 9 
 
 c. 97, 8. 123 
 
 c. 99, 8. 6 
 
 c. 107, 3. 244 
 245 
 248 
 249 
 260 
 251 
 303 
 304 
 306 
 307 
 1. 1 
 2 
 
 • c. 119, 
 
 17 & 18 Vict. c. 38, 8. 2 
 c. 78, 8. 10 
 
 - c. 83, B. 27 
 
 ■ c. 104, a. 107 . 
 
 206 . 
 
 ■ ss. 207, 208. 
 
 659 
 , 660 
 . 171 
 . 864 
 864 
 , 865 
 689 
 868 
 691 
 689 
 689 
 689 
 690 
 893 
 894 
 893 
 602 
 268 
 259 
 680 
 681 
 
Table of Statutes. 
 
 XXlU 
 
 311 
 
 312 
 101 
 
 PAGE 
 
 17 & 18 Vict. c. 104,3.267 .. 30 
 
 270 .. 256 
 
 618 .. 681 
 
 520 .. 683 
 
 c. 125, SB. 20, 21 286 
 
 18 & 19 Vict. c. 91, 3. 21 . . 30 
 
 c. 126, 3. 1 . . 309 
 
 2 ..309 
 
 . ' SB. 3— 6.. 310 
 
 7, 8, 9, 
 
 11,12.. 
 
 13, 14, 
 
 17,23.. 
 
 19 & 20 Vict. c. 16, B. 1 
 ss. 13, 25, 
 
 26 .. 294 
 
 c. 64 .. ..75 
 
 .0.3,83.2,3,6,7 172 
 ■ c. 77, 3. 22 . . 246 
 . c. 96, B. 19 . . 41 
 . c. 17, ss. 1, 2 . . 5 
 
 c. 35, 3. 24 . . 358 
 
 25 .. 359 
 
 23 & 24 Vict. c. 38, 3. 8 . . 859 
 c. 75, 3. 13 ..660 
 
 24 & 25 Vidt. c. 66 . . . . 287 
 
 c. 94, a. 1 13, 950 
 
 ■ 2 13, 951 
 
 3 15, 955 
 
 4 ..955 
 
 5 13, 951 
 
 6 13, 14 
 
 7 13, 951 
 
 '8 .. 11 
 
 9 .. 33 
 
 c. 96, s. 1 302, 357, 
 
 370, 462, 487 
 
 20 & 21 Vict. 
 
 21 & 22 Vict. 
 
 22 & 23 Vict. 
 
 2 
 
 3 
 
 4 
 
 5 
 
 6 
 
 7 
 
 8 
 
 9 
 
 10 
 
 11 
 
 12 
 
 13 
 
 14 
 
 15 
 
 17 
 
 18 
 
 19 
 
 20 
 
 22 
 
 24 
 
 26 
 
 27 
 
 28 
 
 303 
 303 
 303 
 
 304 
 304 
 304 
 349 
 349 
 385 
 386 
 386 
 386 
 388 
 351 
 352 
 352 
 352 
 389 
 391 
 370 
 357 
 
 24 & 25 Vict. c. 96, s. 29 
 
 . — 30 
 
 31 
 
 32 
 
 ■ 33 
 
 36 
 
 38 
 
 39 
 
 • 40 
 
 41 
 
 42 
 
 43 
 
 44 
 
 ■ 46 
 
 46 
 
 ■ 47 
 
 48 
 
 49 
 
 50 
 
 61 
 
 53 
 
 63 
 
 54 
 
 56 
 
 66 
 
 57 
 
 58 
 
 59 
 
 — 60 
 
 61 
 
 — ' ■ 62 
 
 63 
 
 64 
 
 67 
 
 68 
 
 69 
 
 70 
 
 71 
 
 72 
 
 74 
 
 ■ 75 
 
 ■ 76 
 
 77 
 
 78 
 
 79 
 
 80 
 
 81 
 
 82 
 
 • 83 
 
 84 
 
 85 
 
 86 
 
 87 
 
 88 
 
 89 
 
 90 
 
 91 
 
 92 
 
 93 
 
 94 
 
 ,. 406 
 407 
 384 
 346 
 
 ,. 442 
 348 
 348, 455 
 442 
 443 
 
 42, 394 
 456 
 457 
 457 
 467 
 458 
 462 
 464 
 
 .. 464 
 
 .. 464 
 465 
 
 ,. 458 
 459 
 459 
 468 
 468 
 . 469 
 432 
 . 432 
 433 
 433 
 
Table of Statutes. 
 
 24 & 25 Vict. t. 96, s. 95 
 96 
 
 100 
 
 101 
 
 102 
 
 103 
 
 104 
 
 109 
 
 114 
 
 115 
 
 116 
 
 117 
 
 118 
 
 119 
 
 121 
 
 ■ c. 97, s. 1 
 
 2 
 
 3 
 
 4 
 
 5 
 
 6 
 
 7 
 
 8 
 
 10 
 11 
 12 
 13 
 14 
 15 
 16 
 17 
 18 
 19 
 20 
 21 
 22 
 23 
 26 
 27 
 28 
 29 
 30 
 31 
 32 
 33 
 34 
 35 
 36 
 37 
 38 
 39 
 40 
 41 
 42 
 43 
 44 
 45 
 46 
 
 PAGE 
 .. 433 
 .. 433 
 .. 945 
 .. 305 
 .. 835 
 .. 836 
 .. 305 
 306, 488 
 .. 306 
 .. 306 
 .. 306 
 .. 307 
 .. 307 
 .. 308 
 .. 308 
 .. 308 
 .. 503 
 .. 503 
 .. 503 
 .. 504 
 .. 504 
 .. 504 
 .. 504 
 .. 517 
 .. 520 
 .. 521 
 .. 523 
 .. 523 
 .. 525 
 .. 526 
 .. 528 
 .. 518 
 .. 518 
 .. 518 
 .. 648 
 .. 548 
 .. 549 
 .. 550 
 .. 551 
 .. 513 
 .. 513 
 .. 530 
 .. 531 
 .. 538 
 .. 539 
 .. 544 
 .. 540 
 .. 542 
 .. 542 
 .. 543 
 .. 543 
 .. 543 
 .. 553 
 .. 546 
 .. 546 
 .. 514 
 .. 614 
 .. 514 
 .. 634 
 .. 534 
 
 24 & 25 Vict. c. 97, s. 47 
 
 48 
 
 49 
 
 50 
 
 51 
 
 64 
 
 66 
 
 67 
 
 68 
 
 . 69 
 
 60 
 
 61 
 
 • 67 
 
 70 
 
 71 
 
 72 
 
 73 
 
 74 
 
 75 
 
 — 77 
 
 c. 98, s. 1 
 
 ■ 2 
 
 . 3 
 
 4 
 
 5 
 
 6 
 
 7 
 
 8 
 
 9 
 
 11 
 
 12 
 
 13 
 
 14 
 
 16 
 
 17 
 
 18 
 
 — 19 
 
 20 
 
 21 
 
 22 
 
 23 
 
 24 
 
 25 
 
 26 
 
 — 27 
 
 28 
 
 29 
 
 30 
 
 31 
 
 32 
 
 ■ 33 
 
 34 
 
 36 
 
 37 
 
 38 
 
 . 39 
 
 40 
 
 41 
 
 42 
 
 PAGE 
 .. 635 
 .. 637 
 .. 536 
 .. 853 
 .. 553 
 .. 521 
 505, 945 
 .. 605 
 .. 505 
 .. 605 
 .. 605 
 ,, 505 
 ,. 606 
 .. 506 
 .. 506 
 .. 606 
 .. 607 
 .. 607 
 .. 607 
 .. 607 
 .. 571 
 .. 589 
 .. 613 
 .. 593 
 .. 691 
 .. 594 
 .. 603 
 .. 572 
 .. 607 
 .. 607 
 .. 607 
 .. 673 
 .. 595 
 .. 608 
 .. 608 
 .. 608 
 .. 608 
 .. 608 
 .. 575 
 .. 674 
 .. 677 
 .. 580 
 .. 679 
 .. 580 
 .. 603 
 .. 601 
 .. 601 
 .. 601 
 .. 601 
 .. 602 
 .. 602 
 .. 605 
 .. 614 
 .. 596 
 .. 597 
 .. 555 
 .. 565 
 .. 666 
 .. 564 
 .. 564 
 
Table of Statutes. 
 
 24 & 25 Vict. c. i 
 
 8,s.43 
 
 - 44 
 
 - 45 
 
 - 47 
 
 - 48 
 
 - 49 
 
 - 50 
 
 - 51 
 
 - 52 
 
 - 63 
 
 - 64 
 
 - 0. 99, s. 1 
 
 - 2 
 
 - 3 
 4 
 5 
 6 
 7 
 8 
 9 
 
 10 
 
 11 
 
 12 
 
 13 
 
 14 
 
 15 
 
 16 
 
 17 
 
 18 
 
 19 
 
 20 
 
 21 
 
 22 
 
 23 
 
 24 
 
 25 
 
 28 
 
 29 
 
 80 
 
 31 
 
 35 
 
 36 
 
 37 
 
 38 
 
 39 
 
 40 
 
 42 
 
 - c. 100, s. 1 
 
 2 
 3 
 4 
 5 
 6 
 7 
 8 
 
 10 
 11 
 12 
 13 
 
 PAG-B 
 .. 564 
 .. 555 
 ,. 555 
 .. 556 
 657 
 558, 945 
 .. 558 
 .. 558 
 .. 558 
 .. 568 
 .. 559 
 .. 743 
 .. 744 
 .. 745 
 .. 748 
 .. 748 
 .. 760 
 .. 751 
 .. 764 
 .. 752 
 .. 752 
 .. 757 
 .. 763 
 .. 764 
 .. 763 
 .. 763 
 .. 749 
 .. 749 
 .. 764 
 .. 765 
 .. 765 
 .. 765 
 .. 765 
 .. 766 
 .. 758 
 .. 762 
 .. 740 
 .. 740 
 .. 741 
 .. 741 
 741, 946 
 .. 741 
 .. 741 
 .. 742 
 .. 742 
 .. 743 
 .. 743 
 .. 616 
 .. 616 
 .. 616 
 .. 647 
 .. 656 
 .. 617 
 .. 656 
 .. 617 
 .. 617 
 .. 617 
 .. 648 
 .. 654 
 .. 655 
 
 24&25Vict.c.l00,s.U 
 
 15 
 
 16 
 
 17 
 
 18 
 
 19 
 
 20 
 
 21 
 
 22 
 
 23 
 
 24 
 
 25 
 
 26 
 
 27 
 
 , 28 
 
 — 29 
 
 30 
 
 31 
 
 32 
 
 38 
 
 34 
 
 36 
 
 ■ 36 
 
 • 37 
 
 r- 38 
 
 . 41 
 
 44 
 
 45 
 
 46 
 
 ■ 47 
 
 ^ 48 
 
 49 
 
 50 
 
 ■ 51 
 
 52 
 
 53 
 
 54 
 
 55 
 
 56 
 
 57 
 
 58 
 
 69 
 
 60 
 
 61 
 
 : 62 
 
 63 
 
 64 
 
 66 
 
 67 
 
 25 & 26 Vict. 
 
 69 
 70 
 71 
 73 
 74 
 75 
 77 
 c. 53, ss. 
 106, 107, 
 139 .. 
 6 
 
 PAGE 
 .. 651 
 .. 655 
 .. 853 
 .. 679 
 .. 663 
 .. 651 
 .. 668 
 .. 668 
 .. 669 
 .. 670 
 .. 671 
 .. 671 
 .. 691 
 .. 693 
 .. 672 
 .. 672 
 .. 672 
 .. 674 
 .. 675 
 .. 676 
 .. 676 
 ... 677 
 .. 677 
 .. 678 
 .. 683 
 .. 685 
 .. 134 
 .. 135 
 .. 135 
 .. 657 
 .. 704 
 .. 707 
 .. 708 
 .. 708 
 .. 710 
 .. 698 
 .. 699 
 .. 700 
 .. 702 
 .. 882 
 .. 711 
 .. 711 
 .. 713 
 .. 716 
 .. 717 
 .. 704 
 .. 654 
 .. 618 
 618, 946 
 .. 618 
 .. 619 
 .. 619 
 .. 619 
 .. 619 
 .. 620 
 .. 620 
 620 
 
 105, 
 138, 
 
 609 
 
XXVI 
 
 Table of Statutes. 
 
 PAGE 
 
 25 & 26 Vict. c. 61, s. 19 . . 897 
 
 c. 65 .. 28,618 
 
 ■ c.67,ss.44— 47.. 610 
 
 c.88,as.l,2 ..878 
 
 3, 5 . . 879 
 
 9,10,12 880 
 
 13,14,18, 
 
 25, 26.. 881 
 
 ■ c. 89, ss. 166, 167, 
 
 168 .. 465 
 
 c. 103, !i. 40 - . 355 
 
 — ■ c. 107, ss. 4, 6, 8 147 
 
 9, 10, 
 
 11 .. 148 
 
 26 Vict. c. 29, s. 6 . . . . 261 
 
 26 «5 27 Vict. c. 44 . . . . 410 
 
 c. 73, s. 14 .. 613 
 
 c. 87, s. 9 . . 466 
 
 c. 103, s. 1 . . 327 
 
 27 & 28 Vict. c. 47,' s. 2 .. 173 
 
 28 Vict. c. 18, s. 2 . . 159, 161 
 3 .. ..284 
 
 4 .. ..281 
 
 5 .. ..281 
 
 6 .. ..280 
 
 7 .. ..264 
 
 8 .. 267,664 
 
 c. 36, s. 11 .. .. 615 
 
 28 & 29 Vict. c. 104, s. 34 . . 274 
 c. 124, s. 6 . . 606 
 
 8 ..610 
 
 9 ..611 
 
 c. 126, s. 3 . . 799 
 
 4 ..800 
 
 37 , , 799 
 
 29 Vict. c. 25, B. 15 . . . . 572 
 
 29 & 30 Vict. c. 69, ss. 1, 2, 3. . 917 
 
 4,5,7.. 918 
 
 c. 108, ss. 15, 16, 
 
 17 .. 466 
 c. 117, s. 14 ..175 
 
 30 Vict. c. 29, ss. 1, 3 . . 606 
 30 & 31 Vict. c. 35, ss. 1, 2 . . 6 
 ■ s. 5 ..296 
 
 6 ..253 
 
 7 .. 254 
 
 9 ..308 
 
 10 ..78 
 
 — c. 103, B. 11 . . 606 
 
 c. 119, s. 20 .. 788 
 
 c. 124, s. 11 . . 30 
 
 c. 128, ss. 1, 2 . . 789 
 
 3-8.. 790 
 
 9, 13, 
 
 14, 16, 
 
 19, 20 791 
 
 c. 131, s. 34 . . 606 
 
 35 .. 614 
 
 36 .. 608 
 
 c. 146, ss. 17, 20 606 
 
 PAGK 
 . 616 
 . 617 
 . 262 
 . 602 
 . 263 
 391 
 
 31 Viet. c. 24, ss. 2, 6 
 15,16 
 
 31 & 32 Vict. c. 37, s. 2 
 4 
 
 ss. 5, 6 . . 
 
 c. 45, ss. 28, 42 
 
 43, 51, 
 
 52, 55, 
 65 .. 392 
 
 c. 110, ss. 20, 21 378 
 
 c. 116, s. 1 .. 308 
 
 2 ..443 
 
 c. 119, s. 5 . . 466 
 
 c. 121, s. 14 . . 487 
 
 32 Viet. c. 12, ss. 1, 2, 3, 4, 5, 
 
 10 .. ..787 
 
 12, 13,14 .. 788 
 
 32 & 33 Vict. c. 49, s. 8 . . 604 
 
 c. 62, s. 11 ..870 
 
 ss. 12, 13.. 871 
 
 14, 16, 
 
 17, 18, 
 
 19,20 .. 872 
 
 s. 23 {.. 873 
 
 '■ — c. 68, s. 4 . . 285 
 
 c. 71, s. 10 . . 247 
 
 ss. 18, 47, 
 
 49, 81, 
 106 .. 248 
 
 107, 108, 
 
 109, 125, 
 
 .249 
 . 378 
 . 379 
 . 961 
 433 
 . 590 
 . 592 
 . 594 
 . 603 
 , 918 
 , 919 
 , 920 
 . 150 
 . 177 
 177 » 
 177 S 
 . 721 
 . 595 
 . 618 
 . 608 
 . 595 
 . 836 
 . 145 
 146 
 . 147 
 , 148 
 . 167 
 
 c. 90, ss. 1, 2, 4, 
 
 5, 6 .. 735 
 
 33 Vict. c. 14, s. 5 
 
 33 & 34 Vict. c. 23, s. 1 
 
 ^ ss. 2, 3 
 
 s. 4 
 
 c. 58, s. 3 
 
 4 
 
 5 
 
 c. 65, ss. 2, 3 
 
 c. 77, s. 7 
 
Table of Statutes. 
 
 PAGE 
 33 & 34 Vict. u. 90, ss. 7, 8 . . 736 
 
 ss. 9, 10, 
 
 11 .. 737 
 
 ss. 12, 13, 
 
 15, 16, 
 17, 18 738 
 
 ss. 19, 20, 
 
 30 .. 739 
 
 33 & 34 Vict. c. 90, ss. 31, 33 
 
 c. 93, B. 1 
 
 11 
 
 c. 97, s. 17 
 
 c. 98, s. 2 
 
 18 
 
 22 
 
 xxvu 
 
 PAGE 
 .. 740 
 ,. 877 
 Add. 
 . 268 
 . 604 
 . 603 
 . 604 
 
 62 
 
TABLE OF THE CASES 
 
 CITED BY NAME. 
 
 ADAMTHWAIT 
 372 
 
 183 
 
 PAGE 
 
 Syngc, i Camp. 
 
 2S7 
 
 1 Stark. 
 
 267 
 
 Admiralty case, 12 Rep. 79 32 
 
 Ahitbol V. Benlditto, 2 Taunt. 401 ... 46, 
 
 203, 321 
 
 Alexander v. Angle, 1 C. & J. 143 ... 769 
 
 AliTon V. Fumival, l.C. M. & R. 277... 267 
 
 Alleyne v. R., Dears. 612 189 
 
 6 E. & B. 399 189 
 
 Alves V. Bunbuiy, 4 Camp. 28 257 
 
 Amey v. Long, 1 Camp. 14, 18(>, «. 289, 290 
 
 9 East, 472 289 
 
 6 Esp. 116 ... 289, 290 
 
 Anderson v. Hamilton, 2 Bred. & B. 
 
 166, B 860 
 
 Anon., 4 A. & E. 576, n. 
 
 IB. & Ad. 382 ... 
 
 . ■2C. &P. 469 ... 
 
 6C. &P. 408 ... 
 
 1 Chit. Sep. 698 ... 
 
 1 Cox, 260 
 
 1 East, P. C. 261... 
 
 2 East, P. C. 666 .. 
 
 2 East, P. C , 698 
 
 2 East, P. C. 642 
 
 2 East, P. C. 652 
 
 . — Leeds Spring Ass. 1867 (M.S.) 
 
 2 Mood. C. C. 40 
 
 3 Mod. 265 
 
 . E&E. 489 
 
 1 Sals. 380 
 
 3 Salt. 187 
 
 1 Vent. 366 
 
 Apothecaries' Co. v, Bentley, 1 C. & P. 
 
 638 
 
 ' By. & M. 
 
 N. P. 169 210 
 
 Appletone v. Braybrook, 6 M. & Sel. 
 
 34 267 
 
 2 Stark. 6 ... 257 
 
 Aspindall v. Brown, 3 T. E. 266 ... 903 
 Atkinson v, Jameson, 6 T. R. 24 ... 697 
 Att-Gen. v. Briant, 16 M. Si W. 169... 277 
 
 Bulpit, 9 Price, 4 ... 296 
 
 Le Merchant, 2 T. R. 201 220 
 
 Eadlofl, 10 Exoh. 84 ... 274 
 
 Siddon, 1 0. & J. 220 ... 771 
 
 of New South Wales v, Ber- 
 
 tiand, 36 L. J., Priv. Coun. 51 178, 297 
 
 Austin's case, 1 Yent. 189 4 
 
 BAMFOED i;. Tumley, 3 B. & S. 62, 
 66 892 
 
 31 L. J., Q. B. 
 
 286 892 
 
 ... Ill 
 .. 662 
 ... 235 
 39, 321 
 ... 65 
 ... 763 
 634, 637 
 ... 346 
 ... 373 
 ... 400 
 40 
 767 
 664 
 166 
 38 
 92 
 4 
 908 
 
 , 210 
 
 Barbat v. Allen, 7 Exch. 609 ... 
 Barham's case, 4 Co. 20' a 
 Barker v. Braham, 2 W. Bl. 866 
 
 3 Wils. 868 ... 
 
 Barnes V. HoUoway, 8 T. E. 160 
 Trompowsky, 7 T. E. 261 
 
 PAGE 
 ... 274 
 ... 769 
 ... 695 
 ... 695 
 ... 205 
 ... 264, 
 265 
 
 Baron de Bode's case, 8 Q. B. 208, 260, 
 
 267 257 
 
 Barrow v. Humphreys, 3 B. ^ Aid. 498 291 
 Bartlett, BxjJarte.SOL. J.,M. C.65 ... 905 
 Basten u. Carew, Ey. & M. 137 ... 298 
 
 Bateman v. Bluck, 18 Q. B. 870 ... 906 
 
 Batt ti. Kinsey, 1 C. M. & E. 38 ... 276 
 Baynes v. Brewster, 11 L. J., M. C.6... 642 
 •2Q. B.376 ... 642 
 
 Beak u. Thyrwhit, BuU. N. P. 245 
 
 3 Mod. 194 ... 
 
 1 Show. 6 ... 
 
 131 
 ... 131 
 ... 131 
 ... 884 
 ... 296 
 ... 860 
 
 Beamish v. Beamish, 9 H. L, C. 274 
 Beamon v. Ellice, 4 C. & P. 585 
 Beatson v. Skene, 6 H. & N. 888 
 Beaumont D. Mountain, 10 Bmg. 404 ... 239 
 
 4 Moo. & S. 177 289 
 
 Beaurain ». Scott, 3 Camp. 388 ... 245 
 
 Beck 0. Beverley, 11 M. & W. 845 ... 63 
 Beckwith v. Phllby, 6 B. & 0. 638 ... 642 
 
 Bell V. Stone, 1 Bos. & P. 831 
 Bennett v. Watson, 3 M. & Sel. 1 
 Benson v. Offley, 3 Mod. 121 ... 
 2 Show. 610 
 
 867 
 697 
 10 
 10 
 206 
 840 
 18 
 
 Bentzing «. Scott, 4 C. & P. 24 
 
 Berjyman v. Wise, 4 T. E. 366 
 
 Beverley's case, Co. 126 
 
 Beverley fMayor of) v. Craven, 2 M. & 
 
 Bob. 140 240 
 
 Bingham v. Dickie, 6 Taunt. 814 ... 46, 203, 
 
 321 
 
 Bird V. Barlow, 1 Doug. 170 ... 
 
 Holbrook, 4 Bing. 628 ... 
 
 Jones, 7 Q. B. 742 
 
 Blower V. HoUis, 1 C. & Mar. 896 
 Boggett V. Friar, 11 East, 301 .. 
 Boldin's case. Rose. Cr. Ev. 220 
 Bolton v. TomliB, 6 A. & E. 866 
 Borough V, Martin, 2 Camp. 112 
 Bradshaw v. Murphy, 7 C. & P. 612 
 Breton v. Cope, Peake, 31 ... 261, 264 
 Brett V. Beales, Moo. & M. 421 ... 289 
 
 Brewster v. Sewell, 3 B. & Aid. 296 ... 264 
 Briant v. Eicke, Moo. & M. 857 ... 206 
 
 Bristow V. Sequeville, 6 Ex. 275 ... 268 
 Brocas v. Mayor of London, 1 Str. 307 .. 259 
 Bromage v. Prosser, 4 B. & C. 247, 
 
 256 287, 609, 771 
 
 Brook V. Brook, 3 Smale S G. 481 ... 886 
 Brookes v. Tichbome, 5 Excta. 929 ... 267 
 
 268 
 
 .. 244 
 .. 493 
 
 298 
 280 
 
XXX 
 
 Table of Cases. 
 
 PAGE 
 
 Broome 0. E., IS Q. B. 834 25 
 
 Brown's case, 3 Keb. 193 700 
 
 Vent. 243 700 
 
 Brown V. Crashaw, 2 Buls. 154 ... 166 
 
 Croom, 2 Stark. N. P. C. 297 860 
 
 roster, 1 H. & N. 736 ... 276 
 
 Woodman, 6 C. S P. 206 ... 269 
 
 Bull 1). Tilt, 1 B. & P. 199 ...137 
 
 BuUock V. Dodds, 2 B. & Aid. 258 ... 137 
 Burden v. Rickett, 2 Camp. 121, n. ... 220 
 Burton v. Plummer, 2 A. & E. 341 ... 299 
 
 4 Nev. & M. 316... 299 
 
 BusheU I). Barrett, Ey. & M. 434 ...271 
 
 CADWALADEK v. Brian, Cro. Car. 
 
 162 54 
 
 Caltliorpe v. Astell, 1 East, P. C. 457... 701 
 
 3 Mod. 169 ... 701 
 
 Calye's case, 8 Co. 33 318 
 
 Campbell v. E., 17 L. J., M. C. 89 ... 165, 
 176, 179 
 
 11 Q. B. 799, 814 ... 72, 
 
 165,176,178,179 
 
 Twemlow, 1 Price, 81 ... 276 
 
 Carey v. Pitt, Peake, Ad. Ca. 130... 267, 564 
 Cartwrlght v. Green, 2 Leacli, 952 ... 331 
 
 8 Ves. 406 ... 331 
 
 Wright, 1 D. & E. 230 ... 769 
 
 Cath Austin's case, 1 Vent. 189 ... 4 
 Catlierwood «, Caslon, 13 M. & W. 261 884 
 
 Cavan o. Stnart, 1 Start. 625 257 
 
 Cavey v. Leadbetter, 13 C. B., N. S. 470 892 
 
 82 L. J., C. P. 104 892 
 
 Chadwick v. Banning, Ky. & M. 306 ... 260 
 Chalmers v. Bayne, 2 0. M. & E. 156... 773 
 Chandler u. Home, 2 M. & Kob. 423 ... 296 
 Chapman, Ex parte, 4 A. & E. 773 ... Ill 
 
 u, Milvain, 5 Exch. 61 ... 44 
 
 Chelsea Waterworks v. Cowper, 1 Esp. 
 
 275,278 265 
 
 Chichester v. Philips, T. Eaym. 404 — 
 
 406 246 
 
 Chlnn 1). Morris, 2 C. & P. 361 694 
 
 Chubb V. Westley, 6 C. & P. 486 ... 217, 771 
 Church, Ex parte, 1 D. & E. 324 ... 260 
 Churchill (Lord) v. Hunt, 2 B. & Aid. 
 
 685 868 
 
 4 Taunt. 356 868 
 
 Chirke V. Saffrey, Ey. & M. 126 ... 298 
 Clement r. Fisher, 7 B. & C. 469 ... 769 
 
 1 Man. & Ryl. 281 ... 769 
 
 Clewes V. Bathurst, 2 Str. 960, 961 ... 246 
 Coalheaveis' case, 1 Leach, 66... ... 947 
 
 Coates V. Birch, 2 Q. B. 252 276 
 
 Cobbett V. Hudson, 1 E. & B. 14 ... 296 
 Cochlan v. Williamson, 1 Doug. 93 ... 265 
 Collins V. Carnegie, 1 A. & E. 695 ... 260 
 
 — 3 Nev. & M. 703 ... 260 
 
 Combe i>. Pitt, 3 Burr. 1434 48 
 
 Commonwealth v. Feely, 2 Virg. Cas. 1 291 
 
 Compagnon v. Martin, 2 W. Bl. 790 ... 206, 
 
 775 
 
 Constable's case, 5 Eep. 1055 32 
 
 Conway «. R., 7 Irish Law Rep. 149 ... 168 
 Cook «. JTethercote, 6 C. & P. 741...296, 696 
 Cooke V. Stratford, 13 M. & W. 379 ... 922 
 
 Cooper V. Marsden, I Esp. 2 265 
 
 Copcland ti. Watts, 1 Stark. N. P. 95... 276 
 Coppock e. Bower, 4 M. & W. 361 ... 268 
 Cornish V. Scrrell, 8 B. & C. 474 ... 268 
 
 Colseu 0. Dubois, 1 Holt, 239 290 
 
 Costar V. Hetherington, 1 E. & E. 802 136 
 28 L. J., M. C. 
 
 198 135 
 
 Courteen v. Touse, 1 Cowp. 43™ ... 298 
 Conrtivron v. Meunier, 6 Exch. 74 ... 877 
 Coward v. Baddeley, 4 H. & N. 478 ... 659 
 28 L. J., Ex. 260... 659 
 
 Cowles «. Dunbar, 2 C. & P. 565 
 Cox V. Allingham, 1 Jacob, 514 
 
 ^ Coleridge, 1 B. & C. 37 .. 
 
 Coxhead v. Eichards, 2 C. B. 669 
 Coxon V, Lyon, 2 Camp. 307, n. 
 Crank v. Frith, 9 C. & P. 197 ... 
 
 2 M. & Bob. 262 
 
 Creevy ». Carr, 7 C. & P. 64 ... 
 Crompton v. Bearcroft, Bull. N. P, 
 Crook V. Dowling, 3 Doug. 76 ... 
 Cropper v. Horton, 8 D. & E. 166 
 Crosby v. Percy, 1 Camp. 303 ... 
 
 -1 Taunt. 364 ... 
 
 Crowley v. Page, 7 C. & P. 792 
 Cundell v. Pratt, Moo. & M. 108 
 Cunliffe v. Selton, 2 East, 183 ... 
 Cureton v. R., 1 B. & S 208 ... 926, 
 SOL. J.,M. C. 149 
 
 Cunie v. Child, 3 Camp. 283 ... 
 Curtis V. Curtis, 10 Bing. 447 ... 
 
 4 M. & Scott, 337 
 
 Cutts V. Pickering, Skin. 404 ... 
 IVent. 197 ... 
 
 113 
 
 PAGE 
 ... 696 
 ... 246 
 ... 662 
 ... 860 
 ... 198 
 266 
 266 
 299 
 884 
 245 
 697 
 265 
 265 
 281 
 280 
 265 
 , 926, 927 
 ... 926, 
 926, 927 
 ... 266 
 ... 769 
 ... 769 
 ... 276 
 ... 276 
 
 DALRYMPLE V. Dalrymple, 12 Hag- 
 gard's Eep. 54 884 
 
 Darby v. Ouseley, 1 H. & IT. 1 ... 217, 859 
 Daubney v. Cooper, 10 B. & C. 237 ... 662 
 Davidson v. Duncan, 7 E. & B. 229 ... 774 
 
 Davis V. Capper, 10 B. & C. 28 697 
 
 6 Man. & Ey, 53 ... 697 
 
 —Dale, Moo. & M. 614 287 
 
 Dinwoody, 4 T. E. 678 ... 274 
 
 ■ Living, Holt, N. P. 275 ... 274 
 
 Williams, 13 East, 282 ...246 
 
 Davison v. Duncan, 26 L. J., Q. B. 104 774 
 Day V. Robinson, 1 A. & E. 564 ... 769 
 
 4 Nev. & M. 884 ... 769 
 
 Dean v. Tliomaa, Moo. & M. 361 ... 886 
 
 Delaney v, Jones, 4 Esp. 191 860 
 
 Dewduey v. Palmer, 4 M. & W. 664 ... 299 
 Dixon V. Lee, 1 C. M. & E. 646 ... 291 
 
 Doe u. Andrews, Cowp. 846 277 
 
 d. Avery v. Roe, 6 Dowl. 618 ... 277 
 
 Bassett V. Mew, 2 Nev. & Per. 
 
 266 246 
 
 Beard «. Powell, 7 C. & P. 617... 266 
 
 V. BUlck, 6 Taunt. 484 243 
 
 d. Cadwalader v. Price, 16 M. & W. 
 
 603 243 
 
 u. Carter, 1 T. & J. 492 200 
 
 Cartwright, 3 B. & Aid. 326 ... 268 
 
 2 Brod. & B. 99 ... 268 
 
 d. Davies v. Gatacrc, 8 C. & P. 678 269 
 
 ■ Edwards v. Gunning, 2 Nev, & 
 
 Per. 260 246 
 
 V. Fowler, 14 Q. B. 700 ... 258, 884 
 
 d. Gilbert v. Eoss, 7 M. & W. 102 269 
 
 V. Griflin, 15 East, 293 221 
 
 Harris, 6 M. & Sel. 326 200 
 
 d. Mudd V. Suckermore, 5 A. & E. 
 
 708 267 
 
 2 Nev. & 
 
 Per. 16 267 
 
 - Oldnall V. Wolley, 8 B. & C. 22 265 
 
 -». Perkins, 3 T. E. 749 298 
 
 - d. Perry <ii. Newtoh, 5 A. & E. 614 267 
 
 ■ 1 N. &. P. 1... 267 
 
 ... 299 
 
 ... 200 
 
 ... 221 
 
 - V. Roe, 2 Camp. 280 
 
 — Salter, 12 East, 9 
 
 - Sisson, 12 East, 62 
 
 - Smith, 1 Esp. 391 
 ■ Skin. 413 
 
 Doncaster (Mayor oil v. Day, 12 Mod 
 318 
 
 262 
 
 3 Taunt. 
 242 
 
Table of Cases. 
 
 PAGE 
 
 Donne ». Martyr, 8 B. & C. 62 ... 933 
 
 2 M. S E. 91 ... 933 
 
 Dorrett v. Menx, 16 C. B. 142 246 
 
 DosweU 1). Impey, 1 B. & C. 168 ... 697 
 
 2 D. & B. 860 ... 697 
 
 Douglas V. E., 13 Q. B. 74 60 
 
 Du BairS d. Livette, I'eake, 78 .. 276 
 
 Dugdalc V. E., Dears. 64 ... 2, 778 
 
 • Dears. 254 196 
 
 1 B. & B. 436 2 
 
 2 E. & B. 129 195 
 
 22 L. J., M. C. 50 ... 778 
 
 Duncan v. Scott, 1 Camp. 102, 471, n. 244 
 
 Thwaites, 3 B. & C. 683 ... 773 
 
 6 D. & B. 447 ... 773 
 
 Dunn V. E., 18 L. J., M. C. 41, 43 192, 813, 
 815 
 
 12Q. B. 1026 ... 813,816 
 
 12 Q. B. 1031 192 
 
 Dupays v. Shepherd, 12 Mod. 216 ... 262 
 
 EASTEEN Counties Eailway Company 
 
 V. Broom, 6 Exch. 314 7 
 
 Edmonson ii. Stevenson, Bull. S. P. 8 860 
 Edmonstone v. Flaisted, 4 Esp. 160 ... 242 
 Edwards !>. Buchanan, 3 B. & Ad. 788 668 
 
 Vesey, 2 Doug. 693, n. 8, 261 
 
 Hardw. 128 261 
 
 Elden d. Keddell, 8 East, 187 246 
 
 Elsemore v. St. BriaveUs, 8 B. & C. 461 610 
 Elsworth's ca.se, 2 East, P. C. c. 19, s. 59 423 
 Embleton n. Brown, 3 E. & E. 284 ... 428 
 
 30 L. J., M. C. 1 ... 428 
 
 England v. Boper. 1 Stark. 304 ... 264 
 
 Evans il. Eees, 12 A. & E. 55 288 
 
 -^ 9 L. J., M. C. 83 288 
 
 — ■ 4 P. & D. 32 288 
 
 Everingham «. Boundell, 2 M. & Bob. 
 
 38 269 
 
 Ewer V. Ambrose, 2 B. & C. 760 ... 284 
 
 4 B. & 0. 25 ... 244 
 
 BuU. U . P. 297 ... 284 
 
 EAIEMAN u. Ives, 6 B. & Aid. 642 ... 860 
 
 1 D. & E. 262...773, 860 
 
 Falmouth (Earl of) v. Eoberts, 9 M. & 
 
 W. 469 265 
 
 Farmer's case, Trem. 106 486 
 
 Faulkner, In re, 2 C. M. & B. 526 ... 697 
 Fenn ii. Gratton, 2 Bing. K. 0. 617...490, 492 
 
 ■ 2 Scott, 56 ... 490, 492 
 
 Fentiman, Ex parte, 2 A. & E. 127 ... Ill 
 Fernandez, Ex parte, 10 C. B., N. S. 
 
 3,39,40 279 
 
 30 L. J., C. P. 
 
 321 279,697 
 
 Ferrar's case. Sir T. Eaym. 84 168 
 
 Fiueox V. Hovenden, Cro. El. 664 ... 4 
 Finnertyi). Tipper, 2 Camp. 72...217, 771, 860 
 Fisher v. Kitchingman, Barnes, 449 ... 242 
 
 Flaunery's case, 1 Lew. 183 292 
 
 Fletcher v. Calthorp, 14 L. J., M. C. 49 927 
 
 6 Q. B. 880 ... 927 
 
 , Ex parte, 1 3 L. J., M. C. 67 254 
 
 Flewster u. Boyle, 1 Camp. 187, n. ... 698 
 Flindt V. Atkins, 3 Camp. 215, n. ... 257 
 
 Flint V. Pike, 4 B. & C. 473 773 
 
 6 Dowl. & E. 528 ... 773 
 
 Foote t>. Hayne, Ey. & M. N. P. 166 ... 277 
 Forde D. Skinner, 4 C. & P. 289 ... 669 
 
 Foster ii. Compton, 2 Stark. 364 ... 242 
 Freeman u. Arkell, 2 B. 8i C. 494 ... 264 
 
 Jacob, 4 Camp. 209 ... 198 
 
 Fuentes », Montis, 38 L. J., 0. P. 95 ... 462 
 
 L. E., 4 C. P. 98 ... 462 
 
 Fulmerston u. Steward, Plowd. 102 ... 64 
 
 Fulwood's case, Cro. Car. 488 699 
 
 Furley v. Sewham, Doug. 420 290 
 
 PAGE 
 
 GAXLIAKD «. Laxton. 2 B. & S. 863 645 
 31 L. J., M. C. 
 
 123 646 
 
 Garnett v. Ferrand, 6 B. & C. 618 ... 662 
 Garrela v. Alexander, 1 Esp. 14 ... 266 
 
 . 4 Esp. 37 ... 266 
 
 4 Esp. 87, 117 ... 267 
 
 1 Holt, 420 ... 266 
 
 2 Stark. 164 ... 26S 
 
 Geeiy ». Hopkins, 2 Ld. Eaym. 861. ..261, 290 
 
 Gibbons v. Pepper, 2 Salk, 637 660 
 
 Glbbs II. Pike, 8 M. & W. 228 62 
 
 Glubb V. Edwards, 2 M. & Bob. 300 ... 266 
 
 Gogarty v. E., 3 Cox, 306 786 
 
 Goldsmid «. Bromer, 1 Hag. 324 ... 866 
 Goldstein i>. Foes, 6 B. & C. 164 ... 769 
 
 9 D. & E. 197 ... 769 
 
 Goodright v. Moss, Cowp. 591 260 
 
 Goodson o. Jones, Sty. 546 243 
 
 Goodtitle v. Braham, 4 T. B. 497 267, 664 
 
 Clayton, 4 Burr. 2224 ... 266 
 
 Lammiman, 2 Camp. 274 200 
 
 Walter, 4 Taunt. 761 ... 200 
 
 Gordon o. Dyson, 1 Brod. & B. 219 ... 246 
 
 Gould V. Jones, 1 W. Bl. 384 267 
 
 Gray v. Mihier, 8 Taunt. 789 579 
 
 E., 11 Cla. & Finn. 427... 152, 187 
 
 Green v. Bennett, 1 T. E. 666 ... 198, 204 
 Greenacre, Ex parte, 8 C. Ss P. 32 ... 266 
 Greenough v. Eccles, 5 C. B., N. S. 786 284 
 as L. J., C. P. 
 
 180 284 
 
 GaskeU, 1 Myl. & K. 98... 276 
 
 Greenwich District (Board of Works 
 
 for) 0. Maudsley, 39 L. J., Q. B. 
 
 206 - 907 
 
 L. E., 
 
 6Q. B. 397 907 
 
 Gregory v. E., 19 L. J., Q. B. 366 ... 174 
 
 16 Q. B. 957 187 
 
 16 Q. E. 974 174 
 
 Taremer, 6 C. & P. 281 ... 801 
 
 Grellier ». Neale, Peake, N. P. C. 146 264 
 Greswolde v. Kemp, C. & Mar. 636 ... 289 
 Grifaths V. WUIiams, 1 C. S J. 47 ... 267 
 Grifflts V. Ivery, 11 A. & E. 828 .. 267 
 Groenvelt v. Burrell, 1 Ld. Eaym. 253 177 
 Oumey v. Longlands, 6 B. & Aid. 330 267, 
 664 
 Gyles V. HiU, I Camp. 471, n 240 
 
 HALL 1). Ball, 8 Scott, M". E. 577 ... 269 
 
 HaU's estate. In re, 22 L. J., Ch. 177 264, 
 
 884 
 
 Hamilton v. E., 16 L. J., M. C. 9 ... 470, 474 
 
 9 Q. B. 271 470, 474, 479 
 
 Hammond d. Stewart, 1 Str. 610 289, 291 
 Hancock u. Baker, 2 B. & P. 260 ... 696 
 
 Somes, 1 E. & E. 796 ... 135 
 
 28 L. J., M. C. 196 ... 135 
 
 Winter, 7 Taunt. 205 ... 205 
 
 Hannam v. Mockett, 2 B. & C. 934 ... 319 
 
 4 D. & B. 618 ... 819 
 
 Harding •>. Stokes, 2 M. & W. 283 ... 831 
 Hardy's case, 24 How. St. Tr. 763 ... 277 
 Hargrave v. Le Breton, 4 Burr. 2426 ... 860 
 Harmer t>. Davis, 7 Taunt. 677 ... 244 
 
 Hanatt v. Wise, 9 B. 8i C. 712 ... 261 
 
 Harrington ti. Fry, By. & M. K". P. 90 267 
 
 Harris t). Cooke, 2 Moore, 687 201 
 
 8 Taunt. 639 201 
 
 Saunders, 4 B. & C. 411 ... 257 
 
 Tlppett, 2 Camp. 627 280 
 
 Harrison v. Bush, 6 E. & B. 344 ... 860 
 
 Hodson, 10 B. & C. 445 ... 662 
 
 Hartley v. Hindmarsh, 36 L. J., M. C. 
 
 255 136 
 
 L. E., 1 C. P. 653 136 
 
xxxu 
 
 Table of Cases. 
 
 PAGE 
 
 Hartshome v, Watson, 5 Bing. 1^. C. 
 
 477 299 
 
 Haynes and Rice, 3 Jones & La Touche, 
 
 «68 162 
 
 Hemmings v. Gassoo, E. B. & E. 346 ... 859 
 
 27 L. J.,Q. B. 252 869 
 
 Hennell v. Lyon, 1 B. & Aid. 182 ... 244 
 
 Henry 0. Adey, 3 East, 221 257 
 
 Henslow v. Fawcett, 3 A. St E. 51 ... 831 
 Hewson's case, 2 LewLn's C. C. 277 ... 78 
 
 HiU II. Yates, 2 Moor. 80 696 
 
 Hodgkinson v. Willis, 3 Camp. 401 ... 244 
 Hodgson ». Fnllarton, 4 Taunt. 787 ... 261 
 
 Scarlett, 1 B. & Aid. 232 ... 773 
 
 Hodnet 1). Foreman, 1 Stark. 90 ... 265 
 
 Hoe 1). Nelthorpe, 3 Salk. 164 246 
 
 Holcroft's case, 2 Hale, 246 131 
 
 Hole «. Barlow, 4 C. B., N. S. 
 27 L. J., C. P, 
 
 208 
 
 Holloway v. R., 2 Den. 287 
 
 2 Den. 296 
 
 17 Q. B. 317 
 
 891 
 ... 187, 192, 
 196, 197, 801 
 
 186 
 
 ... 187,192, 
 196, 197, 801 
 Holmes V. Pontin, Peate, N. P. C. 99... 266 
 Home II. Bentinck, 2 Brod. & B. 162 ... 277 
 
 Horn II. Noel, 1 Camp. 61 269 
 
 Honsin v. Barrow, 6 T. K. 122 640 
 
 How V. Hall, 14 Bast, 274 220 
 
 Howard ii. Smith, 3 Scott's S". E. 674... 219 
 Hughes D. Rogers, 8 M. & W. 123 ... 267 
 Humphiys, Ex parte, 19 L. 'J., M. C. 
 
 189 256 
 
 Hunter ii. Sharpe, 4 F. & F. 983 ... 860 
 
 Hurd V. Moring, 1 C. & P. 372 277 
 
 Hutchinson's case, 3 Keb. 785 131 
 
 JLDERTON!;. Ilderton, 2 H. Bl. 146 .. 884 
 llotts. Wilks, 3,B. S[ Aid 304 ... 639 
 I'Anson V. Stuart, 1 T. R. 748 867 
 
 JACOBS V. Layborn, 11 M. & W. 685 299 
 Jayne v. Price, 1 Marsh. 68 
 - 6 Taunt. 826 
 
 Jeans v. Wheeldou, 2 M. & Rob. 486 . 
 Jeli !). Oriel, 4 C. & P. '22 
 Jones 11. Clay, 1 Bos. & P. 191 ... 
 
 . — Jones, 9 L. J., Ex. 41 ... 
 
 6 M. & W. 523 
 
 9 M. & W. 76 
 
 - MacquUlon, 6 T. R. 195 
 
 - Mason, Peake, Ev. 102 
 . 2 Str. 833 ... 
 
 - Randall, Cowp. 17 
 
 - 2 Dougl. 694 
 
 . ■ Stevens, 1 1 Price, 236 
 
 Jordin v. Crump, 8 M. & W. 782 
 
 KAT V. Brookman, Moo. & M. 286 
 Kelly 11. Tinling, 36 L. J., Q. B. 231 
 
 L. B., 1 Q. B..699 
 
 Kensington v. Inglis, 8 East, 273 
 
 8 East, 289 
 
 King II. E., 14 L. J., M. C. 172 
 
 - 7 Q. B. 782 
 
 - 7 Q. B. 798 
 
 848 
 283 
 206 
 106 
 ... 204 
 ... 204 
 ... 266 
 ... 38 
 ... 265 
 ... 265 
 ... 243 
 ... 243 
 ... 860 
 ... 676 
 
 . 860 
 . 860 
 . 264 
 . 298 
 
 187,-940 
 . 940 
 , 187 
 
 Kingston's (Duchess of) case, 11 St. 
 
 Tr. 262 245,889 
 
 Kinloch's case, Fost. 31 169 
 
 Kinnersley «. Orpe, 1 Doug. 56 ... 243 
 Klrtland ii. Ponnset, 1 Taunt. 670 ... 200 
 Knight II. Dawler, Hardw. 223 ... 242 
 Knowlden ii. R., 5 B. & S. 532 ... 6 
 33 L. J., M. C. 219 .. S 
 
 LACON V. Higgins, 1 D. & R. If. P. 
 
 ■ 3 Stark. 178 
 
 884 
 884 
 
 PAGE 
 
 Lamb's case, 2 Leach, 582 232 
 
 9 Rep. 59 771 
 
 Lament ti. Crook, 6 M. & W. 615 ... 291 
 Lane v. Degbeig, Bull. N. P. 12 ... 661 
 
 Latham v. R., 6 B. & S. 636 104, 166, 937 
 
 33 L. J., M. C. 197 ... 104, 
 
 166, 937 
 Launock v. Brown, 2 B. & Aid. 692 ... 645 
 
 Lavey 11. R., 2 Den. 604 186,812 
 
 21 L. J., M. C. 10 ... 186,812 
 
 17 Q. B. 496 ... 186, 81 2 
 
 Lawrence v. Hedgcr, 3 Taunt, 14 ... 696 
 Laybourn ii. Crisp, 8 C. & P. 397 ... 244 
 
 4 M. & W. 320 ... 244 
 
 Layer's case, 6 St. Tr. 230 140 
 
 Leak's case, 12 Co. IS 672 
 
 Ledwith V. Catchpole, Cold. 291 ... 696 
 
 Lee V. Clark, 2 East, 333 60 
 
 Gansel, Cowp. 8 492 
 
 Huson, Peake, N. P. 166 ... 217 
 
 Leeds v. Cook, 4 Esp. 266 290 
 
 Le Neve v. Vestry of Mile End, 8 B. 
 
 &B. 1064 
 
 Lester ti. Jenkins, 8 B. & C. 339 
 Lewis II. Levy, Ellis, B. & E. 537 
 
 Sapio, M. & M. 39 ... 
 
 Walter, 4 B. & Aid. 606 
 
 Lcyfleld's case, 10 Co. 6., 22, £ 
 10 Co. 93 
 
 Liebman v. Pooley, 2 Stark. R. 167 
 Linford i). Fitzroy, 18 L. J., M. C. 108 85, 
 
 907 
 
 ... 242 
 
 ... 773 
 
 ... 266 
 
 ... 773 
 
 ... 264 
 
 ... 240 
 
 ... 269 
 
 - 13 Q. B. 240 
 
 Lloyd V. Passingham, 16 Ves. 84 
 Long V. Hitchcock, 9 C. & P. 619 
 Ludlow V. Charlton, 9 C. & P. 242 
 Luido V. Belisario, 1 Hag. 216 ... 
 
 M'CRAW II. Gentry, 3 Camp. 232 
 Macferson v. Thoyte, Peake, N. P. C. 
 
 20 
 
 Macgregor v. Thwaites, 3 B. & C. 24 
 
 - 4 D. & R. 695 
 
 - 6 D. & R. 447 
 
 86,88 
 ... 280 
 ... 281 
 ... 244 
 
 Mackally's case, 9 Co. 67 6. ... 11, 
 
 Macleod V. Wakley, 3 C, & P, 311 217i 
 
 Madeu v. Catanach, 7 H. & N. 360 ... 
 
 286. 
 
 31 L. J., Ex. 118... 
 
 286. 
 Maitland ii. Golney, 2 East, 434 
 
 Manners v. Postan, 4 Esp. 240 
 
 Mansell v. E., Dears. & B. 375 . . . 146. 
 168, 162, 187. 
 
 8 E. & B. 54 ... 37, 145, 
 
 168, 162, 187, 
 
 27L. J.,M. C. 4 ... 161, 
 
 162, 187, 
 Marlborough (Duke of). Ex parte, 1 
 
 New Sess. Ca. 195 
 
 Marsh «. Loader, 14 C. B., N. S. 635 ... 
 Martindale v. Falkner, 2 Com. B. Rep. 
 
 720 
 
 Mead v, Robinson, Willea, 423, 424 ..*.' 
 
 ■ Young, 4 T. R, : 
 
 Medlicot v. Joyner, 1 Mod. 4 
 
 Meekings v. Smith, 1 H, Bl. 636 
 Mercer v. Woodgate, 39 L. J., M, C. 21 
 
 ■ L. R., 5 Q. B. 26 ,.. 
 
 Merriman' <i. Hundred of Chippenham, 
 
 2 East, P. C. 709 
 
 Merry v. Green, 10 L. J., M. C. 164 
 
 7 M. & W. 623 
 
 Michell V. Brown, 1 E. & E, 267 
 
 28 L. J., M. C. 63 ... 
 
 Milligan ». Wedge, 12 A. & E. 737 ... 
 4 P. & D. 714 ... 
 
 266 
 
 267 
 773, 
 868 
 868 
 773 
 ,948 
 ,859 
 271, 
 ,287 
 271, 
 ,287 
 776 
 264 
 151, 
 ,192 
 161, 
 ,192 
 168, 
 ,192 
 
 111 
 16 
 
 238 
 269, 
 272 
 663 
 264 
 291 
 907 
 907 
 
 416 
 3.31 
 331 
 3 
 3 
 347 
 347 
 
Table of Cases. 
 
 xxxiu 
 
 MHner v. Maclean, 2 C. & ■?. 17 ... 849 
 
 Mitchell D. Johnson, Moo. & M. 176 ... 266 
 Moises V. Thornton, 8 T. K. JOS ... 260 
 
 Monks V. Dykes, 4 M. & W. 666 ... 490 
 Moor V. Kaye, 4 Taunt. 34 .„ ... 696 
 Morant I). Chamberlain, 6 H. & N. 641 907 
 Morgan v. Bridges, 2 Stark. 314 ... 299 
 
 Ed-wards, 6 Taunt 394 ... 200 
 
 Morrison v. Kelly, 1 W. Bl. 386 ... 177 
 Mortimer c. M'Callan, 6 M. & W. 68 .. 261 
 Mulcahy v. K., L. K., 3 H. L. English 
 and Irish Appeals, 306 ... 163,166,733, 
 940, 941 
 Mullett V. Hunt, 1 C. & M. 762 ... 291 
 Murray v. K., 7 Q. B. 700 883 
 
 JSf ASH V. E., 4 B. & S. 
 
 I5...60, 63, 64, 188, 
 874 
 
 33 L. J., M. C. 94 ...60, 68, 64, 
 
 188, 874 
 Nelson o. Whittal, 1 B. & Aid. 19 ... 266 
 Newton, Ex parte, 4 B. & B. 869 .„ 188 
 Nicholls Parker, 14 East, 327, n. ... 221 
 
 Noel 5>. Wells, Sid. 369 246 
 
 Nohro's case, 1 B. & 0. 267 97 
 
 Nunn, In re, 8 B. & C. 644 26 
 
 3 Man. & B. 75 26 
 
 O'BKIEN 1). E., 2 Ho. L. Ca. 466...162, 166, 
 726, 726 
 
 2 Ho. L. Ca. 469 ... 156 
 
 O'Connell v. E., 11 C. & Kn. 165 ... 70, 73, 
 76,176,187 
 
 Olive V. Gwin, 2 Sid. 146 
 Omeron v, Dowich, 2 Camp. 44 
 Omichund v. Barker, 1 Atk. 19, 21 
 1 Bull. N. 
 
 . 240 
 
 262 
 
 , 270 
 
 292 
 
 - Willes, 538 
 - 1 Wils. 84 
 
 ... 270 
 ... 270 
 ... 270 
 O'Neill V. Kruger, 4 B. & S. 389 ...943, 944 
 
 Longman, 4 B. & S. 376 ... 943 
 
 Oshom V. London I). Co., 10 Exch, 
 
 £98 279 
 
 24 L. J., 
 
 Ex. 140 279 
 
 Teitch, 1 E. & P. 317 ... 668 
 
 Overton v. E., 3 Q. 5i D. 133 812 
 
 ■■ 4 Q. B. 83 812 
 
 PAGE'S case, 6 Co. 64 
 
 Page D. Eawcett, Cro. Eliz. 227 
 
 1 Leon. 242 ... 
 
 ■ 6 Mod. 41 ... 
 
 1 Sid. 300 ... 
 
 Mann, Moo. & M. 79 .. 
 
 Pain II. Beeston, 1 M. & Bob. 820 
 Park V. Mears, 2 Bos. & P. 217 
 
 3Esp. 171 
 
 Parker v. Eosklns, 2 Taunt. 223 
 
 M'Willlam, 6 Bing. 683 
 
 Parkin v. Moon, 7 C. & P. 488 
 Parking v. Hawkshaw, 2 Stark. 239 . 
 Parmiter v. Coupland, 6 M. & W. 106 
 Pearce v. Whale, 6 B. & C. 38... 
 Pearson v. Lemaltre, 6 M. & Gr. 700 . 
 
 -6Scott,N.K.607. 
 
 Peck V. E., 8 L. J., M. C. 22 ... 
 Pedler v. Paige, 1 M. & Eob. 268 
 
 Pellew, Re, M'Cl. Ill 
 
 Pendock v. Mackinder, 2 Wils. 18 
 Percival v. Cauey, 18 Q. B. 367, n. 
 Perty s. Gibson, 1 A. & E. 48 ... 
 Peter Cook's case, 13 How. St. Tr. 83 
 Phillips V, Earner, 1 Esp. 357 ... 
 Pickering v. Noyes, 1 B. & C. 263 
 
 ... 243 
 
 ... 263 
 ... 263 
 ... 263 
 
 ... 263 
 ... 266 
 ... 281 
 ... 264 
 ... 264 
 .. 266 
 ... 296 
 ,.. 300 
 ,.. 276 
 .. 868 
 .. 860 
 .. 217, 
 
 859 
 ..217, 
 
 859 
 .. 940 
 .. 266 
 .. 90 
 .. 271 
 .. 274 
 .. 287 
 .. 160 
 .. 299 
 .. 290 
 
 Pickering «. Noyes, 2 D. & E. 386 .. 
 
 Pigot's case, 5 Co. 29 a 
 
 Pigott, fie, 11 Cox, 811 
 
 Pim D. CurreU, 6 M. & W. 234 ... 22] 
 
 Pitt D. Green, 9 East, 188 
 
 Pitton V. Walter, 1 Str. 162 
 
 Plnnkett V. Cobbett, 6 Esp. 186 ... 217, 
 
 Pocock V. Moore, By. & M. 321 ... 
 
 Pomeroy «. Baddeley, By. & M. 430 ... 
 
 Pool ff. Court, 4 Taunt. 700 
 
 Poole ». Huskisson, 11 M. & W. 827 .. 
 Pope «. Poster, 4 T. E. 690 ... 198, 
 Popham V. Pickbum, 7 H. St N. 891 .. 
 
 31 L. J., Ex. 133... 
 
 Porter's Trusts, Re, 26 L. J., Ch. 688... 
 
 PoweU V. Blackett, 1 Esp. 97 
 
 Ford, 2 Stark. 39 
 
 Hoyland, 6 Ex. 70 
 
 Priestley v. Hughes, 11 East, 1 
 
 Prince v. Blackburn, 2 East, 250 
 Purcell V. M'Namara, 9 East, 157 
 Pyke V. Crouch, 1 Ld. Eaym. 780 
 Pyne's case, Cro. Car. 117 
 
 PAGE 
 
 . 290 
 
 . 128 
 
 . 188 
 
 1,244 
 
 . 200 
 
 . 242 
 
 ,771, 
 
 869 
 
 , 694 
 
 . 296 
 
 . 200 
 
 906 
 
 1,203 
 
 774 
 
 774 
 
 264, 
 
 884 
 
 264 
 
 266 
 
 339 
 
 S86 
 
 265 
 
 203 
 
 , 261 
 
 722 
 
 QTJAEMAN v. Burnett, 6 M. & W. 
 
 499 347 
 
 Queen's (The) case, 2 Brod. & B. 284... 286 
 2 Brod. 8t B. 286, 
 
 288 _ 281 
 
 . 2 Brod. & B. 288... 300 
 
 2 Brod. & B. 289... 268, 
 
 -2Brod. &B.292... 284, 
 298 
 
 -2Brod. &B.294... 234, 
 801 
 
 - 2 Brod. & B. 302... 298, 
 301 
 
 EAMBEET ii. Cohen, 4 Esp. 213 ... 269 
 EastaU V. Stratton, 1 H. Bl. 49 ... 198 
 
 2 Saund. 291 1. ... 198 
 
 Batcliffe's case, 3 Co. 38 701 
 
 EawUngs v. Till, 3 M. & W. 28 ... 669 
 
 Bead v. Brookman, 3 T. B. 163 264 
 
 Coker, 16 C. B. 860 668 
 
 Passer, Peake, 332 269 
 
 Eeed v. Lamb, 6 H. & N. 76 831 
 
 Margison, 1 Camp. 469 240 
 
 Bees 1). Bowen, M'Clel. & T. 883 ... 245 
 
 Beeve v. Hodson, 10 Hare, App. xix ... 244, 
 
 263 
 
 B. V. Abbott, 2 C. & K. 630 473 
 
 1 Den. 178 473 
 
 Abergele, 6 A. & E. 796 100 
 
 Abingdon (Lord), 1 Esp. 226 . 771, 773 
 
 ' Abraham, 2 East, P. C. 941 ... 684 
 
 - Abiahat, 2 Leach, 284 
 
 - Ackroyd, 1 C. & K. 158 
 ■ Acton, 1 Kuss. 407 
 
 - Adams, C. & Mar. 299 
 3 C. & P. 600 
 
 - 1 Den. 88 ., 
 
 ... 343 
 ... 964 
 ... 670 
 129, 525 
 . 286 
 , 332 
 
 - E. & B. 225...42, 323, 332, 339 
 
 - Adamson, 1 C. & K. 192 . 
 
 - 2 Mood. C. C. 286 
 
 . 483 
 
 - Adderbury East, Dav. & M. 324... 916 
 13 L. J., M. C. 9... 916 
 
 - Adey, 1 Den. 571 446 
 
 ■ 19 L. J., M. C. 149 446 
 
 - Adlard, 4 B. & C. 772 
 - 7 D. & B. 840 
 
 - Ady, 7 C. & P. 140 483 
 
 - Aickles,2 East, P. C. 676...334, 662,663 
 1 Leach, 294 334 
 
 - 1 Leach, 330 220 
 
 »5 
 
XXXIV 
 
 Table of Cases. 
 
 PAGE 
 ... 259 
 ... «1 
 ... 37 
 ... 37 
 ... 814 
 109, 116 
 AJJord, 14 East, 218, ». ...202, 204, 824 
 
 K. n. Aikes, 1 Leacb, 591 
 
 Airey, 2 East, 30 
 
 Albert, Dav. & M. 89 
 
 6 Q. B. 37 
 
 Alexander, 1 Leach, 63 ... 
 
 - MS., E. T. 1830... 
 
 ' Alison, 8 C. & P. 418 
 
 Allan, C. & Mar. 296 
 
 Allen, 1 B & S. 86U 
 
 1 C. & K. 496 
 
 2C. &K. 869 
 
 7C. &P. 163 
 
 9 C. St P. 31 
 
 9 C. 8l P. 621 
 
 1 Den. 364 
 
 18 L. J., M. C. 72 ... 
 
 31 L. J., M. C. 129... 
 
 : 1 Mood. C. C. 164 ... 
 
 1 Mood. C. C. 494 ... 
 
 2 Mood. C. C. 179 ... 
 
 E. &B.613 
 
 Alleyne, Dears. 606 ... 
 
 : 4 E. & B. 18« ... 
 
 : Q. B. 1861 
 
 Allison, E. & E. 109 
 
 Almond, 6 Burr. 2686 
 
 Alsop, 1 1 Cox, 264 
 
 Amier, 6 C. & P. 344 
 
 Amos, 2 Den. 65 
 
 20 L. J., M. C. 163... 
 
 Amphlitt, 4 B. & C. 36 ... 
 
 - 6 D. & B. 126 ... 
 
 9, 627, 949 
 ... 802 
 
 106, 107 
 68,717 
 ... 717 
 ... 688 
 ... 707 
 ... 704 
 17, 717 
 ... 717 
 
 106, 107 
 ... 210 
 32,428 
 ..., 704 
 ... 388 
 ... 189 
 ... 189 
 ... 161 
 
 886, 887 
 ... 771 
 ... 817 
 ... 399 
 ... 611 
 ... 611 
 ... 771 
 ... 771 
 ... 267 
 32, 428 
 
 - Anderson, 11 Cox, 164 
 
 38 L. J., M. C. 12 
 
 L. E., 1 C. C. E. 161 32,428 
 
 2 M. 8t Eob. 469 582, 685 
 
 2 M. & Eob. 471 ... 477 
 
 1 Euss, 631 629 
 
 - Andrews, C. & Mar. 121 . 
 -2M. &Eob. 37 
 
 398, 400 
 926, 928 
 ... 777 
 ... 221 
 ... 234 
 ... 472 
 ... 639 
 
 - Annett, 2 Bum, B. L. 781 
 
 - Antrobus, 2 A. & E. 718 . 
 
 - Appleby, 3 Starlt. 33 
 
 - Archer, Dears. 449 
 
 1 F. & F. 361 
 
 1 Mood. C. C. 143...23, 69, 486 
 
 2 Mood. C. C. 283 ... 650 
 
 - Argent, 1 Mood. C. C. 164 ... 210 
 
 - Arts, 6 C. & P. 848 619 
 
 - Arnold, 8 C. & P. 621 ...226,227,261 
 
 1 Euss. 9 17 
 
 16 St. Tr. 764 18 
 
 - Amould, 8 E. & B. 660 906 
 
 27 L. J., M. C. 92 ... 906 
 
 - Arscott, 6 C. & P. 408 ... 686, 688 
 
 - Ash, 2 M. & Eob. 294 716 
 
 - Ashbum, 8 C. & P. 60 813 
 
 - Ashby FolTille, 35 L. J., M. C. 154 . 909 
 L. E., 1 Q. B. 213 . . 909 
 
 - Ashley, 1 C. & K. 198 ... 321,494 
 
 - AshmaU, 9 C & P. 236 953 
 
 - Ashman, 1 F. & F. 88 666 
 
 ' Askman, 1 Sees. Ca. 169 64 
 
 - Aslett, E. & B. 67 445 
 
 - AspinaU, 2 Stark. Evid. 700 ... 217 
 
 - Asterley, 7 C. & P. 191 471 
 
 - Astlett, 2 Leach, 964 872 
 
 - AsUey, 2 East, P. 0. 729 414 
 
 - Aston Ingham, 1 Eass. 374, n. ... 904 
 
 - Athea, 1 Mood. C. C. 329 496 
 
 - Atkins, 3 Burr. 1706, 1707 ... 4 
 
 - Atkinson, C. & Mar. 326...446, 682, 688 
 
 C. & Mar. 525 44 
 
 ?C. &P. 669 ... , ... 662 
 
 11 Cox, 330 842 
 
 . 2 EaBt, P.-C. 673 ... 382 
 
 lLeach,302 343 
 
 PAGE 
 
 B. D. Atkinson, 2 Mood. C. C. 216...582, 688 
 
 2 Mood. C. 0. 278... 44, 446 
 
 1 Euss. 20 
 
 1 Salk. 
 
 - Attwell, 2 East, P. C. 768 
 
 - Attwood, Cro. Jac 421 ... 
 
 - Audley, 1 St. Tr. 893 
 
 - Austin, 1 C. & K. 621 ... 
 
 7 C. & P. 796 ... 
 
 Dears. 612 
 
 2 East, P. C. 602... 
 
 26 L. J., M. C. 48 
 
 - Autey, Dears. & B. 296 ... 
 "6L. J.,M. C. 190... 
 
 - Aveiy, Bell, 160 
 
 8 C. & P. 696 
 
 28 L. J., M. C. 185.. 
 
 ■ Ayes, E. & E. 166 . 
 
 - Aylett, 6 A. & E. 247, n. . 
 
 8 0. & P. 669 
 
 1 T. B, 69 ... 
 
 1 T. E. 70 ... 
 
 ■ 1 T. E. 70, 71 
 
 - Azire, 1 Str. 633 
 
 - Azzopardi, 1 C. & K. 203 
 ■ 2 Mood. C C. 
 
 24 
 68 
 ... 437 
 ... 777 
 ... 27.5 
 74, 929 
 ... 71 
 ... 261 
 ... 373 
 ... 261 
 ... 582 
 ... 682 
 ... 341 
 ... 576 
 ... 341 
 ... 629 
 ... 37 
 ... 266 
 47,814 
 ... 66 
 ... 60 
 ... 276 
 
 Backler, 6 C. & P. 118 
 
 Badoock, E. & E. 249 
 
 — Badger, 12 L. J., M. C. 66 
 
 4Q.B.468 
 
 — - Bagg, 1 Boll. Eep. 79 
 
 Bailey, 4 Cox, 390 ... 
 
 6 Cox, 29 ... 
 
 Dears. 244 ... 
 
 23 L. J., M. C. 13 
 
 1 Mood. C. C. 23 
 
 1 PhU. Ev. 104 
 
 E. & E. 341 
 
 2 Stark. Ev. 63 
 
 2 Str. 1211 ... 
 
 , L. & C. 129 ... 
 
 - 31 L. J., M. C. 88 
 
 - Sainton, 2 Str. 1088 
 
 - Bake, 3 Burr. 1731 
 
 - Baker, 1 C. & K. 264 ... 
 
 1 Leach, 290 
 
 1 Mood. C. C. 231 
 
 - 2 M. & Bob. 63 
 
 288. 
 
 29, 626 
 
 ... 664 
 
 ...8,669,948 
 
 86 
 
 - Bain, : 
 
 - BakeweU, R. & B. 36 
 
 - Baldry, 2 Den. 430 
 - 21 L. J., M. C. 130 
 
 - Baldwin, 3 Camp. 266 
 - B. & B. 241 
 
 -■ — BaU, 1 Camp. 324 
 
 C. & Mar. 249 
 
 8 C. & P. 746 
 
 1 Mood. C. C. 30 ... 
 
 1 Mood. C. 0. 880 ... 
 
 X Mood. C. 0. 833 ... 
 
 E. & E. 132 
 
 Balls, 7 C. & P. 429 
 
 - 1 Mood. C. C. 470 ... 
 
 - Balme, 1 Cowp. 648 
 - 1 Cowp. 660 
 
 85 
 
 , 57 
 
 922 
 
 208 
 
 603 
 
 603 
 
 496 
 
 227 
 
 498 
 
 224 
 
 91 
 
 403 
 
 403 
 
 91, 124 
 
 4, 861 
 
 663, 668, 667 
 
 414 
 
 ... 688, 584 
 
 223 
 
 ... ■ ... 445 
 
 ... 224 
 
 ... 224 
 
 ... 441 
 
 ... 441 
 
 216, 570 
 
 ... 476 
 
 284, 298 
 
 ... 611 
 
 643,689 
 
 ... 644 
 
 216, 670 
 
 666, 670 
 
 ... 670 
 
 Balmarino (Lord), 9 St. Tr. 687- 
 
 606 
 
 Bamber, Dav. & M. 367 .. 
 
 13 L. J., M. C. 13 
 
 5 Q. B. 279 
 
 - Bamfleld, 1 Mood. C. C. 417 . 
 
 - Bannen, 1 C. & K. 296 ... 
 2 Mood. C. C. 309 ... 
 
 - Bank, Cro. Jac. 41 
 
 - Bankes, 2 Smith, 620 
 
 - Banks, 1 Esp. 146 
 
 ■ E. & E. 441 
 
 - Barber, 1 C. & K. 434 
 1 C. & K. 442 
 
 724 
 
 907, 918 
 
 907, 913 
 
 907, 913 
 
 582, 686 
 
 8,760 
 
 8,760 
 
 ... 48 
 
 ... 124 
 
 ... 794 
 
 337, 349 
 
 160, 676 
 
 ... 12 
 
Table of Cases. 
 
 B. «. Barham, 1 Mood. C. C. 161 . 
 
 Barker, 3 C. & P. 689 ... 
 
 1 East, 186 
 
 Barnard, 7 C. & P. 784 ... 
 
 Barnes, 7 C. & P. 166 
 
 2 Den. 69... 831 
 
 20 L. J., M. C. 34 .. 
 
 -36L. J., M. 0. 204.. 
 - L. K., 1 C. C. R. 46 ., 
 
 - Bamet, 2 Russ. 174 
 
 - Barratt, 9 C. & P. 387 
 
 - Barrett, 2 C. & K. 843 
 
 L. & C. 263 
 
 82 L. J., M. C. 
 
 - Barronet, Dears. 51 
 
 -IE. &B.1 
 
 - Barrow, 10 Cox, 407 
 
 38 L. J., M. C. 20 
 
 L. R., 1 C. C. R. 166 
 
 - Barry, 4 F. & F. 389 
 
 - Barthelemy, Dears. 60 
 ■ 1 E. &B. 8 ... 
 
 PAOB 
 
 , 688, 927 
 
 217, 706 
 
 ... Ill 
 
 ... 477 
 
 ... 296 
 
 , 339, 472 
 
 383, 339, 
 
 472 
 
 . 207, 323 
 
 .207, 323 
 
 ... 34 
 
 ... 700 
 
 ... 688 
 
 ... 896 
 
 ... 896 
 
 ... 88 
 
 ... 88 
 
 ... 110 
 
 ... 706 
 
 , 706 
 
 , 72 
 
 - Bartholomew, 1 C. & K. 
 
 - Bartlett, 2 Deaxi. C. L. 1617 
 
 1 Dowl. & L. 96 .. 
 
 12 L. J., M. C. 127 
 
 - 2 M. & Rob. 362 ... 
 
 - Barton, 1 Mood. 0. C. 141... 
 
 - Bass, 2 East, P. C. 666 ... 
 
 - Bateman, 8 E. & B. 684 ... 
 4 F. & F. 1068... 
 
 - 27 L. J., M. C. 96 
 
 - Bates, 2 F. & P. 317 
 
 - Bathurst, Say, 226 
 
 - Batstone, 10 Cox, 20 
 
 - Batt, 6 C. & P. 329 
 
 - Battams, 1 East, 298 
 
 - Batty, 3 Mood. C. C. 267 ... 
 
 - Baxter, 2 East, P. 0. 782 ... 
 — Leach, 680 
 
 - 6 T. R. 
 
 - Bayley, Andr. 229 
 
 Dears. & B. 121 .. 
 
 26.L. J., M. C. 4.. 
 
 - K. & R. 1 
 
 - Baylis, 3 Burr. 1318 
 
 - Bazeley, 2 Leach, 836 
 
 - BeacaU, 1 C. & P. 464 ., 
 1 Mood. C. C. 16 . 
 
 - Beachj Cowp. 229 ... 
 
 - Beale, 1 East, 183 ... 
 86 L. J., M. C. 
 
 ..668, 
 L. R., 1 C. C. R. 10 ... 
 
 - Beaman, C. & Mar. 696 ... 
 
 - Beaney, R. & R. 416 62 
 
 - Bear, 3 Salk. 417 
 
 - Beard, 8 C. & P. 142 
 
 - Beardmore, 7 C. & P. 497 
 8C. &P. 260 ... 
 
 - Beare, 1 Ld. Raym. 414 
 
 - Beaton, 1 W. Bl. 479 
 
 - Beaumont, Dears. 270 
 - 28 L. J., M 
 
 C. 54 
 
 - Beavan, Ry. & M. 242 
 
 - Beaver, 10 Cox, 274 
 
 - Becket, 1 M. & Rob. 626 ... 
 
 - Bedfordshire, 4 E.;& B. 635 
 
 - Beeston, Dears. 406 
 - 24 L. J., M. C. 6 
 
 ■ Beeton, 2 C. & E. 960, 961 
 
 1 Den. 416 
 
 18 L. J., M. C. 117 
 
 -.Beezley, 4C. &P. 220 ...76, 
 
 - Bell, 6 C. & P. 162 
 1 East, P. C. 169 
 
 ... 819 
 ... 629 
 812,814 
 812,814 
 ... 679 
 62, 561 
 ... 343 
 ... 890 
 ... 280 
 ... 890 
 ... 262 
 ... 67 
 ... 618 
 ... 626 
 ... 94 
 ... 460 
 ... 62 
 ... 62 
 62,434 
 ... 860 
 ... 450 
 ... 450 
 ... 24 
 ... Ill 
 ... 344 
 ... 446 
 324,446 
 206, 666 
 110,831 
 709, 710 
 668, 709, 
 710 
 ... 343 
 211, 349 
 ... 205 
 ... 161. 
 ... 93 
 282, 286 
 ... 771 
 ... 187 
 ... 462 
 ... 462 
 ... 849 
 ... 260 
 ... 666 
 ...910 
 ... 260 
 ... 280 
 ... 4.84 
 ... 434 
 ... 484 
 ,296,297, 
 301 
 ... 231 
 ... 762 
 
 B. u Bell, Fost. 430 
 
 2 M. & Rob. 294 
 
 Bellamy, Ky. & M. 171 ... 
 
 . — - Belllngham, Coll. 636, Add. 
 
 Belstead, R. & R. 411 
 
 Belton, 1 Salk. 372 
 
 1 Sid. 64 
 
 - 1 Vent 370 
 
 PAGE 
 ... 762 
 ... 715 
 241,242 
 ... 18 
 42,323 
 ... 91 
 ... 91 
 ... 91 
 ... 818 
 ... 110 
 64,72 
 ... 68 
 
 - Beneaeck, Peake, Add. Ca. 
 
 - Benfield, 2 Burr. 980 
 
 2 Burr. 984 
 
 3 Burr. 986 
 
 - Bennett, BeU, 1 638 
 
 3 C. & K. 124 ... .„ 820 
 
 2 Den. 240 820 
 
 — , 4 F. & P. 1105 ... 669, 711 
 
 30 L. J., M. C. 217 ... 820 
 
 28 L. J., M. C. 27 ...638 
 
 B. & R. 289 405, 496, 498 
 
 ... 244, 821 
 61,615 
 61,615 
 
 108 
 
 160 
 
 • Benson, 2 Camp. 608 
 - Bent, 2 C. & K. 17» 
 - 1 Den. 167 
 
 - Berchet, 1 Show. 106 
 
 - Berens, 4 P. & P. 842 .. 
 
 - Bemadotti, 11 Cox, 316 .. 
 
 - Bernard, C. C. Court, 1868 
 
 - Beriiman, 6 C. & P. 601 .. 
 
 - Beriy, Bell, 95 
 
 Bell, 46 
 
 38 L. J., M. C. 70 
 
 28 L. J., M. C. 86 
 
 1 M. & Rob. 463 
 
 ■4 I.E. 217 
 
 ... 29 
 
 39, 321 
 ... 343 
 . 816, 817 
 ... 342 
 816, 817 
 67, 666 
 67, 206, 775 
 - Bertrand, L. R., 1 Prlv. Coun. 620 178, 
 297 
 
 -Best, 9 C.& P. 368 837 
 
 2 Mood. C. C. 125 887 
 
 3 Ld. Raym. 1167 
 
 - 1 Salk, 174 
 
 - Betts, Bell, 
 
 28 L. J., M. C. 69 
 
 16Q. B. 1032 
 
 - Beveridge, 3 P. Wms. 489 
 
 - Biekerstafl, 2 C. & K. 261 
 
 - BidweU, 3 C. & K. 664 .. 
 1 Den. 222 
 
 - 17 L. J., M. C. 99 
 
 938, 941 
 
 ... 451 
 
 ... 461 
 
 891, 901, 902 
 
 968 
 
 881 
 
 - Biers, 1 A. & E. 327 
 -Bigg, 3 P. Wms. 419 
 
 1 Str. 18 
 
 - Billingham, 2 C. & P. 284 
 
 - Bingley, 6 C. & P. 602 
 
 56, 885 
 
 ... 835 
 
 ... 62 
 
 ... 64 
 
 ... 64 
 
 ... 843 
 
 ... 416 
 
 - R. & R. 446 8, 210, 563, 949 
 180 
 637 
 132 
 132 
 716 
 
 - Birch, 9 Irish Law Rep. 167 
 
 - Birchall, 4 F. & P. 1087 ... 
 
 - Birchenough, 7 C. & P. 576 
 - 1 Mood. C. C. 477 , 
 
 -Bird, 3C. &K. 817.. 
 
 9 C. & P. 44 ... 
 
 2 Den. 94 
 
 20 L. J., M. C. 70 
 
 -BIrdscye,4C. & P. 886 
 
 - Btrkett, 4 C. & P. 216 
 
 8 C. & P. 782 
 
 E. & R. 86 
 
 - R. & R. 261 
 
 ... 181 
 ... 131 
 ... 216 
 301,350 
 ... 272 
 ... 667 
 272, 660, 663 
 
 Birmingham and Gloucester Rail- 
 way Company, 9 C. & P. 469 
 
 3 G. & D. 336 
 
 10 L. J., M. C. 136 
 
 3Q. B. 47 
 
 - 3 Q. B. 324 
 
 - Birmingham, 8 B. 8e C. 29 
 
 - Birt, 6 C. & P. 164 
 
 - Bishop, Andr. 320 ... 
 
 5 B. & Aid. 612 ... 
 
 C. & Mar. 303 ... 
 
 6 Dowl. & L. 499 
 
 7 
 7 
 133 
 . 7 
 ,. 133 
 ,. 885 
 . 842 
 ,. 91 
 ,. 113 
 ,. 812 
 ,. 102 
 
XXXVl 
 
 Table of Cases. 
 
 E. ». Bishop, 18 L. J., M. C. 63 .. 
 
 — ■ Auckland, 1 A. & E. 744 
 
 Biss, 8 C & P. 773 
 
 2 Mood. C. C. 93 
 
 - Bitton, 6 C. & P. 
 
 - Bjomaen, L. & C. 646 
 34 L. J., M. C. ISO 
 
 - Blwkham, 2 East, P. C. 711 
 
 - Blackson, 8 C. & P. 43 ... 
 
 - Blake, 13 L. J., M. C. 131 
 - 6 Q. B. 126 
 
 PAGE 
 
 . 102 
 
 911 
 
 ... 89 
 
 ... 39 
 
 ... 138 
 
 ... 31 
 
 ... 31 
 
 ... 415 
 
 ... 71 
 
 939, 941 
 
 939, 941 
 
 - Blakemore, 2 Den. 410 ... 184, 918 
 
 21 L. J.,M. C. 60 184,913 
 
 Ry. & M. 882 ... 280 
 
 Blandy, 18 How. St. Tr. 1135- 
 
 1138 221 
 
 Blea, 8 C. & P. 735 67 
 
 Bleasdale, 2 C. & K. 765 216, 216, 360 
 
 Blenkinsop, 2 C. & K. 631 ... 679 
 
 1 Den. 276 679 
 
 17 L. J., M. C. 62 ... 679 
 
 Bllck, 4 C. & P. 377 370 
 
 Boaidman, 2 M. & Hob. 147 62, 661 
 
 Bodkin, 9 Cox, 403 227 
 
 Bolan, 2 M. & Bob. 192 93 
 
 BoUand, 2 East, P. C. 967 ... 662 
 
 Bolton, 6 C. & P. 637 324 
 
 Bond, 1 Den. 617 69, 228, 229, 816 
 
 •19L.J.,M. C.188...228, 229,315 
 
 Bontien, E. & K. 260 ... 662,663 
 
 Booth, E. & B. 47 886 
 
 Bootie, 2 Burr. 864 66 
 
 Bootyman, 6 C. & P. 300 446 
 
 Boroski, 8 St. Tr. 474 234 
 
 Borron, 3 B. & Aid. 482 Ill 
 
 - Borthwlck, 1 Doug. 207 ... 8, 11, 948 
 
 - 1 East, P. C. 360 
 
 1 Hale, 665 
 
 2 Hawk. c. 29, ss. 7, 8 
 
 1 Leach, 66 
 
 lEuss. 31 
 
 - Boswell, C. & Mar. 684 
 
 -Botfleld, C.&Mar. 151 ... 899, 
 
 - Bouchier, 4 C. 8l P. 662 .. 
 
 - Boult, 2 C. & K. 604 
 
 - Boulter, 3 C. & K. 236 .. 
 2 Den. 896 
 
 - 21 L. J., M. C. 67 
 
 11 
 
 209, 864 
 ... 699 
 ... 822 
 
 - BOulton, 2 C. & K. 917, 919 
 
 6 C. & P. 637 
 
 1 Den. 608 
 
 19 L. J., M. 0.67 
 
 - Bourdon, 2 C. & E. 366 
 
 - Bourne, 7 A. & E. 68 
 '■ 6 L. J., M. C. 129 
 
 - Bowden, 1 C. & K. 147 .. 
 - 2 Mood. C. C. 286 
 
 - Bowen, 1 C. & K. 601 
 
 1 C. & K. 504 
 
 1 0. «s Mar. 460 
 
 9 C. & P. 609 
 
 1 Den. 21 ... 
 
 1 Den. 22 ... 
 
 19L. J.,M. C.6 
 
 13Q. B. 790 
 
 - Bower, 1 B. & C. 687 
 - 2 D. & E. 842 
 
 288, 822 
 ... 481 
 43, 896 
 ... 481 
 .. 481 
 240, 242, 966 
 ... 197 
 ... 197 
 ... 402 
 ... 402 
 64,598 
 ... 129 
 ... 666 
 ... 93 
 ... 64 
 ... 698 
 ... 474 
 ... 474 
 
 - Bowers, 35 L. J., M. C. 206 
 - L. E., 1 C. C. E. 41 
 
 - Bowes, 4 East, 171, n. 
 
 - Bowler, C. & Mar. 569 
 - Coll. 673 
 
 ... 448 
 
 ... 448 
 
 214, 941 
 
 616, 828, 831 
 
 18 
 
 Bowles, 2 F. & F. 371 899 
 
 Bowman, 6 C. & P. 101, 337 ... 138 
 
 Bowser, 8 Dowl. P. C. 128 ... 848 
 
 Bowyer, 4 C. & P. 669 616, 616, 633, 
 
 634,636 
 Box, E. & B. 300 678 
 
 B. V. Box, 6 Taunt. 826 
 
 BoyaU, 2 Burr. 832 
 
 Boyce, 1 Mood. C. C. 29 
 
 Boyes, 1 B. & S. 311 
 
 ■ 2 F. & F. 167 
 
 PAGE 
 
 678 
 
 ... 2, 65, 701 
 208, 666, 666 
 ... 279, 280 
 280, 831 
 
 30 L. J., Q. B. 301 ... 279, 280 
 
 - Boynes, 1 C. & K. 66 828 
 
 - Brackenridge, 37 L. J., M. 0. 86 608 
 L.E.,1C. C. E. 133 608 
 
 - Bradford, Bell, 268 644 
 
 29 L. J., M. C. 171 ... 644 
 
 ... 806 
 ... 727 
 ... 822 
 
 - Bradshaw, 7 C. & P. 288 , 
 - Poph. 122 
 
 - Braithwaite, 1 F. & F. ( 
 
 - Bramley, L. & 0. 21 
 - B. & E. 478 
 
 Biangan, 1 Leach, C. C. 27 
 
 Brannan, 6 C. & P. 326 .. 
 
 Brawn, 1 C. & K. 144 
 
 Bray, 3 B. & S. 266 
 
 9 Cox, 218 
 
 32 L. J., M. C. 11 .. 
 
 Brazier, 1 East, P. C. 444 
 
 - 1 Leach, 199 
 
 - Breconshire, 18 L. J., M. C. 123 
 
 16 Q. B. 813 ... 
 
 -Bren, L. & C. 346 
 
 83 L. J., M. C. 69 ... 
 
 - Brewer, 6 C. & P. 363 
 - 9 Cox, 409 
 
 41, 322, 329 
 ... 177 
 ... 665 
 ... 887 
 ... 6 
 ... 824 
 ... 6 
 221, 706 
 270 
 
 916 
 916 
 ... 449 
 ... 449 
 ... 669 
 ... 283 
 498, 600 
 ... 910 
 ... 93 
 ... 96 
 
 - Brice, E. & E. 460 
 
 - Bridekirk, 11 East, 304 ... 
 
 - Bridgeman, C. & Mar. 271 
 -Brier, 19 L. J., M. C. 121... 
 14 Q. B. 668 96 
 
 - Briggs, DeatB. & B. 98 888 
 
 26L. J.,M. C. 7 888 
 
 1 Mood. C. C. 318 202, 650, 664, 
 
 665 
 
 - Brightside Bierlow, 19 L. J., M. C. 
 
 ■ 13 Q. B. 933 
 
 - Brimllow, 9 C. & P. 
 
 - 2 Mood. C. C. 122 
 
 • Brisac, 4East, 164... 
 - 4 East, 171 
 
 Brisby, 2 C. & K. 962 
 
 1 Den. 416 
 
 18 L. J., M. C. 167 
 
 Britton, 1 M. & Bob. 297 ... 
 
 Broadfoot, Fost. 164 
 
 Broadribb, 6 C. & P. 671 ... 
 
 Brook, 2 Stark. 472 
 
 Brooke, 2 T. B. 190 
 
 Brookes, C. & Mar. 543 ... 
 
 C. & Mar. 644 ... 
 
 Brooks, 2 C. & K. 402 
 
 4 C. & P. 131 ... 
 
 8 C. & P. 296 ... 
 
 Dears. 184 
 
 1 Den. 217 
 
 Brotherton, 1 Str. 702 
 
 Brown, 2 0. & K. 604 
 
 C. & Mar. 314 ... 
 
 6 C. & P. 120 ... 
 
 9 Cox, 281 
 
 Dears. 616 
 
 1 Den. 291 
 
 2 East, P. C. 487... 
 
 2 East, P. C. 502 
 
 2 East, P. C. 731 ... 
 
 2 East, P. 0. 1007 
 
 2 F. & F. 659 ... 
 
 3 F. & P. 821 ... 
 
 1 Leach, 148 
 
 17 L. J., M. C. 143 
 
 '- 36 L. J., M. C. 69 
 
 — 39 L. J., M. C. 94 
 
 907 
 907 
 17 
 17 
 86 
 ... 941 
 ... 885 
 816, 835 
 ... 816 
 ... 230 
 ... 643 
 ... 781 
 ... 299 
 111, 115 
 ... 201 
 ... 496 
 74, 929 
 319, 320 
 ... 337 
 ... 23 
 74, 929 
 ... 91 
 ... 828 
 ... 685 
 
 . 828 
 , 497 
 , 491 
 . 414 
 . 612 
 . 670 
 , 522 
 . 636 
 
 278 
 
 715 
 
Table of Cases. 
 
 B. 0. Brown, L. R., 1 C. C. K. 70 
 
 L. E., 1 C. C. K. 244 
 
 Moo. & M. 163 ... 
 
 Moo. & M. 316 ... 
 
 K. & E. 32 
 
 and others, Q. B., 
 
 1858 
 
 Browning, 3 Cox, 487 
 
 1 East, P. C. 312 
 
 Bruce, 2 Leach, 1098 
 
 R. & K. 242 
 
 Brummitt, L. & C. 9 
 
 Brunswick, 1 Mood. C. C. 26 
 
 -2EUSS. 164 ... 
 
 ■ Bryan, Dears. & B. 266 
 
 2 F. & P. 567 
 
 ) L. J., M. C. 84 
 
 - Buccleugh, 1 Salk. 358 
 
 - 2 Sauna. 169, n. 9 
 
 - Buchanan, 3 Cox, 427 
 7 Q. B. 883 ... 
 
 - Buck, 1 St. Tr. 679 
 
 - Bucklaud, 6 B. & S. 397 ... 
 34 L. J., M. C. 178 
 
 - Buckler, 5 C. & P. 118 ... 
 
 - BuckneU, 7 Mod. 56 
 
 - Buokner, Sty. 467 
 
 - Bull, 1 Cox, 137 
 
 9 C. & P. 22... 
 
 6 C. & P. 663 
 
 2 Leach, 841 
 
 - Bullock, Dears. 663 
 
 1 Moo. C. C. 324 ... 
 
 26 L. J., M. C. 92 
 
 37 L. J., M. (!. 47 
 
 - L. R., 1 C. C. R. 116 
 
 PAGE 
 ... 278 
 
 ... 716 
 61, 866 
 ... 242 
 ... 382 
 
 Feb. 
 
 108, 162 
 
 32, 428 
 ... 369 
 42, 322 
 ... 42 
 ... 476 
 ... 482 
 ... 476 
 ... 910 
 ... 910 
 ... 103 
 ... 2 
 
 , 905 
 
 . 906 
 
 267 
 
 , 909 
 
 - Bulmer. 9 Cox, 492 
 
 L. 8c C. 476 
 
 33 L. J., M. C. 171 
 
 - Bnnce, 1 F. & F. 623 
 
 - Bunkall, L. & C. 871 
 "1 L. J., M. C. 75 
 
 Burbage, 3 Burr. 1440 
 
 Burch, 4 F. & F. 407 
 
 Burdett, 4 B. & Aid. 95 
 
 4 B. & Ala. 314 ... 
 
 Dears. 431 
 
 1 Ld. Eaym. 149 ... 
 
 24 L. J., M. C. 63 
 
 - Burgess, 7 C. & P. 490 ... 
 
 L. & C. 258 
 
 L. & C. 299 
 
 32 L. J., M.C. 56 
 
 32 L. J., M. C. 185 
 
 - Burgon, Dears. & B. 11 ... 
 
 25 L. J., M. C. 105 
 
 -Burke, 10 Cox, 619. 
 
 U Cox, 138 
 
 K. & R. 496 ... 
 
 . C. 29 
 
 - Burket, Andr. 230 . 
 
 - Bumhy, 13 L. J., M. 
 
 - Burrell,.L. & C. 354 
 33 L. J., M. C. 64 
 
 - Burridge, 2 M. & Rob. 296 
 
 - 3 P. Wms '439 ... 
 
 - 3 P. Wms. 480 ... 
 
 - Burrough, 1 Vent. 305 
 
 - Burrowes, 1 Mood. C. C. 274 
 
 - Burrows, E. & E. 519 
 
 - Burnsides, Bell, 282 
 30 L. J., M. C. 42 
 
 - Burt, 11 Cox, 399 
 
 - Burton, Dears. 282 
 
 3 F. & F. 772 ... 
 
 23 L. J., M. C. 62 
 
 1 Mood. C. C. 237 
 
 1 Str. 481 
 
 76, 296, 297 
 
 ... 781 
 
 .. 344 
 
 ,. 940, 941 
 
 ... 60 
 
 940, 941 
 ... 647 
 ... 547 
 ... 483 
 
 480, 483 
 
 480, 483 
 ... 336 
 ... 341 
 ... 341 
 
 290 
 
 72 
 
 36, 768, 770, 
 
 771,774 
 .. 767, 774 
 
 161, 299 
 
 212, 832 
 
 161, 299 
 43,66 
 
 104, 666 
 41, 329 
 
 104, 656 
 41, 329 
 
 473, 479 
 ... 473 
 153,724,725 
 ... 150 
 ... 666 
 ... 91 
 ... 91 
 ... 700 
 ... 700 
 ... 864 
 ... 799 
 ... 166 
 ... 66 
 ... 493 
 ... 707 
 ... 472 
 ... 472 
 ... 900 
 
 236, 316 
 ... 19 
 
 236, 315 
 ... 450 
 
 . V. Bush, R. & R. 372 ... 
 
 — Butcher, Bell, 6 
 
 1 Leach, 265 
 
 28 L. J., M. C. 14 
 
 - 2 M. & Rob. 228 .. 
 
 PAGE 
 
 47, 203, 486 
 7, 478 
 ... 281 
 7,478 
 ... 161 
 ... 215 
 ... 885 
 . Butterwick, 2 Moo. & E. 196 292, 566 
 
 Butterworth, E. & E. 520 69, 106, 212, 
 
 600 
 
 Buttery, cit. 4 B. & Aid. 179 
 
 B. & B. 342 
 
 - Butler, 2 C. & K. 222 
 - E. & E. 61 
 
 - Button, 8 C. & P. 
 
 18 L. J., M. C. 19 
 
 11 Q. B. 929 
 
 - Byerdike, 1 M. & Bob. 179 
 
 - Cabbage, R. & E. 292 
 
 - Cadman, 1 Mood. C. C. 114 
 
 Cadwallader Lewis, 
 
 Summ. Ass. 1840 
 
 — Cain, C. & Mar. 309 
 8 C. & P. 187 
 
 - 2 Mood. C. C. 204 
 
 • Cale, E. & M. 11 
 
 ■ Ca)laliau, 8 C. & P. 154 
 
 - Callan, E. & E. 167 
 
 - Callanan, 6 B. & C. lOS 
 9 D. & B. 97 
 
 - Calvert, 3 C. & K. 201 
 
 - CampbeU, 11 Cox, 323 
 1 C. & K. 82 
 
 ... 479 
 
 246, 675 
 
 ... 659 
 
 ... 942 
 
 ... 942 
 
 2, 211, 
 
 943 
 
 327, 849 
 
 649, 661, 
 
 712 
 
 Carnarvon 
 
 670 
 
 41 
 
 ... 426 
 ... 41 
 ... 3 
 ... 446 
 ... 497 
 815, 820 
 ... 820 
 
 -t- 2 Leach, 264 ... 
 - 1 Mood. C. C. 179 
 
 - Campion, Sav. 3 
 
 - Camplin, 1 C. & K. 746 
 •IDen, f 
 
 Canfleld, 1 Mood. C. C. 42 
 
 Cannifl, 9 C. & P. 369 ., 
 
 Cannon, E. & E. 146 
 
 CapewcU, 5 C. & P. 649 ., 
 
 Carew, 1 Eol. Rep. 407 . 
 
 Carlile, 3 B. & Aid. 161 
 
 3 B. & Aid. 167 
 
 6 C. & P. 637 ... 
 
 Dears. 337 
 
 23 L. J., M. C. 109 
 
 Carney, 1 Mood. C. C. 351 
 
 Carpenter, 35 L. J., M. C. 169 
 
 - L. E., 1 C. C. E. 29 
 
 , 650 
 . 639 
 . 39 
 , 402 
 , 334 
 , 722 
 , 706 
 . 706 
 494 
 
 414 
 
 927 
 
 77 
 
 2, 3, 111, 777 
 773 
 
 - Carr, 8 C. & P. 163... 
 
 10 Cox, 664 ... 
 
 E. & R 198 ... 
 
 - E. & R. 
 
 . 686 
 , 446 
 , 446 
 
 ... 821 
 
 447, 460 
 
 ... 663 
 
 - Carroll, 7 C. & P. 146 18 
 
 1 Leach, 287 495 
 
 1 Mood. C. C. 89 403 
 
 ■ Carson, H. & E. 303 212, 445, 460 
 
 - Carter, 10 Cox, 642, 648 476 
 
 1 C. & K. 173 400 
 
 1 C. & K. 741 260, 568, 584 
 
 7 C. & P. 134 687 
 
 1 Den. 66... 260, 668, 684 
 
 2 East, P. C. 986 ... 65 
 
 5 Mod. 74... 
 
 2 Saik. 461, 689 ., 
 
 - Cartwright, 4 T. E. 490 
 -Casbolt, II Cox, 386 
 
 - Case, 1 Den. 680 ... 
 
 1 East, P. C. 165 
 
 1 Leach, 145 ... 
 
 19 L. J., M. C' 174 
 
 - Caspar, 9 C. & P. 289 
 
 - 2 Mood. C. C. 101 
 
 271 
 
 271 
 
 25 
 
 .. 74, 76, 9i9 
 
 659, 706, 711 
 
 746 
 
 ... 746 
 669, 706, 711 
 435, 952, 954 
 
 - Cass, 1 Leach, 298, n. 
 
 - Cassidy, 1 F, & F. 79 
 
 436, 962, 
 
 954 
 
 ... 224 
 
 ... 297 
 
XXXVUl 
 
 Table of Cases. 
 
 E. «. Castle, Dears. & B. 3G3 ... 
 
 27 L. J., M. C. 70 ... 
 
 Castle Morton, 3 B. & Aid. 688 
 
 Cator, 1 Esp. 14 
 
 - 4 Esp. 117 
 
 PAGE 
 ... 603 
 
 .. 603 
 
 Caudwell, 2 Den. 872, n. ... 
 
 21 L. J., M. C. 48 
 
 17Q. B. 503 ... 
 
 Chadwick, 6 C. & P. 181 ... 
 
 17L.J., M.C. 33 
 
 2 M. & Rob. 64a 
 
 11 Q. B. 173 ... 
 
 11 Q. B. 206 
 
 267 
 267, 664 
 ... 180 
 ... 180 
 ... 180 
 ... 480 
 187, 886 
 ... 662 
 ... 8S6 
 187 
 
 - Champneys, 2 M. & Kob. 25 
 
 - Chandler, Deais. 453 
 -24L. J., M. C. 
 
 Chapman, 1 C. & K. 119 
 
 2 C. & K. 846 
 
 8 C. & P. 669 
 
 1 Den. 432 
 
 18 L. J., M. C, 
 
 109 
 
 162 
 
 ' Staff. Snmm. Ass. 1850 13 
 
 - Chalking, E. & E. 334 405 
 
 - Chalkley, E. & E. 268 ... 62,547 
 
 - Chamberlain, 6 C. & P. 93 ... 133 
 10 Cox, 486 ... 627 
 1 Mood. C. C. 164... 210 
 
 ... 132 
 ... 624 
 ... 624 
 ... 464 
 ... 814 
 93, 298 
 186, 814 
 186, 
 814 
 231, 232 
 14, 957 
 ... 647 
 66, 62, 372 
 894, 896 
 894, 896 
 123, 169, 
 170 
 
 2 F. & F. 326 ... 169 
 
 -: 2F. &F. 334 ...697 
 
 31 L. J., M. C. 26 123, 
 
 169,170 
 16 Q. B. 1012 900, 902 
 
 - Charlewood, 2 East, P. C. 689 337, 349 
 
 - Chappel, 1 M. & Eob. 395... 
 
 - Chappie, 9 C. & P. 355 ... 
 K. & E. 77 
 
 - Chard, E. & E. 488 
 
 - Charles, L. & C. 90 
 
 31 L. J., M. C. 69 
 
 ■ Charlesworth, 1 B. & S. 460 
 
 - 1 Leach, 409 
 
 337, 349 
 
 ... 198 
 
 198, 724 
 
 ... 722 
 
 ... 722 
 
 L. J., 
 
 916, 916 
 
 , 1 C. 
 
 916, 916 
 
 67, 666 
 
 ... 319 
 
 ... 819 
 
 ... 904 
 
 82, 931 
 
 S2, 931 
 
 - Cheeseman, 7 C. & P. 465 ... 624 
 
 L. & C. 140 346 
 
 ■ 31 h. J., M. C. 89 ... 346 
 
 Cherry, 2 Bast, P. O. 666 346 
 
 Chevalier D'Eon, 2 Burr. 1514 ... 93 
 
 Chichester, 17 Q. B. 504, n. ... 170 
 
 Chidley, 8 Cox, 365 229 
 
 Child, 4 C. & P. 442 846 
 
 Chipchase, 2 Leach, 699 343 
 
 Chipping Sodbury, 3 Nev. & M. 104 
 
 Charnock, Holt, 301 
 
 1 Salk. 288 
 
 2 Salk. 631 
 
 4 St. Tr. 662 ... 
 
 Chart and Longbridge, 39 
 
 M. C. 107 
 
 L. E. 
 
 C. E. 237 
 
 Chatbnm, 1 Moo. C. C. 403 
 
 Cheafor, 2 Den. 361 
 
 31 L. J., M. C. 43 
 
 Chedworth, 9 C. & P. 286 
 
 Cheere, 4 B. & C. 902 ... 
 
 -7D. &E. 461 
 
 - Chisholm, E. & E. 297 
 
 - Chomley, Cro. Car. 464 . 
 
 - Chorley, 12 Q. B. 616 
 
 - Christian, C. &Mar. 388 . 
 
 - Christie, Car. Sup. 202 . 
 - 1 F. & F. 75 
 
 - Christopher, Bell, 27 
 
 678 
 
 ... 77 
 
 179, 906 
 
 206, 240 
 
 ... 222 
 
 ... 109 
 
 330, 331 
 
 -2C. &K. 994, 995 ... 284 
 
 - 1 Den. 636 284 
 
 - 19 L. J., M.C. 103 ... 284 
 - 28 L. J., M.C. 36 330,331 
 
 E. 11. Clark, 1 Bros. & B. 473 .. 
 
 Dears. 198 
 
 13 L. J., M. C. 91 .. 
 
 22 L. J., M. C. 135 
 
 ' L. J., M.C. 16 , 
 
 PAGE 
 ... 131 
 
 ... 963 
 ... 906 
 ... 963 
 182, 184 
 
 ■ Law Eep., 1 C. 0. E. 64 182, 184 
 
 6 Q. B. 887 
 
 E. &E. 181 
 
 E. & E. 358 
 
 1 Salk. 370 
 
 1 T. K. 679 
 
 Clarke, 1 BqIs. 204 
 
 1 C. & K. 421 ... 
 
 10 Cox, 474 
 
 . . Dears. 397 
 
 1 F. & F. 664 ... 
 
 — 4 F. & F. 1040 ... 
 
 2 Leach, 1036 
 
 24 L. J., M. C. 26 
 
 1 Mood. C. C. 376, n. 
 
 ■ 2 Stark. 242 
 
 . 2 Stark. 243 
 
 Clay.E. & E. 387 
 
 Clayburn, E. & E. 360 
 
 Clayton, 1 C. & K. 128 ... 
 
 Clements, 2 Den. 261 
 
 20 L. J., M. C. 193 
 
 ... 906 
 372 
 39 
 
 - Clendon, 2 Str. 789... 
 
 - Clewes, 4 C. & P. 221 
 
 - Clifford, 2 C. & K. 202 
 
 - Clifton, 6 T. E. 498 
 
 - Clinch, 2 Bast, P. C. 938 . 
 
 - Closs, Dears. & B. 460 
 27 L. J., M. C. 64 
 
 - Clube, 3 Jur., N. 8. 
 
 ... 48 
 489, 600 
 ... 887 
 ... 705 
 ... 831 
 ... 715 
 ... 372 
 ... 705 
 ... 842 
 ... 217 
 ... 706 
 ... 351 
 ... 405 
 12, 962 
 76, 260 
 76, 250 
 
 777 
 
 225, 227, 234 
 
 7 
 
 904 
 
 683, 685 
 486, 665, 600 
 486, 666, 600 
 221 
 Cluderay, 2 C. & K. 907 ... ... 660 
 
 3 C. & K. 205 185 
 
 1 Den. 614 650 
 
 19L. J.,M. C. 119 ...650 
 
 - Coates, 6 C. & P. 394 662 
 
 - Cobbett, 3 Burn's J. 98, 30th ed.... 168 
 
 Holt on Libel, 114 ... 768 
 
 Stark, on Libel, 522 ... 768 
 
 - Cobden, 3 F. & P. 833 216 
 
 - Cochrane (Lord), 3 M. & Sel. 10, n. 180 
 
 - Cock, 4 M. & Sel. 71 865 
 
 - Cockbum, Dears, h B. 203 ... 249 
 26 L. J., M. C. 186 ... 249 
 
 - Cockoroft, 11 Cox, 410 706 
 
 - Coddington, 1 C. & P. 661 ... 473 
 
 - Coe, 6 C. & P. 403 712 
 
 - Coglilan, 4 P. & F. 316 ... 858,861 
 
 - Ca(ien, 8 Cox, 41 793 
 
 11 Cox, 99 22 
 
 2 Den. 249 335 
 
 - Coke, Kcl. 12 722 
 
 - Coke and Woodbnm, 6 St. Tr. 
 
 12 666 
 
 - Cole, 1 Leach, 1095 
 1 Phil. Ev. 181 
 
 6 T. E. 642 
 
 - Coleman, 2 East, P. C. 672 
 
 - Cole.T, 10 Cox, 536 
 
 - Colley, Moo. & M. 329 ... 
 2 M. & Eob. 476 ... 
 
 - CoUicott, 2 Leach, 1048 ... 
 
 E. & E. 212, 229 
 
 4 Taunt. 300 ... 
 
 - Collier, 6 C. & P. 160 
 ■ Colling, 2 Cox, 184 
 
 - Collins, L. & C. 471 
 33 L. J., M. C. 177 
 
 -2M. &Eoh. 461... 
 
 - Colmer, 9 Cox, 606 
 
 - Combe, 1 East, P. C. 367 ... 
 1 Leach, i 
 
 Compton, 7 C. & P. 139 
 
 Conde, 10 Cox, 647... 
 
 ... 716 
 
 ... 214 
 ... 114 
 332, 471 
 ... 224 
 ... 296 
 ... 610 
 ... 566 
 ... 566 
 ... 666 
 ... 699 
 ... 105 
 2,346 
 2,346 
 ... 662 
 ... 714 
 
 61, 801 
 ... 221 
 
Table of Cases. 
 
 E. ». 
 
 Connell, 1 C. & K. 190 
 
 6 Cox, 178 
 
 Conner, 7 C. & P. 488 
 
 Conning, 11 Cox, 184 
 
 Connor, 1 Cox, 283 
 
 Coogan, 1 Leach, 448 
 
 Cook, 1 C. & P. 321 
 
 2 East, P. C. 616 
 
 1 Leach, 123 
 
 2 Leach, 406 
 
 1 Man. & Ey. 626 
 
 E. & E. 176 
 
 4 St. Tr. 737, 776 
 
 13 St. Tr. 334 
 
 Cooke, 7 C. & P. 669 
 
 8 C. & P. S82 
 
 2 Den. 462 
 
 1 P. & F. 64 
 
 1 Leach, 123 
 
 21 L. J., M. C. ] 
 
 - Cooper, 2 C. & K. S86 
 2 C. & K. 876 
 
 PAGE 
 
 763 
 
 164 
 
 684 
 
 267 
 
 277 
 
 182, 134, 567, 
 676 
 
 289 
 
 61, 201, 360 
 61, 201 
 
 360 
 
 102 
 
 66 
 
 722 
 
 166 
 
 202, 204, 206 
 
 209, 663, 668, 
 
 669, 670 
 
 816 
 
 479 
 
 61,201 
 6 ... 816 
 
 689 
 
 ... 624 
 
 5 C. & P. 635 ... 11, 12, 964 
 
 3 C. & K. 818 
 
 1 Den. 469 
 
 18 L. J., M. C. 168 
 
 - Copeland, C. & Mar. 616 ... 
 
 - Cornfield, 2 Str. 1162 
 
 - Cornwall, K. & E. 336 ... 
 2 Str. 881 
 
 - Cony, 10 Cox, 23 
 
 - Cosan, 1 Leach, 342, 343, n. u 
 
 - Cotton, 3 Camp. 444 
 
 Cro. El. 738 
 
 - Coulson, 1 Den. 692 
 
 1 Den. 693 
 
 19 L. J., M. C. 182 
 
 - County, 2 Enss. 176 
 
 - Court, 7 C. & P. 496 
 
 - Courtney, 7 Cox, 111 
 
 ... 236 
 ... 624 
 ... 624 
 ... 473 
 ... 701 
 ... 716 
 ... 498 
 ... 319 
 ... 867 
 ... 910 
 ... 48 
 ... 477 
 ... 66 
 ... 477 
 ... 34 
 ... 226 
 ... 818 
 ■ 6 Jr. L. Eep., N. S. 434 818 
 
 Courroisier, 9 C. & P. 362 
 
 Cousins, Parker, 54 
 
 . Coveney, 7 C. & P. 667 ... 
 
 Coventry (Bishop of), 1 Leon. 5 
 
 Cowell, 2 East, P. C. 617, 781 
 
 Cox, 1 C. & K. 494 
 
 4 C. & P. 638 
 
 9 Cox, 801 
 
 1 F. & F. 90 
 
 4 F. & F. 42 
 
 1 Mood. C. C. 387 ... 
 
 E. & E. 862 
 
 Coxhead, 1 C. & K. 623 
 
 Cozens, 2 Doug. 426 
 
 Crab, 11 Cox, 85 ... 
 
 CrackneU, 10 Cox, 408 
 
 Craddock, 2 Den. 31 
 
 Cradock, 3 F. & F. 837 
 
 Cramp, E. & E. 327 
 
 Cranage, 1 Salk. 385 
 
 1 Stark. Ev. 467 
 
 Craven, 2 East, P. C. 601, 602 
 
 169 
 . 90 
 . 265 
 . 161 
 ... 439 
 ... 58 
 ... 167 
 ... 828 
 ... 435 
 ... 828 
 ... 707 
 ... 666 
 ... 714 
 111, 112 
 ... 472 
 280, 426 
 66,184 
 ... 885 
 ... 612 
 ... 200 
 ... 200 
 ... 61 
 - E. & E. 14 66, 61, 213, 372, 
 373 
 
 - Craw, 8 Cox, 836 9, 950 
 
 - (.-ravFlord, 2 C. & K. 129 674 
 
 1 Den. 100 674 
 
 - Crawshaw, BeU, 303 8. 24, 893, 917 
 
 SO L. J., M. C. 68 898, 917 
 
 • Creed, 1 C. & K. 63 463 
 
 - Cisevey, 1 M. & Sel. 273, 282 771,773 
 
 - Crespin, 17 L. J., M. C. 128 ... 657 
 11 Q. B. 918 657 
 
 - Crick, 6 C. & P. 608 926 
 
 ,1 F. & F. 619 628 
 
 E. V. Cricklade, 3 E. & B. 947, ». 
 
 Crighton, E. & R. 62 
 
 CriBham, C. & Mar. 187 
 
 Crisp, 1 B. & Aid. 282 
 
 Crocker, 2 N. E. 87 
 
 - E. Si E. 97 
 
 Crockett, 4 C. & P. 644 
 
 Crofts, 9 C. & P. 219 
 
 Crohagan, Cro. Car. 832 
 
 Cromptcm, Cald. 246 
 
 Lofft, 166 
 
 Cromwell, Yelv. 15 
 
 Crook, 1 F. & F. 621 
 
 Crooke, 2 Str. 901 ... 
 
 ■ Crookes, 8 Burr. 1141 
 
 Cross, 2 C. & P. 483 
 
 3 Camp. 227... 
 
 Dears. & B. 68 
 
 1 F. & F. 610 
 
 1 Ld. Eaym. 711 ... 
 
 3 Salk. 193 
 
 Crosslcy, 2 M. & Hob. 18 ... 
 
 7 T. E. 316 
 
 Crouch, 1 Cox, 94 
 
 Croucher, 8 F. & F. 286 ... 
 
 Crowhurst, 1 C. & K. 370 .. 
 
 2 Ld. Eaym. 1863 
 
 1 Show. 337 
 
 PAGE 
 
 ... 179 
 
 .. 365, 445 
 
 11, 209, 704, 
 
 948 
 
 ... 837 
 
 ... 199 
 
 .. 199, 661 
 
 222 
 
 964 
 
 722 
 
 112 
 
 112 
 
 77 
 
 628 
 
 667 
 
 91 
 
 ... 891 
 . 891, 899 
 230 
 
 - Crowther, 6 C. & P. 316 
 
 - Crump, 1 C. & P. 668 
 
 - Crunden, 2 Camp. 89 
 
 - Cruse, 8 C. & P. 641 
 - 2 Mood. C. C. 63 
 
 Crutchley, 5 C. & P. 133 .. 
 
 7 C. & P. 814 .. 
 
 Cryer, Dears. & B. 324 .. 
 
 26L. J.,M. C. 192 
 
 ... 8 
 472, 479 
 812, 816 
 ... 19 
 ... 250 
 ... 235 
 64,65 
 ... 64 
 ... 668 
 
 . 326,349 
 ... 920 
 
 . 10, 28, 950 
 ... 28 
 ... 529 
 ... 626 
 34,436 
 ... 436 
 
 10, 629, 960 
 
 -Cuddy, IC. &K,210 
 
 - CuUen, 9 C. & P. 681 
 
 1 Mood. C C.300 686 
 
 ■ Cundick, D. & E. N. P. 18 318, 929 
 
 - Cunningham, Bell, 72 32, 428, 650 
 28 L. J., M. C. 66 428, 
 
 650 
 
 - Curgerwen, 36 L. J., M. C. 68 ... 888 
 Law Eep., 1 0. C. E. 1 888 
 
 - Curl, 2 Str. 780 
 
 - Curnock, 9 C. & P. 730 .. 
 
 - Curran, 8 C. & P. 397 
 
 - Curry, 2 Mood, C. C. 218.. 
 
 - Curtis, 2 C. & K. 763 
 
 Fost. 136 
 
 - Curvan, 1 Mood. C. C. 132 
 
 - Dade, 1 Mood. C. C. 307 
 
 - Dadson, 3 C. & K. 148 ... 
 
 2 Den. 36 
 
 20 L. J., M. C. 67 
 
 - Dale, 7 C. & P. 362 
 5 Cox, 171 
 
 - Dammaree, 8 St. Tr. 218 . 
 
 111,778 
 ... 687 
 ... 642 
 
 679, 681 
 ... 283 
 ... 646 
 
 632, 641 
 8, 663, 949 
 
 635, 646 
 
 636, 646 
 
 and Purchase, Fost. 
 
 - Dane, 1 F. & F. 323 
 
 • Danger, Dears. & B. 307 ... 
 26 L. J., M. C. 186 
 
 - Daniel, 1 Salk. 380 
 
 - Dann, 1 Mood. C C. 424 ... 
 
 - Dannelly, 2 Marsh, 671 ... 
 E. &. E. 310 ... 
 
 481 
 
 90 
 
 727 
 
 , 726 
 
 Dant, L. & C. 667 
 
 84 L. J., M. C. 119... 
 
 Darnley, 1 Stark. E. 359 ... 
 
 Darren, 10 Mod. 321 
 
 Davenport, MS., 1 Arch. 
 
 Davies, 10 B. & C. 89 .". 
 
 ■ 10 Cox, 289 
 
 ... 485 
 ... 485 
 ... 4 
 ... 131 
 13, 327 
 13, 327 
 ... 638 
 637, 638 
 ... 922 
 ... 722 
 Peel's 
 ... 834 
 49, 926 
 ... 341 
 
Table of Cases. 
 
 B. V. Davies, Dears. 640 
 
 25 L. J., M. C. 91 
 
 -6T. E. 626 
 
 Davis, 1 C. & P. 470 
 
 ^ 6 C. & P. 177 
 
 7 C. & P. 785 
 
 7 C. & P. 786 
 
 8 C. & P. 769 
 
 2 Den. 281... 
 
 2 East, P. C. 709 
 
 L. &C. 64 
 
 -^ 1 Leach, 271 
 
 1 Lea£h, 556 
 
 2 Leach, 876 
 
 20 L. J., M. C. 207 
 
 30 L. J., M. C. 169 
 
 L. K., 1 C. C. E. 272 
 
 '■ K. & B. 113 
 
 R. &B. 322 
 
 B. & R. 499 
 
 Say, 163 
 
 Dawber, 8 Stark. 34 
 
 Dawson, 2 Den. 75 
 
 20 L. J., M. C. 102 
 
 3 Stark. N. P. 62 
 
 1 Str. 19 
 
 PAGE 
 
 ... 384 
 
 ... 384 
 894, 896 
 
 ... 37 
 .. 216, 437 
 
 ... 644 
 . 159, 688 
 . 688, 928 
 46, 203, 321 
 
 ... 418 
 
 ... 641 
 
 -Day, 9 C. & P. 772 
 
 11 Cox, 605 
 
 Say, Rep. 20S 
 
 - Deacon, Fost. 9 
 
 - Deakin, 2 East, P. C. 663 ... 
 
 - Deares, 11 Cox, 227 
 
 - De Beauvoir, 7 C. & P. 17 
 
 - Berenger, 1 Stark. Ev.l25 
 
 - Dcbruiel, 11 Cox, 207 
 
 - Deeley, 4 C. & P. 679 
 1 Mood. 0. C. 303 39, 
 
 - Deer, L. & C. 240 
 
 32 L. J., M. C. 33 ... 
 
 - Deering, 11 Cox, 298 
 
 - Delavel, 3 Burr. 1434 
 1 W. Bl. 410, 439 
 
 - De Londo, 2 East, P. C. 1098 
 
 - Denmour, 8 Cox, 440 
 
 - De Mattos, 7 C. & P. 458 ... 
 
 - Dcnslow, 2 Cox, 230 
 • Dent, 1 C. & K. 249 
 
 - Denton, 21 L. J., M. C. 207 
 - 18 Q. B. 761 
 
 ... 61 
 ... 491 
 
 503, 321 
 
 ... 641 
 
 ... 438 
 
 8, 669, 948 
 
 406, 498 
 ... 498 
 2,836 
 ... 272 
 ... 683 
 ... 683 
 
 209, 212 
 ... 166 
 ... 668 
 
 ... 178 
 
 ... 72S 
 
 41, 321 
 
 ... 380 
 
 ... 828 
 
 ... 298 
 
 36,87 
 
 ... 39 
 
 203,213 
 
 342, 439 
 
 342, 439 
 
 .. 328 
 
 ... 110 
 
 ... 110 
 
 ... 633 
 
 ... 341 
 
 - D'Eon, 1 W. Bl. 617 
 
 - Deparflo, E. & E. 134 
 - 1 Tannt. 26 
 
 ... 276 
 
 ... 478 
 
 898, 912 
 
 ..3,898,912 
 
 160, 869 
 
 29 
 
 - Derbyshire, 2 B. & Ad. 147 
 
 2 G. & D. 97 
 
 1 L. J., M. C. 15 
 
 11 L. J., M C. 51 
 
 -^— Derrington, 2 C. & P. 418... 
 
 Devett, 8 C. & P. 639 
 
 Devon, 4 B. & 0. 670 
 
 6 B. & Ad. 383 
 
 7 D. & R. 147 
 
 2 L. J., M. C. 74 ... 
 
 2 Ncv. Si M. 212 ... 
 
 Dewhurst, 5 B. & Ad. 406 
 
 - 2 L. J., M. C. 92 
 
 - Dewitt, 2 C. & K. 905 
 
 - Dewsnap, 16 East, 194 
 
 - Dick, 1 Leach, 68 ... 
 
 - Dickinson, E. & R. 401 
 R. & R. 420 
 
 Dicks, 1 Enss. 19 
 
 Dilworth, 2 M. & Rob. 631 
 
 Dingier, Bull. IT. P. 243 ... 
 
 1 Holt, 699 
 
 2 Leach, 661 
 
 1 Str. 162 
 
 Dingley, 1 C. & K. 637 ... 
 
 2 Leach, 840 ... 
 
 , 29 
 , 916 
 . 916 
 916 
 916 
 227 
 ... 64 
 ... 916 
 ... 916 
 ... 916 
 ... 916 
 ... 916 
 ... 102 
 ... 102 
 ... 698 
 ... 102 
 ... 665 
 ... 76 
 ... 326 
 ... 22 
 ... 669 
 ... 261 
 ... 251 
 222, 261 
 ... 261 
 ... 227 
 
 R. V. Diprose, 11 Cox, 186 
 
 Dixon, 6 C. & P. 601 
 
 Dears. 580 
 
 PAGE 
 
 449 
 
 780 
 
 ... 330, 381 
 I 830, 331 
 208, 287, 789 
 
 25 L. J., M. 0, 
 
 3 M. & S. 15 
 
 10 Mod. 336 
 
 B. & E. 63 407 
 
 -Dobbs, 2 East, P. C. 513 499 
 
 - Dobson, 7 East, 211 484 
 
 - Dodd, 9 East, 616 112 
 
 - Dodsworth, 8 C. & P. 218 828 
 
 - Dolan, Dears. 436 186,439 
 
 - 24 L. J., M. C. 69, 61, n. 186,439 
 
 - Dolby, 2 B. & C. 104 
 1 C. & K. 238 ... 
 
 - Donally, 2 East, P. C. 715, 718 
 - 1 Leach, 193 
 
 165 
 
 153 
 
 .. 414 
 
 .. 414 
 
 683 
 
 310 
 
 Donnelly, 1 Mood. C. C. 438 
 
 and Yaughan, 2 Marsh, 
 
 671 13,953 
 
 E. &E. 
 
 963 
 
 610 
 
 76 
 
 286 
 
 .. 208, 509 
 
 61, 201, 480, 
 
 481 
 
 1 C. & K. 670 .'.. ... 266 
 
 1 Mood. C. C. 462 ... 474 
 
 1 Mood. C. C. 480 ... 716 
 
 Dovey, 2 Den. 86 ... 69, 212, 436 
 
 - Donncvan, 2 W. Bl. 612 
 
 - Doran, 1 Leach, 538 
 ■ 2 Mood. C. O. 87 
 
 - Dossett, 2 C. & K. 806 
 
 - Douglas, 1 Camp. 212 
 
 - 20 L. J., M. C. 106 . 
 
 - Dowey, 37 L. J., M. C. 62 
 
 - Dowlin, 2 Camp. 77 
 
 Peake, 170 
 
 5T. R. 311,317 .., 
 
 - 6 T. E. 318 
 
 212, 436 
 ... 477 
 ... 49 
 ... 823 
 56, 820 
 
 Dowling, Cent. Crim. Court, 1848' 169 
 
 Ey. & M. 433 ... 49, 199 
 
 Downes, 2 East, P. O. 997 ... 664 
 
 Downholland, 2 N. Sess. Ca. 177 904 
 
 15 L. J., M. C. 26 904 
 
 Downing, 2 C. & K. 382 11, 72, 948 
 
 1 Den. 62 11, 72, 948 
 
 Downshire (Marchioness of), 4 
 
 A. & E. 232 903 
 
 5 N. & M. 662 903 
 
 Dowse, 4 P. & r. 492 161 
 
 Dowsell, 6 C. » P. 398 928 
 
 Drake, 2 Salk. 661 205 
 
 Drew, 8 C. & P. 140 224 
 
 Dring, Dears. & B. 329 487 
 
 Driscoll, C. & Mar. 314 661 
 
 Druitt, 10 Cox, 692, 601, 602 ... 944 
 
 Drummond, 1 East, P. C. 363 ... 228 
 
 - 1 Leach, 378... 
 
 ■ Drury, 3 C. & K. 193 
 3 C. & K. 193 
 
 197 
 131, 132, 133, 
 134, 197 
 
 3C. &K. 200 123 
 
 18 L. J., M. C. 189 123, 131, 
 
 132,133,134,197 
 
 Duffleld, 5 Cox, 404 943 
 
 Dufflin, E. & E. 366 ... 208, 665 
 
 Duffy, 3 Cox, 46 129, 774 
 
 Dugdale, Comer's Cr. Prac. 167 ... 144 
 
 Dunboyne (Lord), 3 C. & K. 1 ... 828 
 
 Duncombe, 8 C. & P. 369 301 
 
 Dundas, 6 Cox, 880 475 
 
 Dungey, 4 F. & F. 99 ... 669, 707 
 
 Dunkley, 1 Mood. C. C. 90 421, 425, 
 
 426 
 
 Dunn, 1 C. & K. 730 92, 105, 204 
 
 1 C. & K. 782, n. (6) ... 825 
 
 4 C. & P. 643 ... 224, 225 
 
 ID. &E. 10..; 815 
 
 2 East, P. C. 976 660 
 
Table of Cases. 
 
 xli 
 
 PAGE 
 
 K. 0. Dunn, 1 Leach, 57 662 
 
 1 Mood. C. 0. 146 70, »15, 402,437 
 
 - 1 Mood. C. C. 148 
 
 2 Mood. C. C. 297 
 
 ST. K. 217 ... 
 
 - Dunnett, 1 C. & K. 425 
 
 - Dunston, Ey. & M. 109 , 
 
 - Dwerryhouse, 2 Cox, 446 
 
 - Dyer, 2 East, P. C. 767 . 
 - 6 Mod. 96 
 
 - Dyke, 8 C. & P. 261 
 
 - Dyson, E. & E. 528 
 
 - Eagleton, Dears. 515 
 -24L. J., M. C.158 
 
 - Eardisland, 2 Camp. 494 ... 
 
 3 E. & B. 960 ... 
 
 ! L. J., M. C. 145 
 
 216 
 
 204 
 
 100 
 
 688 
 
 , 818 
 
 292 
 
 .. S, 437, 948 
 
 91 
 
 272 
 ". 9, 627, 949 
 ... 484 
 ... 484 
 ... 910 
 ... 906 
 ... 905 
 
 Eari of Cardigan, Dom. Proc. 1841 202 
 
 Earls of Essex and Southampton, 
 
 Moore, 620 726,727 
 
 Earl of Somerset, 19 St. Tr. 804 ... 11 
 
 — Earl of Waldegrave, 11 L. J., M. 
 
 C. 19 103 
 
 2 Q. B. 341 103 
 
 Eamshaw, 15 East, 456 62 
 
 Eastall, 2 Russ. 163 ... 42, 323, 343 
 
 East Hagbourne, Bell, 135 ...906 
 
 - East Mark, 11 L. J., Q. B. 177 ... 906 
 
 ■ 11 Q. B. 877 906 
 
 - Eastnngton, 6 A. & E. 765 ... 911 
 
 6L. J., M. 0.17 ... 911 
 
 - East Stoke, 6 B. & S. 536... 
 34 L. J., M. C. 190 ... 98 
 
 - Eaton, 2 Stark. SI. 142 777 
 
 2 T. E. 89 96 
 
 - Eccles, 1 Leach, 274 938 
 
 - Ecclesfield, 1 B. & Aid. 348 
 
 - Edgell, U Cox, 182 
 
 - Edmonds, 4 B. & Aid. 471 
 
 908, 909, 
 911, 914 
 ... 610 
 160, 163, 
 155,167 
 
 - Edmonton, 1 M. & Eob. 24 ... 908 
 
 - Edsall, 2 Leach, 662 67, 206 
 
 - Edwards, 5 B. & Ad. 407 102 
 
 6 C. & P. 616, 521 372, 416, 
 
 421, 422 
 
 8 C. & P. 26 
 
 8 C. & P. 611 
 
 E. & K. 224 
 
 E. & E. 283 
 
 E. & E. 497 
 
 — ■ 4 Taunt. 809 
 
 4 T. E. 440 
 
 - Egerton, E. & K. 375 
 
 - Eggington, 2 Bos. & P. I 
 
 - 2 Leach, 913 
 
 282, 288 
 
 ... 624 
 
 ... 169 
 
 ... 887 
 
 34, 68, 815 
 
 ... 169 
 
 ... 85 
 
 216,414 
 
 72, 346, 
 
 406, 492 
 
 345, 406 
 
 17, 706 
 
 - Eldershaw, 3 C. & P. 396 
 
 - Eldridge, Euss. & Ey. 440 
 
 - Ellar, 1 Leach, 323 683 
 
 - Ellen Waters, 1 Mood. C. C. 457.'.. 
 
 - EUicombe, 1 M. & Eob. 260 
 
 - Ellins, E. & E. 188 
 
 - Elliot, L. & C. 108 
 
 - Elliott, 8 C. & P. 772, ». ... 
 
 1 Leach, 173 
 
 1 Leach, 173 
 
 - EUls, 6 B. & C. 146 
 
 2 C. & K. 470 
 
 C. & Mar. 664 
 
 Ey. & M. 432 
 
 - Ellison, 1 Mood. C. C. 336 
 
 - Elmstead, 1 Euss. 894 
 
 - Ehington, 1 B. & S. 688 ... 
 - 31 L. J., M. C. 14 
 
 -Else, E.&E. 142 
 
 K. & E. 143 ... 
 
 - Elswdrth, 2 East, P. C. 986, 988..660, 562 
 
 220 
 
 212, 446 
 
 ... 921 
 
 ... 40 
 
 ... 561 
 
 ... 566 
 
 216,816 
 
 ... 628 
 
 615, 828 
 
 ... 230 
 
 ... 610 
 
 ... 414 
 
 ... 136 
 
 ... 136 
 
 8,764 
 
 948 
 
 PAGE 
 
 K.». Elworthy, 37L. J.,M. C. 3 220,821 
 
 L. K., 1 C. C. E. 103 220, 
 
 821 
 
 - Emden, 9 East, 437 
 
 - Emmons, 2 M. & Eob. 279 
 
 - England, 1 C. & K. 633 .. 
 - 2 Leach, 770 ., 
 
 Enoch, 6 C. & P. 539 
 
 Entrehman, Car. & M. 248 
 
 Epps, 4 F. & F. 85 
 
 ErisTveU, 3 T. E. 713 
 
 3 T. E. 720 
 
 Esdaile, 1 F. & F. 213 
 
 Esop, 7 C. & P. 466 
 
 — Esser.2 East.P. C. 1126 
 
 Essex, Dears. & B. 871 
 
 27 L. J., M. C. 20 
 
 Esther Dyson (York Spring Ass. 
 
 1831), Matthew's Dig. 410 
 
 Etherington, 2 East, P. C. 635 ... 
 
 - 2 Leach, 671 
 
 131 
 
 808 
 
 610 
 
 252 
 
 225, 626 
 
 ... 285 
 
 ... 579 
 
 262 
 
 251 
 
 162, 938, 940 
 
 24, 624 
 
 85 
 
 Evan Eees, 6 C. & P. 6 
 
 Evans, Bell, 187 
 
 C. & Mar. 298 
 
 ■ 5C. &P. 663 
 
 8 C. & P. 765 
 
 Dears. &B. 236 
 
 2 East, P. C. 798 ... 
 
 L. &C. 252 
 
 26 L. J., M. C. 92 ... 
 
 29 L. J., M. C. 20 ... 
 
 32 L. J., M. C. 88 ... 
 
 1 Euss. 426 
 
 8 Stark. 85 
 
 Eve, 5 A. & E. 780 
 
 Everett, 8 B. S C. 114 ... 
 
 2 M. & Ry. 35 ... 
 
 Evett, 6 B. & C. 247 
 
 Ewington, C. & M. 319 ... 
 
 - 2 Mood. C. C. 228 
 
 17 
 401 
 401 
 379, S80 
 ... 476 
 
 477, 687 
 ... 39 
 ... 603 
 32,429 
 ... 476 
 ... 603 
 ... 476 
 ... 476 
 ... 625 
 209, 211 
 ... 114 
 62, 831 
 ... 881 
 ... 120 
 ... 815 
 ... 815 
 ... 286 
 ... 905 
 184, 186 
 ... 129 
 129, 
 184, 186 
 
 Fagent, 7 C. & P. 288 ... 222, 228 
 
 Falklngham, 39 L. J., M. C. 47 ... 693 
 
 L. E., 1 C. 0. E. 222 698 
 
 - Exall, 4 F. & P. 922 
 
 - Eyton, 3 E. & B. 390 
 
 - Faderman, 1 Den. 565 
 
 1 Den. 669 
 
 19 L. J., M. C. 147 
 
 - Falkner, Euss. & Ey. 481 ... 
 
 - FaUon, L. & C. 217 
 - 32 L. J., M. C. 
 
 - FaUows, 6 C. & P. 508 
 
 - Fanning, 10 Cox, 411 
 
 - Farter, 8 C. & P. 107 
 
 - Farley, 2 C. & K. 313 
 1 Cox, 76 ... 
 
 - 1 Den. 197 
 
 - Farr, 8 C. & P. 768... 
 - 4 F. & F. 336 
 
 - Farre, Kel. 43 
 
 - FarreU, 1 Leach, 362, n. (a) 
 
 - Farrer, 36 L. J., M. C. 210 
 L. E., 1 Q. B. 568 
 
 . 238 
 15, 966 
 15, 966 
 ... 416 
 
 884, 887 
 ... 272 
 ... 276 
 ... 224 
 ... 276 
 .. 284 
 ... 221 
 
 338, 493 
 ... 417 
 905 
 905 
 
 - Farrington, E. & E. 207 208, 238, 511, 
 
 789 
 
 - Farrow, Dears. & B. 164 712 
 
 -Fauntleroy, 2Bing. 413 ... 576,691 
 1 Mood. C. C. 52 676, 
 
 591 
 
 - Pawcett, 2 East, P. C. 862 ... 599 
 
 - Feamly, 1 Leach, 425 87 
 
 — 1 T. E. 816 124, 128, 835 
 
 - Fearshire, 1 Leach, 202 232 
 
 - Featherstone, Dears. 869 342 
 
 23 L. J., M. C. 127 ... 342 
 
 - Feist, Dears. & B. 590 980 
 
 - 27 L. J., M. C. 164 . 
 
xlii 
 
 Table of Cases, 
 
 R. i>. Pellowes, 1 C. & K. 116 ... 
 
 Fenmck, 1 Cox, 36 
 
 Ferguson, Deara. 427 
 
 Ferrall, 2 Den. 61 
 
 20 L. J., M. C. 39 
 
 Feirand, 3 B. & Aid. 260 ... 
 
 Ferrers (Ld.), 19 St Tr. 333 
 
 Fidler, 4 C. & P. 449 
 
 Fieldhouse, Cowp.-326 ... 
 
 Fielding, 2 Burr. 719 
 
 — 2 C. & K. 621 ... 
 
 Fiteljead, 3 Cox, 69 
 
 Filewood, 2 T. B. 146 
 
 Finacane, 6 C. & P. 661 ... 
 
 Finch, 1 Mood. C. C. 418 ... 
 
 Finmore, 8 T. K. 409 
 
 Finney, 2 C. & K. 774 ... 
 
 FirtJi, 38 L. J., M. C. 54 72, 216, 216, 
 
 316,820 
 
 ■ L. R., 1 C. 0. E. 172 72, 216, 
 
 216,316, 820 
 
 PAGE 
 
 ... 204 
 ... 660 
 ... 70 
 ... 835 
 ... 835 
 ... 118 
 ... 18 
 ... 629 
 ... 77 
 106,111 
 ... 644 
 ... 904 
 ... 115 
 ... 687 
 ... 369 
 ... 102 
 
 Fisher, 2 Camp. 663 
 
 8 C. & P. 182 ... 
 
 35 L. J., M. C. 57 
 
 L. E., 1 C. C. K. 7 
 
 Fitch, D. & B. 187 
 
 -■ — ; ; L. & C. 169 
 
 -~ 26 L. J., M. C. 169 ... 
 
 Fitchie, Dears. & B. 175 ... 
 
 26 L. J., M. C. 90 
 
 Fitzgerald, 1 C. & K. 201... 
 
 ILea^h, 20 ... 
 
 Fitzpatriclc, R. & K. 612 ... 
 
 Flanagan, 10 Cox, 561 ... 
 
 Flannagan, E. & B. 187 ... 
 
 Fleet, 1 B. & Aid. 379 ... 
 
 Fleming, 2 Leach, 854 ... 
 
 ■ Fletcher, BeU, 63 
 
 2 C. & K. 216 ... 
 
 L. &C. 180 
 
 1 Leach, 23 
 
 28 L. J., M. C. 86 
 
 31 L. J., M. C. 206 
 
 36 L. J., M. C. 172 
 
 L. E., 1 C. C. E. 39 
 
 E. & E. 68 
 
 Flint, Hardw. 370 
 
 R. &E. 460 
 
 Flower, 3 C. & P. 413 
 
 8D. &E. 612 ... 
 
 Folkes, 1 Mood. C. C. 364... 
 
 773 
 ... 632 
 ... 630 
 ... 630 
 ... 342 
 ... 588 
 ... 342 
 
 569, 688 
 
 669, 588 
 93 
 
 666, 676 
 ... 202 
 ... 460 
 ... 491 
 
 111,773 
 ... 252 
 ... 705 
 ... 613 
 ... 463 
 ... 867 
 ... 705 
 ... 463 
 ... 706 
 ... 705 
 ... 621 
 ... 63 
 ... 476 
 ... 71 
 ... Ill 
 11, 704 
 
 - Fontaine-Moreau, 17 L. J., Q. B. 
 
 ■ 11 Q. B. 1028 
 
 822 
 822 
 684 
 ... 563 
 
 Forbes, 10 Cox, I 
 
 7 C. & P. 224 
 
 Ford, 2 Den. 245 283 
 
 Kcl. 61 636 
 
 20 L. J., M. C. 171 283 
 
 INev. &M. 776 181. 
 
 E&E. 329 641,696 
 
 2 Salk. 690 271 
 
 2 Str. 1130 112 
 
 '■ 1 YelT. 99 77 
 
 Forester, 10 Cox, 868 222 
 
 4 F. & F. 857 222 
 
 . Forsgate, 1 Leaeh, 463, 464, n. 42, 
 
 323 
 
 Foiater, Dears. 456 670, 754 
 
 24 L. J., M. C. 134 670, 754 
 
 Forsyth, E&E.' 274 68, 202, 876 
 
 - Buss. & R. 277 261 
 
 162 
 
 221 
 
 231 
 
 761 
 
 ... 297, 760 
 ..46, 203, 321 
 
 - Foster, 3 C. & K. 201 
 
 6 C. & P. 325 
 
 7 C. & P. 148 
 
 7 C. & P. 494 
 
 7 C. & P. 496 
 
 B. & E. 412 
 
 E. «. Poster, E. & E. 469 
 
 FouUces, 20 L. J., M. C. 196 
 
 1 Prac. Eep. 720 ... 
 
 Fountain, 1 Sid. 152 
 
 Fowle, 4 C. & P. 692 
 
 2 Ld. Eaym. 1462 ... 
 
 Fowler, 4 Bf & Aid. 273 ... 
 
 Fox, Q.B. 1860 ... 
 
 Frampton, Dears. & B. 685 
 
 ■ 27 L. J., M. C. 229 
 
 PAGE 
 ... 814 
 06, 102 
 96, 102 
 ... 116 
 
 - France, 2 M. & Bob. 207 ... 
 
 - Frances, 4 Cox, 57 
 
 - Francis, 1 East, P. C. 133, n. 
 
 E. & E. 209 
 
 2 Str. 1016 
 
 6 St. Tr. 58 
 
 - Franiland, L. & C. 276 
 ! L. J., M. C 
 
 ... 178 
 
 ... 103 
 
 ... 436 
 
 ... 436 
 
 ... 263 
 
 ... 19 
 
 I... 233 
 
 ... 662 
 
 164,165,416 
 
 ... 233, 723 
 
 46 
 
 - Franklin, 9 St. Tr. 269 
 
 - Franks, 2 Leach, 736 
 
 - Fraser, 1 M'Nally Et. 66 ., 
 
 1 Mood. C. C. 407 
 
 1 Mood. C. C. 419 
 
 69 
 
 46 
 
 - Fray, 1 East, P. C. 236 
 
 - Frederick, 2 Str. 1094 
 
 - Freeman, 5 C. & P. 634 ... 
 
 - Freeth, E. & E,127 
 
 - French, 39 L. JT, M. C. 68 
 L. E., 1 C. C. R. 217 
 
 -K.&R. 491 
 
 - Pretwell, L. & C. 161 
 
 L. & C. 443 
 
 31 L. J., M. C. 146 
 
 33 L. J., M. C. 128 
 
 ... 763 
 ... 2?4 
 ... R83 
 ... 696 
 ... 632 
 ... 275 
 ... 449 
 ... 477 
 ... 589 
 ... 689 
 42, 322, 493 
 627 
 
 - Friar, 1 ChittyVEep. 702 
 
 - Friend, R. & R. 20 .. 
 - 4 St. Tr. 699 
 
 ... 666 
 ... 627 
 ... 666 
 ... 112 
 1,624 
 722 
 
 Frost, 9 C. & P. 129...724, 725, 726, 727 
 
 9 C. & P. 149 210 
 
 9C. &P. 169 161 
 
 Dears. 474 ... 40,202,207 
 
 24L. J., M. C. 116... 202,207 
 
 2 Mood. C. C. 140 726 
 
 Froud, 1 Brod. & B. 300 ... 662, 567 
 R. & R. 389... 562, 567, 584 
 
 Fry, Dears. Sc B. 449 
 
 27 L. J., M. C. 68 ... 
 
 2 M. & Rob. 42 
 
 R. & R. -182 
 
 Fuidge, L. & C. 390 
 
 iL. J., M. C. 74 
 
 - FuUarton, 6 Cox, 194 
 ■ Fuller, 1 Bos. & P. 180 
 
 478 
 ... 478 
 ... 928 
 ... 59 
 5,215 
 5,215 
 ... 207 
 62, 61, 62, 
 64, 784 
 ... 255 
 ... 491 
 .. 491 
 62 
 
 7 C. 85 P. 269 
 
 2 East, P. C. 498 
 
 1 Leach, 187 
 
 Leach, 916 ... 
 
 R. & R. 308 . 209, 236,238, 758 
 
 Furneaux, R. & R. 336 444 
 
 Fumival, R. & R. 445 489 
 
 • Furzey, 6 C. 8i P. 81 842 
 
 Gaby, R. & R. 178 .. 43,323 
 
 Gadbury, 8 C. & P. 676.. .218, 964, 965 
 
 - Gainer, 7 C. & P. 231 
 
 - Gallard, 1 Sess. Ca. 231 ... 
 -Gallears, 2C. & K.982 ... 
 
 — 1 Den. 601 
 
 19 L. J., M. C. 13 
 
 - Galloway, 1 Mood C. C. 234 
 
 - Gamhle, 10 Cox, 645 ... 
 
 - Gammon, 5 C. & P. 321 ... 
 
 - Garbett, 2 C. & K. 674 ... 
 1 Den. 236 
 
 - Gardener, 1 Mood. C. C. 390 
 
 - Gardiner, 8 C. & P. 737 ... 
 
 2 Mood. C. C. 95 
 
 • Gardner, 9 Cox, 332 
 
 927 
 
 ... 920 
 
 ... 319 
 
 58, 319 
 
 ... 319 
 
 ... 70 
 
 664, 668 
 
 ... 707 
 
 230, 279 
 
 230, 279 
 
 ... 643 
 
 812, 826 
 
 812, 825 
 
 ... 235 
 
Table of Cases. 
 
 xliii 
 
 PAGE 
 
 109, 380 
 
 ... 2(il 
 
 ... 288 
 
 424, 425 
 
 ... 482 
 
 ... 331 
 
 ... 482 
 
 ... 331 
 
 184, 966 
 
 1 East, P. C. 493, 672... 490 
 
 R. V. Gardner, 1 C. & K. 623 ... 
 
 2 Camp. 513 
 
 8 C. & P. 737 ... 
 
 1 C. & P. 479 ... 
 
 Dears. & B.40 ... 
 
 L. & C. 243 
 
 25 L. J., M. C. 100 
 
 32 L. J., M. C. 35 
 
 Garland, 11 Cox, 224 
 
 1 Leach, 144 
 
 - Garner, 2 C. & K. 920 ... 
 
 1 Den. 329 
 
 3F. &F. 681 ... 
 
 4F. &P. 346 ... 
 
 18L. J.,M. C. 1 
 
 - Garrett, Dears. 233 
 
 2F. &F. 14 ... 
 
 23 L. J., M. C. 20 
 
 - Garside, 2 A. & £. 266 ... 
 -4t. J., M. C. 3 .. 
 
 490 
 ... 225 
 
 185, 225 
 ... 208 
 ... 208 
 
 185,225 
 ... 48J 
 ... 341 
 ... 481 
 97,621 
 ... 621 
 ... 4lS 
 223 
 
 Gascoigne, 2 East, P. C. 709 
 
 Gay, 7 C. St P. 230 
 
 Gaylor, Dears. & B. 288...12, 627, 953 
 
 Geach, 9 C. & P. 499 ...151,158,570 
 
 Geary, 2 Salk. 630 
 
 Geering, 18 L. J., M. C. 215 
 
 Genge, Cowp. 13 
 
 George, C. & Mar. Ill ... 
 
 -11 Cox, 41 
 
 - Gerrish, 2 M. & Rob. 219 
 
 - Gibbons, 1 C. & P. 97 ... 
 L. & C. 109 
 
 31 L. J., M. C. 98 
 
 R. & R. 432 ... 
 
 R & R. 442 ... 
 
 - Gibbs, Dears. 445 
 24 L. J., M. C. 62... 
 
 1 Str. 497 
 
 - Gibson, Car. & M. 672 ... 
 
 2 East, P. C. 608 
 
 8 East, 107 
 
 1 Leach, 357 
 
 - Giddins, C. & Mar, 634 ... 
 
 - Gilbert, 1 C & K. 84 ... 
 -1 Mood. C. C. 186 
 
 Gilbie, 5 M. & Selw. 520 .. 
 
 Gilbrass, 7 C. & P. 444 ... 
 
 Gilchrist, C. & Mar. 224... 
 
 2 Leach, 667 ... 
 
 2 Mood. C. C. 233 
 
 166 
 
 ... 208 
 
 ... 933 
 
 ... 27* 
 
 ... 715 
 
 ... 756 
 
 ... 225 
 
 ... 817 
 
 ... 817 
 
 ... 491 
 
 ... 496 
 
 343, 347 
 
 343, 347 
 
 ... 486 
 
 ... 284 
 
 ... 492 
 
 126, 129 
 
 ... 492 
 
 64, 419 
 
 ... 406 
 
 ... 336 
 
 ... 103 
 
 .. 295 
 
 373, 584 
 
 57, 205 
 
 ... 373, 
 
 584 
 
 473, 478 
 
 473, 478 
 
 ■ R. 8!R.366, H. 
 - Gilham, 1 Mood. C. C. 203 
 
 R. & M. 486 ... 
 
 6 T. R. 267 
 
 - Giles, L. St C. 502... 
 
 34 L. J., M. C. 50 ., 
 
 1 Mood. C. C. 166 ...7, 569, 574 
 
 ~ " ~ "" ... 929 
 
 ... 230 
 ... 226 
 ... 832 
 ... 243 
 ... 425 
 55, 939 
 ... 451 
 ... 451 
 ... 65 
 ... 661 
 ... 318 
 ... 224 
 208, 665 
 ... 267 
 267, 512, 
 616, 633 
 
 Giorgetti, 4 F. St F. 646 155 
 
 Girdwood, 2 East, P. C. 1120.. .35, 423 
 
 2 East, P. C. 1121 .427, 864 
 
 1 Leach, 142 ...35, 423, 427, 
 
 854 
 Glanfleld, 3 East, P. C. 1024 ... 611 
 
 - Gilkes, 8 B. St C.439 .. 
 
 - Gill, 1 Arch. P. A. 302 .. 
 
 2 B. St Aid. 204 
 
 Dears. 289 
 
 23 L. J., M. C. 50 .. 
 
 H. Si R. 431 
 
 1 Str. 490 
 
 - Gillies, R. St R. 366 
 -Gillis, 11 Cox, 69 
 
 - Gillow, 1 Mood. C. C. 86.. 
 
 - Gilson, 2 Leach, 1007 
 R. St R. 138 
 
 R. D. Glass, 2 C. 8l K. 395 ... 
 
 Gleed, Harrison's Dig. 849 
 
 Glen, 3 B. St Aid. 373 ... 
 
 GlosBop, 4 B. 8t Aid. 619 . 
 
 PAGE 
 ... 379 
 ... 275 
 ... 92 
 
 ... 200 
 
 - Gloucestershire, C. & Mar. 606... 916 
 
 Glover, L SiC. 466 
 
 33 L. J., M. C. 169 
 
 R. St R. 269 
 
 Glyde, 37 L. J., M. C. 107 
 
 L. R., 1 C. C. R. 139 
 
 . Gnosil, 1 C. St P. 304 ... 
 
 Goate, 1 Ld. Raym. 737 ... 
 
 Goddard, 2 F. St F. 361 ... 
 
 2 Hale, 256 
 
 2 Ld. Raym. 922 
 
 • 3 Salk. 171 
 
 - Godfrey, Dears. St B. 426 
 
 1 Leach, 287 .. 
 
 -Goff, B. StR. 179 
 
 -Goffe, 1 Vent. 216 
 
 - Gogerly, R. St B. 343 ... 
 
 - Golde, 2 M. St Bob. 425 ... 
 
 - Goldshede, 1 C. St K. 657 
 
 - Goldthorpe, C. Si Mar. 335 
 -2 Mood. C. C. 244. 
 
 .. 450 
 ... 450 
 389, 390 
 ... 330 
 ... 330 
 
 . 414,4)6 
 ... 567 
 ... 818 
 ... 134 
 ... 134 
 ... 65 
 ... 59 
 ... 400 
 ... 27 
 ... 646 
 
 8, 210, 947, 
 948 
 
 Gompertz, 9 Q. B. 824 
 
 Gooch, 8 C. St P. 293 
 
 Goode, 7 A. St E. 536 
 
 C. «! Mar. 682 
 
 459 
 
 230 
 
 715 
 
 715 
 
 180, 939 
 
 317, 369 
 
 21, 141 
 
 ... 342 
 
 Goodenough, Dears. 210 451 
 
 Goodfellow, 1 C. St K. 724 ... 928 
 
 C. St Mar. 669...819, 821, 
 
 822 
 — 1 Den. 81 928 
 
 - Goodhall, 2 C. St K. 293 712 
 
 1 Den. 187 712 
 
 B. St R. 461 477 
 
 - Goodman, 1 F. St F. 602 615 
 
 ■ Goodwin, 10 Cox, 534 757 
 
 - Gorbutt, Dears. St B. 166 ... 131, 314, 
 
 26 L. J., M. C. 47... 131,'314, 
 
 446 453 
 
 - Gordon, C. St Mar. 410 243 
 
 1 East, P. C. 352 ... 11 
 
 - (Lord George), Dougl. 
 
 690, 693... 
 1 Leach, 515 ., 
 
 R. St R. 48 ... 
 
 1 Russ. 707 
 
 21 St. Tr. 535 
 
 Gore, Co. 81 
 
 Gorge, 3 Salk. 188 
 
 Goss, Bell, 208 ... 
 
 ) L. J., M. C. 90 
 
 Gotley, K. St R. 84 
 
 Gough, 2 Dougl. 791 
 
 1 M. St Rob. 71 
 
 723, 726 
 
 11, 238, 840, 
 
 953 
 
 26, 886, 888 
 
 699 
 
 221 
 
 635 
 
 4 
 
 ... 473, 475 
 ... 473, 475 
 
 837 
 
 27 
 
 70, 420 
 
 - Gould, 3 Burn's J. 98 (30th ed.) 168 
 
 9 C. St P. 364 ... 231, 236 
 
 1 Leach, 4 402 
 
 ■ 1 Salk. SOI 836 
 
 759 
 
 255 
 
 39, 203, 213 
 ... 774 
 ... 512 
 
 271 
 
 ...11, 71, 704 
 
 ... 209, 509 
 
 ... 60 
 
 ... 60 
 
 Great Bolton, 8 B. St C. 71 ... 492 
 
 Great Broughton, 2 M. St Rob. 
 
 444 905 
 
 — Great Canfield, 6 Esp. 136 903, 906 
 
 - Gover, 9 Cox, 282 .. 
 
 - Grady, 7 C. St P. 650 
 
 - Graham, 2 Leach, 547 
 
 - Grant, 5 B. 8t Ad. 1081 
 
 4F. 84 F. 322 
 
 Ry. & M. 270 
 
 - Gray, 7 C. St P. 164 
 
 4F.8tF. 1102 
 
 L. Si C. 365 ... 
 
 - 38 L. J., M. C. 78 
 
xliv 
 
 Table of Cases. 
 
 , PAGE 
 
 R. B. Great North of England Railway 
 
 Company, 9 Q. B. 315 
 
 Green, S C. & K. 209 
 
 6 C. & P. 312 
 
 7 C. & P. 156 
 
 Dears. & B. 113 
 
 3 F. & F. 274 
 
 - 26 L. J., M. C. 17 , 
 
 7 
 ... 570 
 ... 227 
 
 ... 638 
 132, 322 
 ... 701 
 132, 322 
 ... 621 
 ... 481 
 .. 277 
 
 Greenacre, 8 C. & P. 35 .. 
 
 Greenhalgh, Dears. 267 .., 
 
 Greenslade, 1 1 Cox, 412 .. 
 
 Greenwood, 2 Den. 453 .. 12, 754, 952 
 
 21 L. J.,M.C.127... 754, 
 
 952 
 
 Gregg, Fost. 198, 217, 218 ... 728 
 
 10 St. Tr. App. 77 728 
 
 Gregory, 5 B. 8l Ad. 555 ...3, 893, 900 
 
 2F. &F. 153 ... 
 
 3 L. J., M. C. 25 .. 
 
 36 L. J., M. C. 60 
 
 L. R., 1 C. C. R. 77 
 
 7 a B. 274 
 
 8 a. B. 603 
 
 1 Salk. 372 
 
 Grevil, 1 And. 195 
 
 Grey, 2 East, P. C. 708 ... 
 
 4 F. & F. 73 
 
 Grice, 7 C. & P. 803 
 
 Griepe, 1 Ld. Raym. 256... 
 
 Griffln, 11 Cox, 402 
 
 R. 8! R. 151 
 
 Griffith, 1 C. & P. 298 ... 
 
 Griffiths, 8 C. Si P. 248 ... 
 
 9 C. & P. 746 ... 
 
 Dears. Si B. 548 
 
 - 27 L. J., M-. C. 205 
 
 - Griggs, T. Raym. 1 
 
 - Grimes, Fost. 79, re. 
 
 - Grimwade, 1 C. Si K. 592 
 1 Den. 30 
 
 - Grimwood, 1 Price, 367 ... 
 
 - Grindley, 1 Russ. 8 
 
 - Groomhridge, 7 C. St P. 582 
 
 - Grosvenor, 2 Str. 1193 ... 
 • I Wils. 18 
 
 - Grout, 6 C. & P. 629 
 
 - Grove, 7 C. Sc P. 635 
 - 1 Mood. C. C. 447 . 
 
 Grover, 8 Dowl. 325 
 
 Gruncell, 9 C. Si P. 365 ... 
 
 Guelder, Bell, 284 
 
 30 L. J.. M. C. 34 
 
 Guernsey, 1 P. Si F. 394 ... 
 
 ^'Guisse, 1 Ld. Raym. 257 
 
 Gully, 1 Leach, 98 
 
 Gurney, 10 Cox, S50 
 
 Gutch, M. Sc M. 433 
 
 Guthrie, 39 L. J., M. C. 95 
 
 L. R., 1 C. C. R. 241 
 
 Guttridge, 9 C. Si P. 228 ... 
 
 - 9 C. Si P. 471 ... 
 
 - Gwyn, 1 Str. 401 
 
 - Haddock, Andr. 145 
 
 - Hadfleld, Coll. 580 
 39 L. J., M. C. 131 
 
 ■ L. R., 1 C. C. R. 253 
 
 - Haine, 6 C. Si P. 105 
 
 - Haines, 2 C. Si K. 368 ... 
 R. Sir. 451 
 
 - Hains, Comb. 337 
 
 12 Mod. 24 
 
 -Hale, 1 Str. 416 
 
 - Hall, 1 B. Si C. 123 
 
 2 W. Bla. Rep. 1110 
 
 2 C. Si K. 947 
 
 3 C. Si P. 409 
 
 8 C. Si P. 351 
 
 1 Den. 381 
 
 638 
 893, 900 
 951,955 
 951,955 
 ... 37 
 ... 40 
 ... 109 
 ... 952 
 ... 416 
 ... 917 
 ... 928 
 ... 816 
 ... 634 
 ... 231 
 ... 650 
 ... 664 
 ... 2«3 
 ... 538 
 ... 588 
 ... 275 
 ... 408 
 423, 894 
 423, 854 
 ... 179 
 ... 18 
 16, 705 
 ... 112 
 „. 112 
 ... 637 
 ... 454 
 ... 454 
 ... 96 
 327, 345 
 ... 453 
 ... 453 
 ... 325 
 ... 271 
 ... 137 
 ... 831 
 ... 771 
 710 
 710 
 
 221, 706 
 
 ... 261 
 
 ... 903 
 
 ... 18 
 
 ... 544 
 
 ... 544 
 
 ... 424 
 
 ... 638 
 
 ... 497 
 
 .. 247 
 
 ... 247 
 
 ... 777 
 
 ... 935 
 
 ... 85 
 
 ... 326 
 
 ... 417 
 
 ... 221 
 
 ... 326 
 
 R. V. Hall, 2 D. 81 R. 241 
 
 1 P. Si F. S3 
 
 2 Leach, 559 
 
 18 L. J., M. C. 62 
 
 1 Mood. C. C. 474 
 
 R. Si R. 355 
 
 R. Si R. 463 
 
 3 Stark. 67 ... 
 
 1 T. R. 320 
 
 PAGE 
 ... 935 
 ... 938 
 ... 224 
 
 ... 448 
 
 497 
 
 454 
 
 267, 453, 454 
 
 37, 62 
 
 Hallard, 2 East, P. C. 498 491 
 
 - Hallett, 3 C. Si K. 130 
 
 9C. Si P. 743 ... 
 
 2 Den. 237 
 
 20 L. J., M. C. 197 
 
 - Halliday, Bell, 257 
 
 -29 L. J., M. C. 148 
 
 - Halloway, 1 C. & P. 127 ... 
 1 C. «l P. 128 ... 
 
 - Halpiu, 9 B. & C. 65 
 -Hamilton, 1 C. Si K. 212... 
 - 7 C. 8l P. 448 ... 
 
 ... 815 
 
 ... 283 
 
 186,815 
 
 ... 186, 
 
 815 
 ... 275 
 ... 275 
 ... 34 
 58, 315 
 ... 774 
 ... 424 
 
 941 
 
 ■ 8 C. Si P. 49 403, 416, 419 
 
 •■ 1 Leach, 348 
 
 - Hammersmith, 1 Stark. 357 
 
 - Hammon, 2 Leach, 1083 ... 
 R. Sc E. 221 ... 
 
 - 4 Taunt. 304 
 
 - Hammond, 2 East, P. C. 1119 
 
 2Esp. 718 ... 
 
 1 teach, 447 
 
 2 Leach, 449 
 
 - Hampton, Greenw. Coll. 
 
 Stat. 
 
 .. 402 
 ,.. 907 
 ... 343 
 ... 343 
 .. 343 
 .. 424 
 .. 941 
 .. 23 
 424 
 
 1 Mood. C. C. 255 
 R. Si B. 170 
 
 - Hancock 
 
 - Handley, C. Si Mar. 547 
 
 5 C. Si P. 565 .. 
 
 1 F. Si F. 648 .. 
 
 - Hankey, I Burr. 316 
 
 - I-lankins, 2 C. Si K. 823 .. 
 -Hanks, 3 C. Si P. 419 
 
 - Hanley, Car. Sup. 254 .., 
 -Hann, 3 Burr. 1716 
 -Hannon, 9 C. Sr P. 11 
 
 - 2 Mood. C. C. 77 
 
 ■Hanson, 2 C. 8: K. 912, 
 
 C. Si Mar. 334 .. 
 
 2 Mood. C. C. 245 
 
 Paley by Dowling, 45, n. 210 
 
 ■ Hapgood, L. R., 1 C. C. R. 221... 164, 
 707 
 
 43 
 ... 564 
 ... 405 
 ... .327 
 ... 926 
 ... 702 
 ... 112 
 ... 276 
 ... 815 
 ... 884 
 ... Ill 
 ... 608 
 ... 608 
 294, 659 
 ... 570 
 570 
 
 - Harding, R. Si R. 125 
 - 2 Vent. 315 
 
 Hardwick, 1 Phill. Ev. 410 
 
 Hardy, 1 East, P. C. 60 ... 
 
 1 East, P. C. 98, 99 
 
 - 24 How. St. Tr. 755 
 -24 St. Tr. 418 
 
 - Hargrave, 5 C. Si P. 170 .. 
 
 - Harland, 8 A. & E. 826 .. 
 
 2 M. Si Rob. 141 
 
 8 L. J., M. C. 60 
 
 - 1 Per. Si D. 93 .. 
 
 Harley, 1 C. 8i K. 89 
 
 4 C. Si P. 369 .. 
 
 2 M. 8l Rob. 473 
 
 Harman, 1 Hale, 534 
 
 Harmer, 2 Cox, 487 
 
 Harmwood, 1 East, P. C. 440 
 
 Harpur, 5 Mod. 9Q 
 
 Harries, 13 East, 270 
 
 Harris, 5 B. Si Aid. 926 ... 
 
 1 C. Si K. 751 ... 
 
 C. Si Mar. 661 ... 
 
 6 C. Si P. 159 ... 
 
 7 C. Si P. 253 ... 
 
 ... 343 
 722, 728 
 ... 225 
 ... 722 
 ...209, 
 214, 723 
 ... 300 
 ... 162 
 ... 630 
 ... 849 
 ... 849 
 ... 849 
 ... 849 
 ... 381 
 7, 649, 712 
 ... 563 
 ... 416 
 ... 235 
 ... 707 
 53, 933 
 ... 113 
 288, 820 
 ... 582 
 ... 524 
 ... 653 
 ... 828 
 
Table of Cases. 
 
 xlr 
 
 PACE 
 
 R. 0. Harris, 7 C. & P. 416 569 
 
 - 7 C. & P. 416, 429 ... 566, 608 
 """"■"" ... 666 
 
 ... 665 
 ... 297 
 ... 224 
 ... 820 
 ... 452 
 ... 509 
 ... 452 
 ... 745 
 ... 491 
 ... 232 
 ... 599 
 ... 582 
 ... 3 
 
 . 110 
 
 ■ 7 C. & P. 429 
 - 7 C. & P. 446 
 
 7 C. & P. 581 
 
 1 Cox, 106 
 
 8 D. & R. 578 
 
 Dears. 344 
 
 4 F. & F. 342 
 
 23 L. J., M. C 
 
 1 Leach, 165 
 
 2 Leach, 701 
 
 1 Mood. C. C. 338 
 
 — : 1 Mood. C. C. 393 
 
 2 Mood. C. C. 267 
 
 4 T. R. 202 
 
 4 T. R. 205 
 
 - Harrison, 2 East, P. C. 926 
 
 1 Leach, 47 ... 
 
 1 Leach, 180 ... 
 
 2 Rol. Rep. 38 
 
 2St. Tr. 314 ... 
 
 4 St. Tr. 492 ... 
 
 6 T. R. 60 
 
 - Harrod, 2 C. 8: K. 294 ... 
 
 - Hart, 2 East, P. C. 977 
 1 Leach, 145 ... 
 
 ) St. Tr. 1344 
 
 - Hart (Minter), 6 C. 8r P. 106 .. 
 
 7 C. & P. 652 ., 
 
 - 1 Mood. C.C. 486 
 
 Hartall, 7 C. & P. 475 
 
 Hartel, 7 C. & P. 773 ... 
 
 Hartley, R. 8! R. 139 ... 
 
 Harvey, 2 B. 8: C. 257 ... 
 
 2 B. 8t C. 261 ... 
 
 4 Cox, 441 
 
 9 C. & P. 353 ... 
 
 3 D. & R. 464 ... 
 
 2 East, P. C. 669 ... 
 
 1 Leach, 467 
 
 R. 8c R. 227 
 
 Harwood, 11 Cox, 388 ... 
 
 Haslam, I Den. 73 
 
 1 Leach, 418 ... 
 
 Haslemere, 3 B. Sr S. 313 
 
 32 L. J., M. C. 30 
 
 Hassall, 2 C. & P. 434 ... 
 
 Hassell, 5 Dowl. 531 
 
 30 L. J., M. C. 175 
 
 L. & C. 58 
 
 Hastings, 7 C. S P. 152 ... 
 
 Haswell, 1 Doug. 387 ... 
 
 R. Se R. 458 
 
 Hataeld, 4 A. 8c E. 156 „. 
 
 - 4 B. Sc Aid. 75 
 
 . 588 
 
 , 341 
 
 „. 588 
 
 ... 66 
 
 ... 722 
 
 ... 251 
 
 ... 114 
 
 ... 138 
 
 . 205, 565 
 
 55, 205, 565 
 
 ... 813 
 
 372 
 
 563 
 
 563 
 
 ... 71 
 
 ... 159 
 
 446, 447 
 
 110,768 
 
 ... 567 
 
 ... 250 
 
 ... 342 
 
 no, 768 
 
 332, 349 
 
 332, 349 
 
 ... 588 
 
 ... 438 
 
 ... 615 
 
 272, 435 
 
 ... 904 
 
 ... 904 
 ... 24 
 ... 102 
 ... 341 
 ... 341 
 ... 272 
 110,113 
 ... 799 
 „. 906 
 „. 915 
 ... 511 
 ... 547 
 ... 910 
 ... 910 
 ... 103 
 ... 884 
 ... 579 
 267, 567 
 267, 567 
 10,950 
 ... 451 
 ... 497 
 ... 494 
 ... 90 
 
 Haworth, 4 C. & P. 254 229 
 
 Greenw. Coll. Stat. 137. . 229 
 
 Havftin, 7 C. 8: P. 281 453 
 
 Hay, 2 F. Si F. 4 277 
 
 Haydon, 7 C. 8i P. 445 347 
 
 Hayes, 2 M. & Rob. 155...69, 161, 437 
 
 2 Str. 844 165 
 
 Hayman, Moo. & M. 401 ... 910, 91 3 
 
 - Hanghton, 5 C. «! P. 555 
 
 5 C. 8c P. 559 ... 
 
 1 E. «c B 501 ... 
 
 22 L. J., M. C. 8£ 
 
 - Hawdon, 11 A. & E. 143... 
 
 - Hawes, 1 Den. 270 
 
 - Hawkes, 2 Mood. C. C. 60 
 
 - Hawkeswood, 1 Leach, ^57 
 2 T. R. 606... 
 
 - Hankins, 3 C. Sc P. 392... 
 
 1 Den. 584 ... 
 
 2 East, P. C. 485 
 
 Post. 38 
 
 • M'CL & Y. 27 
 
 PAGE 
 
 42, 323 
 
 . 42, 318, 
 
 323 
 
 ... 187 
 
 ... 47 
 
 ... 344 
 
 ... 276 
 
 222 634 
 
 Haywood, 2 East, P. C. 1076 ...' 547 
 
 R. r. Hayne, 12 Co. US 
 2 East, P. C. 652 . 
 
 Haynes, Ry. & M. 298 ... 
 
 - 4 M. & Selw. 214 
 
 Hayward, 1 C. 8: K. 508 ... 
 
 2 C. Sc K. 234... 
 
 6C. SeP. 157 
 
 -R. 8c R. 16 
 
 - Hazel, 1 Leach, 382 
 
 - Hazy, 2 C. 8c P. 458 
 -Head,l F. ScF. 350 
 
 - Headge, 2 Leach, 1033 
 - R. Sc a. 160 
 
 547 
 ... 165 
 ... 210 
 ... 319 
 ... 451 
 ... 451 
 42, 323 
 5, 91, 92 
 
 - Healey, 1 Mood. C. C. 1 ., 
 -Heane, 4 B. Sc S. 947 .. 
 
 33 L. J., M. C. 1 15...5, 91, 92 
 
 • Heanor, 14 L. J., M. C. 38 ... 904 
 6 Q. B. 745 904 
 
 - Heam, C. 8c Mar. 109 ... 224, 283 
 
 ■ Heaton, 3 F. Sc F. 819 888 
 
 ■ Heath, 2 Mood. C. C. 33... 343, 371, 373 
 
 •R. ScR. 184 
 
 Heber, 2Str. 915 
 
 Hedges, 3 C. Sc P. 410 ... 
 
 Heming, 5 B. Sc Ad. 666... 
 
 2 East, P. C. 1116 
 
 3 L. J., M. C. 
 
 Hemmings, 4 F. Sc F. 50. 
 
 Hempstead, R. «t R. 344. ..68, 106, 212 
 
 2, 758 
 ,. 113 
 . 751 
 .. 113 
 . 423 
 . 113 
 .. 325 
 
 - Hench, R. & R. 
 
 - Henderson, C. SC Mar. 328 
 - 2 Mood. C. C. 
 
 - Hendon, 4 B. 8c Ad. 628 
 2 L. J., M. C. 55 
 
 - Hensey, 1 Burr 642 
 
 - Henshaw, L. Sc C. 444 . 
 33 L. J., M. C. 132 
 
 - Henson, Dears. 24 
 
 - Herbert, 2 Ld. Ken. 466 
 -Herford, 3 E. 8c E. 115 ... 
 29 L. J., Q. B. 249 
 
 - Heyey, 2 East, P. C. 856 
 
 - 2 East, P. C. 858 
 
 1 Leach, 229 
 
 Hewett, C. Sc M. 534 
 
 Hewgill, Dears. 315 
 
 Hewins, 9 0. Sc P. 786 
 
 Hewitt, 4 F. Sc F. 1101 
 
 R. & R. 158 
 
 Hewlett, 1 F. Si F. 91 
 
 Hey, 2 C. Sc K. 983 
 
 1 Den. 602 
 
 Heydon, 3 Burr. 1270 
 
 1 W. Bl. 351 
 
 339 
 
 132, 474 
 
 2... 474 
 
 ... 915 
 
 ... 915 
 
 723, 728 
 
 .. 478 
 
 ... 478 
 
 .. 890 
 
 .. 112 
 
 .. 116 
 
 .. 116 
 
 .. 563 
 
 938 
 
 563 
 
 225 
 
 480 
 
 ... 204, 206 
 
 714 
 
 91, 124 
 
 666 
 
 ... 343, 347 
 184, 343, 347 
 
 114 
 
 261 
 
 Heyteshnry, 8 L. T., N. S. 315 ... 904 
 Heywood, 2 0. Sc K. 352 ... 598 
 
 L. Sc C. 451 ... 69,70 
 
 33 L. 3., M. C. 133...69, 70 
 
 Hibbert, 38 L. J., M. C. 61 
 
 L. R., 1 C. C. R. 184 
 
 Hicklin, 37 L. J., M. C. 89 
 
 L. R., 3 a. B. 360 
 
 Hickman, 1 Leach, 278 ... 
 
 - 1 Mood. C. C. 34 
 
 Hicks, 2 M. Sc Rob. 
 
 Higgins, 2 Burr. 1232 
 
 3 C. Sc P. 603 ... 
 
 4 C. Sc P. 247 ... 
 
 5 Dowl. 375 
 
 2 East, 5 
 
 6 L. J., M. C. 9 ... 
 
 1 Vent. 366 
 
 Higginson, 1 C. Sc K. 129 
 
 Higgs, 2C. ( - 
 
 -, 10 Cox, 527... 
 
 - Higley, 4 C. Sc P. ! 
 
 701 
 701 
 ... 778 
 ... 778 
 ... 414 
 ... 415 
 ... 39 
 ... 65 
 ... 234 
 ... 832 
 ... 103 
 51,955 
 ... 103 
 ... 161 
 ... 19 
 ... 493 
 ... 927 
 ... 715 
 
xM 
 
 Table of Cases. 
 
 R. V. Hubert, 38 L. J., M. C. 61 
 
 Hill, 1 C. & K. 168 
 
 8C. &P.2H 
 
 2 Den. 255 
 
 1 East, P. C. 439 ... 
 
 — • iOlj. J., M. C. 222... 
 
 2 Mood. C. C. 30 ... 
 
 2 M. 8l Roi. 458 ... 
 
 R. & R. 190 
 
 2 Russ. 310 
 
 2 Str. 790 
 
 ■ Hillman, L. & C. 34S ... 
 
 33 L. J., M. C. 60 
 
 - Hills, 2 E. 8! B. 1?6 
 I L. J., Q. B. 322... 
 
 - HUton, Bell, 24 ... ^ ... 
 28 L. J., M. C. 28 
 
 - Hind, Bell, 253 
 
 29L.J., M.C. 147.. 
 
 - R. & R. 253 
 
 faq£ 
 ... 701 
 
 ... 875 
 
 209, 238, 
 
 563,570 
 
 ... 270 
 
 ... 706 
 
 ... 270 
 
 209,238 
 
 ... 400 
 
 212, 480 
 
 ... 480 
 
 ... 778 
 
 ... 713 
 
 ... 713 
 
 ... 103 
 
 ... 103 
 
 ... 184 
 
 184, 962, 
 
 964 
 
 ... 222 
 
 ... 222 
 
 - Hlnks, 2 C. 8i K. 462 
 1 Den. 84 
 
 ... 274 
 
 ... 274 
 
 36, 70, 315 
 
 ... 341 
 
 667 
 
 35 
 
 22 
 
 .. 362, 368, 
 
 390 549 552 
 
 Hodgkiss, 7 C. 8: P. 298 ... ' 218) 300 
 
 39 L. J., M. C. 14 ... 53, 
 
 213,813, 814 
 
 L. R., 1 C. C. R. 212... 63, 
 
 213, 813, 814 
 
 Hinley, 2 M. Si Rob. 524 
 
 Hoare, IF. 8i F. 647 
 
 Hoatson, 2 C. & K. 777 
 
 Hobson, R. & R. 56 
 
 Hodges, 8 C. & P. 195 , 
 
 Moo. St M. 341 
 
 - Hodgson, 3 C. & P. 422 
 
 Dears. 14 .. 
 
 Dears. & B. 3 . 
 
 7 Exch. 915 ., 
 
 1 Leach, 6 
 
 25 L. J., M. C. 
 
 445, 453 
 
 98 
 
 56?', 600 
 
 ... 98 
 
 9, 949 
 
 1 ... 567, 
 
 600 
 
 217, 706 
 
 1,624 
 
 R. & R. 211 
 
 -Hogan, 2 Den. 277... 
 
 20 L. J. M. C. 219 ... 624 
 
 - Hogg, 2 M. & Rob. 380 ...39,171,621 
 ■ Hoggins, R. & R. 145 ... 447, 451 
 
 - Holehester, 10 Cox, 226 ... • ... 160 
 
 - Holden, 5 B. & Ad. 347 ... 96, 97 
 ------ 27,297 
 
 ... 76 
 96,97 
 
 • 8 C. & P. 
 
 8 C. Si P. 610 
 
 2 Nev. & M. 167 
 
 R. Si R. 154 ... 661, 567, 674 
 
 2 Taunt. 334 ... 561, 574 
 
 - Holding, Old Bailey, June, 1821 . 279 
 
 - Holland, 10 Cox, 478 709 
 
 2 M. Si Rob. 351 ...622, 625 
 
 ... Ill 
 
 109, 129 
 ... 47 
 54 
 180 
 210 
 326 
 327 
 78 
 
 1 T. R. 692 
 
 4 T. R. 457 
 
 5 T. R. 607 
 
 5T. R.623 
 
 - HoUingbury, 4 B. 8l C. 329 
 ■ 4 B. Si 0. 330 
 
 HoUoway, 2 C. 8i K. 942 .., 
 
 5 C. Si P. 524 
 
 9 C. Si P. 43 
 
 . 1 Den. S70 ... 326, 328 
 
 18 L. J., M. C. 60...326, 328 
 
 Holmes, 1 C. 8l K. 247 226 
 
 Dears. 207 ... 67, 890, 920, 921 
 
 22 L. J., M. C. 122...890, 920, 
 
 921 
 
 Holroyd, 2 M. Si Rob. 339 ... 544 
 
 Holt, Bell, 280 ... 215, 217, 483 
 
 7 C. Si P. 518 ■.. 653, 666 
 
 ■ 2 Lescli, 693 ... 62, 212 
 
 30 L. J.,M. C. n...215,2ir,483 
 
 R. V. Holt, 6 Mod. 81 ... 
 
 5 T. R. 436... 
 
 5 T R 446 
 
 Hood, 1 Mood. C.C. 281 
 
 263 
 
 180,261, 772 
 ... 212, 243 
 640 
 
 Hook, Dears. & B. 606 
 
 27Ii. J., M.C. 222... 288,822 
 
 Hooper, 1 Chit. R. 491 99 
 
 Hoost, 2 East, P. C. 950 566 
 
 Hope, 7 C.& P. 136 231 
 
 1 Mood. C. C. 414 688 
 
 1 M. Si Rob. 39^, n. ... 231 
 
 Hopkins, C. tc Mar. 254 701 
 
 SCSI P. 691 621 
 
 Hopley, 2 F. Si F. 202 63t 
 
 Hornby, 1 C. 8i K. 305 344 
 
 Home, Cowp. 672 767 
 
 Cowp. 676 63 
 
 Homer, 2 East, P. C. 703 ... 414 
 
 1 Leach, 270 336 
 
 — - Hornsea, Dears. 291 ... 185, 907 
 
 '■ 23 L. J., M. C. 59, 62, n.( 1 ) 
 
 186, 907 
 
 Horwell, 6 C. St P. 148 ... 
 
 - 1 Mood. C. C. 405 
 
 - Hough, R. Si R. 120 
 
 - Houghton, 1 E. St B. 501 . 
 
 - Houlton, 1 Jebb, C. C. 24 
 
 - Houusell, 2 M. St Rob. 29 
 
 - Houseman, 8 C. 8i P. 180 
 
 - How, 1 Str. 699 
 
 - Howard, Fost. 77, 78 
 ■ 1 M. St Rob. 187 
 
 - Howarth, 1 Mood. C. C. 207 
 
 3 Stark. S 
 
 - Howe, 7 C. St P. 268 
 
 - Howell, 1 C. St K. 689 
 9 C. St P. 437 
 
 1 Den. 1 ... 
 
 2 Den. 362, n. 
 
 4 F. St F. 160 
 
 Howes, 7 A. Si E. 60, n. 
 
 6 C, St P. 404 
 
 3 N. St M. 462 
 
 Howie, II Cox, 320 ... 
 
 Howley, L. St C. 159 
 
 Hube, Peake, 132 ... 
 
 5 T. R. 642 . 
 
 f)59 
 
 659 
 
 216, 570 
 
 ... 907 
 
 ... 275 
 
 ... 714 
 
 ... 561 
 
 ... 57 
 
 ... 400 
 
 ... 245 
 
 ... 642, 
 
 645, 666 
 
 62 
 
 424 
 
 222 
 
 ...8,524,625, 
 948 
 
 in 
 
 319 
 
 938 
 
 193 
 
 227 
 
 193 
 679, 682, 686 
 
 588 
 
 932 
 
 ... 931,932 
 . 221 
 
 - Hucks, 1 Stark. 523 
 
 - Hudson, Bell, 263 ...470, 482, 922, 939 
 
 1 F. St F. 66 821 
 
 29 L. J., M. C. 146...470, 482, 
 
 922, 939 
 
 - Huggins, 2 Ld. Raym. 1585 ...165 
 
 - Hughes, Bell, 242 13, 69, 435 
 
 1 C. St K. 235 154 
 
 1 C. St K. 619 ... 76, 815 
 
 1 C. Si K. 520, n. (6) ... 823 
 
 C. «S Mar. 593 ... 
 
 2 C. St P. 420 ... 
 
 ■ 4 C. St P. 373 ... 
 
 5 C. St P. 126 ... 
 
 9 C. St P. 762 ... 
 
 Dears. &B. 188 ... 
 
 Dears. St B. 248 ... 
 
 2 East, P. C. 1332 
 
 1 F. St F. 356 ... 
 
 1 Leach, 406 
 
 26 L. 3., M. C. 202 
 
 29 L. J., M. C. 71 . 
 
 1 Mood. C. C. 370 
 
 2 Mood. C. C. 190 
 
 1 Russ. 21 , 
 
 Hughill, 2 Russ. 225 ... 
 
 Hull, 2 F. Si F. 16 
 
 Humphreys, C. & Mar. 601 
 
 42, 323 
 ... 547 
 ... 842 
 
 622, 652 
 ... 707 
 ... 816 
 
 623, 638 
 ... 663 
 ... 472 
 ... 499 
 ... 623-; 
 
 63S 
 , 69, 435 
 ... 448 
 ... 707 
 ... 22 
 ... 407 
 74, 929 
 ... 78 
 
Table of Cases. 
 
 xlvii 
 
 R. V. Hundsdon, 2 East, P. C. 611 
 
 Hunt, 3 B. & Aid. 444 ... 
 
 3 B. & Aid. 666 
 
 2 Camp. 583... 
 
 1 C. & P. 642 
 
 1 Mood. C. C. 93 
 
 PAGE 
 .. 390 
 
 - Hunter, 3 C. & P. 591 
 
 3 C. & P. 592 
 
 4C. SlP. 128 ... 
 
 10 Cox, 642, 648... 
 
 — 2 East, P. C. 928... 
 
 i Leach, 624 
 
 2 Leach, 631 
 
 -R. S K.511 
 
 ... 214, 220 
 210,211,771 
 
 449 
 
 ... 635, 642, 
 
 650, 696 
 
 ..93, 290, 292 
 
 264 
 
 Huntley, Bell, 238 
 
 29 L. J., M. C. 70 
 
 Hurse, 2 M. & Rob. 360 ... 
 
 Hutchinson, 2 B. & C. 608, n 
 
 Bull, N. P. 245 
 
 9 Cox, 655 ... 
 
 1 Leach, 135 
 
 - 1 Leach, 342 
 
 ... 476 
 62, 560 
 62, 560 
 ... 55 
 ... 560 
 ... 435 
 ... 435 
 ... 754 
 , ... 222 
 ... 131 
 
 ... ur 
 
 ... 131 
 
 867 
 
 -R.8IR.412...42, 322,396 
 
 -2RUSS.158... 
 ■ Huxley, C. & Mar. 596 ... 
 -Hyams, 7C. &P. 411 ... 
 - Hyman, 2 East, P. C. 782 
 ■Illidge, 2C. K K. 871 ... 
 - 1 Den. 404 
 
 42 
 ... 420 
 ... 497 
 ... 441 
 ... 586 
 ... 586 
 
 ... loa 
 
 ... 561 
 ... 561 
 - Ingham, 6 B. & S. 257... 116, 118, 120 
 
 19L. J., M. C. 69 ...813 
 
 33 L. J., Q. B. 183 ... J16, 
 
 118, 120 
 
 14Q. B. 396 813 
 
 Ingram, 1 Salk. 384 23 
 
 Inhabitants of Brampton, 10 
 
 East, 282 884 
 
 Cumberland, 6 T. 
 
 - Incledon, 1 M. & Scl. 268 
 
 - Inder, 2 C. & K. 635 
 1 Den. 325 ... 
 
 -3Bos. 
 
 761 
 
 B. &C. 71 
 
 & B. 794 
 
 - Denton, Dears. 3 170 
 
 21 L. J., 
 
 170 
 
 18 Q. B. 
 
 170 
 
 - Ditcheat, 9 B. & C. 
 492 
 
 - Great Bolton, 8 
 492 
 
 - Hamworth, 2 Str. 
 96 
 
 - Huddersfield, 7 E. 
 260 
 
 26 L. 
 
 J., M. C. 169 250 
 
 Macclesfield, 2 B. 
 
 & Ad. 870 492 
 
 NorthCoUingham, 
 
 JB. 8sC. 578 492 
 
 Pembridge, C. & 
 
 Mar. 157 260 
 
 12 L. 
 
 J., a. B. 47 150 
 
 3 a. 
 
 B. 901 150 
 
 St. Mawgan in 
 
 Meneage, 8 A. 8c E. 496 170 
 
 7 L. J., 
 
 M. C. 98 170 
 
 ■ Taunton, 3 M. 8: 
 
 Sel. 465 102 
 
 Tibshelf, 1 B. Si 
 
 Ad. 190 885 
 
 R. V. Inhabitants of Wroxton, 4 B 
 Ad. 640 
 
 West Riding, 
 
 East, 352, n 
 
 Ion, 2 Den. 475 
 
 - 21 L. J , M. 
 
 • Ipstones, 37 L. J., M. C. 37 
 -L. R, 8Q. B. 216 
 
 - Isaac, 2 East, P. C. 1031... 
 
 - Isaacs, L. & C. 220 
 32 L. J., M. C. 52 .. 
 
 - Isherwood, 2 Ld, Ken. 202 
 
 - Isle of Ely, 19 L. J., M. C. 223 
 
 - Jackson, 3 Camp. 370 ... 
 
 1 C. & K. 384 .. 
 
 9 Cox, 505 
 
 1 Leach, 269 ... 
 
 1 Mood. C. C. 119 
 
 2 Mood. C C. 32 
 
 —- R. Si R. 487 ... 
 
 IT. R. 653 
 
 -Jacob, 1 Leach, 309 
 
 - Jacobs, 2 Mood. C. C. 140 
 R. &R. 231 
 
 - 1 Russ. 698 
 
 PAGE 
 & 
 
 .. 885 
 2 
 
 .. 179 
 569, 754 
 569, 754 
 ... 905 
 ... 905 
 ... 508 
 ... 713 
 ... 713 
 ... 110 
 . 916 
 . 476 
 ... 453 
 ... 341 
 401, 422 
 ... 333 
 ... 342 
 ... 705 
 ... Ill 
 ... 232 
 
 - James, 1 C. & K. 530 
 
 3 C. 81 K. 167 
 
 5 C. & P. 153 
 
 7 C. & P. 153 
 
 7 C. & P. 653 
 
 8C. & P. 131 
 
 8 C. & P. 292 
 
 Carth. 220 
 
 2 Den. 1 
 
 Holt, 284 
 
 19 L. J., M. C. 179 
 
 R. 8iR. 17 
 
 2 Rusa. 12 
 
 1 Show. 397 
 
 - Jarrald, L. & C. 301 
 32 L. J., M. C. 258 
 
 - Jarvis, Dears. 552 
 
 1 East, 643 
 
 25 L. J., M. C. 30 ... 
 
 37 L. J., M. C. 1 ... 
 
 — L. R., 1 C. C. R. 96 
 
 1 Mood. C. C. 7 ... 
 
 2 M. St Rob. 40 , 
 
 Pearce & D. 552 
 
 - Jeans, 1 0. & K. 539 
 
 - Jeffs, 2 Burr. 984 ... 
 Post. 24 
 
 - 2 Hale, 295 
 
 ... 717 
 ... 717 
 
 653, 667 
 ... 885 
 ... 846 
 ... 568 
 43, 66, 559 
 ... 631 
 ... 586 
 ... 219 
 ... 885 
 ... 219 
 ... 885 
 ... 885 
 ... 331 
 
 219, 245 
 50, 502 
 60, 502 
 ... 768 
 ... 62 
 ... 758 
 
 . 494 
 14,273,957 
 ... 236 
 ... 647 
 ... 169 . 
 ... 169 
 
 Jelly, 10 Cox, 553 
 
 Jellyman, 8 C. Si P. 604 .. 
 
 • Jemot, Old Bailey, 28th Feb. 1812 
 
 MS ; 
 
 ■ Jenkins, 38 L. J., M. C. 82 
 
 L. R., 1 C. C. R. 187 ... 
 
 R. Sc R. 224 
 
 . R. &R. 492 
 
 Jenks, 2 East, P. C. 514 
 
 162 
 717 
 
 428 
 
 222 
 
 222 
 
 493 
 
 ... 231 
 
 202, 499 
 
 ... 64 
 
 ... 64 
 
 ... 665 
 
 ... 134 
 
 ... 134 
 
 478 
 
 478 
 
 Jenson, 1 Mood. C. C. 434 ... 446 
 
 Jepson, 2 East. P. C. 1115 ...423, 854 
 
 - Jenner, 7 Mod. 400 
 2 Burr. 983 
 
 - Jennings, 2 Lewin, 130 ... 
 
 R. 8! R. 388 ... 
 
 1 Stark. 311 ... 
 
 - Jennison, L. & C. 167 
 -31 L. J., M. C. 146 
 
 - Jervis, « C. 8c P. 156 
 
 - Jessop, Dears. & B. 442 . 
 
 -27L J., M. C.70 
 
 - Jewell, 7 E. 8c B. 140 
 
 "3L. J.,e. B. 177.. 
 
 - Jeyes, 3 A. 8c E. 416 
 1 Chit. Rep. 650 
 
 . 434 
 . 482 
 ... 4!l2 
 98, 102 
 98, 102 
 ... 294 
 ... 294 
 
xlviii 
 
 Table of Cases. 
 
 PAGE 
 
 K. V. Jobling, R. & R. 526 494 
 
 John, 1 East, P. C. 357 ... 221, 275 
 
 1 East, P. C. 358, 360 ...221 
 
 - 7 C. & P. 324 
 
 232 
 
 8, 498, 948 
 
 , 221, 253 
 
 ... 251 
 
 . Johnson, C. & Mar. 218 
 
 2 C. & K. 355 .. 
 
 2 C. & K. 394 ... 
 
 2 Den. 310 336 
 
 Dears. & B. 340 ... 40 
 
 2 E. & E. 613 179 
 
 2 East, P. C. 488 ... 498 
 
 6 East, 583 124 
 
 7 East, 65 ...36, 770, 771 
 
 I5Ir.Com.LawR.60... 227 
 
 L. SlC. 632 ... 658,710 
 
 L. &C. 489 346 
 
 21 L. J, M. C. 32 ... 336 
 
 29 L. J., M. C. 133 . 179 
 
 34L. J., M.C. 24 ...346 
 
 . 34 L. J., M. C. 192.658, 710 
 
 ... 253 
 ... 3 
 56, 72 
 ... 293 
 ... 474 
 48,65 
 ... 109 
 ... 91 
 ... 212 
 ... 110 
 
 4T.R. 285 93,111 
 
 52, 212 
 ... 875 
 ... 72 
 ... 530 
 ... 622 
 ... 30 
 328, 383 
 ... 425 
 ... 808 
 ... 342 
 
 Metcalfe, MS. 
 
 3 M. & S. 556 ... 
 
 3M. &Sel. 639 ., 
 
 1 Mood. C. C. 173 
 
 2 Mood. C. C. 254 
 
 2 Rol. Rep. 226 . 
 
 1 Sir. 644 
 
 1 Wils. 325 ... 
 
 - Johnstone, R. & R. 10 ... 
 -Joliife, 1 East, 154, n. ... 
 
 -Jones, 2 B. 8c Ad. 611 
 
 — 4B. & Ad. 345 
 
 2 Camp. 131 
 
 1 C. 8t K. 181 
 
 1 C. & K. 243 
 
 2 C. & K. 165 
 
 2 C. & K. 236 
 
 2C. &K.398 
 
 2C. & K.52t 
 
 C. S Mar. 611 
 
 C. & Mar. 614 
 
 2 C. & P. 620 
 
 4C. 8t P. 217 
 
 7 C. & P. 167 
 
 — 7 C. & P. 833 
 
 8 C. & P. 288 
 
 8 C. 8c P. 776 
 
 9 C. & P. 258 
 
 9C. 8c P. 401 
 
 11 Cox, 393... 
 
 Dears. & B. 555 ., 
 
 1 Den. 101 
 
 1 Den. 166 
 
 1 Den. 188 
 
 1 Den. 218 
 
 1 Den. 551 
 
 1 Doug. 300 
 
 9 Dowl. 505 
 
 2 East, P. C. 499 .. 
 
 2 East, P. C. 714 .. 
 
 2 Har. 8c W. 293 .. 
 
 Kel. 37 
 
 2 L. J., M. C. 7 .. 
 
 19 L. J., M. C. 162 
 
 27 L. J., M. C. 171 
 
 1 Leach, 53 .. 
 
 1 Leach, 102 
 
 1 Leach, 139 
 
 1 Leach, 204 
 
 • 1 Leach, 537 
 
 2 Mood, C. C. 94 .. 
 
 2 Mood. C. C. 171 .. 
 
 2Mood. C.C. 308.. 
 
 7 Mood. C. C. 293 .. 
 
 Peake, 37 
 
 R. te R. 152 
 
 2Str. 704 
 
 234 
 
 402 
 
 295 
 
 453 
 
 454 
 
 70 
 
 652 
 
 294 
 
 430, 431, 432 
 
 370 
 
 30 
 
 276 
 
 ... 328, 383 
 
 425 
 
 ... 472, 479 
 57, 205 
 
 100 
 
 491 
 
 414 
 
 96 
 
 24 
 
 875 
 
 , 472, 479 
 ... 370 
 ... 586 
 17, 141 
 ... 414 
 ... 566 
 ... 495 
 ... 70 
 ... 294 
 ... 611 
 ... 530 
 ... 821 
 ... 224 
 ... 114 
 
 R. V. Jones, 2 Str. 1146 
 
 Jones (Lloyd) 8 C. Sc P. 288 
 
 Jordan, 7 C. & P. 432 
 
 -9C.se P. 118 
 
 - Josephs, 8 Dowl. 12 
 
 - Jowie, 5 A. 8cE. 639 ... 
 -Joyce, 3 C. 8c P. 411 
 
 Car. Sup. 184 
 
 L. ScC. 576 
 
 . 34 L. J., M. C. 168 
 
 - Judd, 2 T. R. 255 
 
 - Jukes, 8 T. R. 536 
 
 - Jussup, Dears. 619 
 
 - Justs, of Gloucestershire, 
 c £. 689 
 
 PAGE 
 ... 2 
 
 454 
 490, 500 
 17,161,705 
 ... 96 
 ... 96 
 ... 761 
 ... 751 
 ... 585 
 ... 685 
 ... 609 
 ... 60 
 ... 479 
 4 A. 
 ... 25 
 
 -Kent, U East, 229 ... 117 
 Middlesex, 6 B. Sc Ad. 
 
 1113 37,134 
 
 3 L. J., M. 
 
 C. 32 ... 134 
 
 Newcastle-upon-Tyne, 
 
 1 B. 8c Ad. 933 920 
 
 Surrey, 1 Bail C. C. 70 904 
 
 ^- 21 L. J., M. C. 
 
 195 904 
 
 Kay, Dears. & B. 231 338 
 
 -26L. J., M. C. 119 ... 
 
 39 L. J , M. ens ... 
 
 L. R., 1 C. C. R. 257 
 
 - Kealey, 2 Den. 68 
 
 20 L. J., M. C. 57 
 
 ■Keena, 37L.J.,M.C.43... 
 
 ... 581 
 ... 581 
 43, 478 
 ... 478 
 445, 450 
 -L. R., ice. R. 113. 445, 450 
 
 - Keite, 1 Ld. Uaym. 142 ... 
 
 - Keith, Dears. 486 
 
 -24L. J., M. C. 110 
 
 ■ Kelly, 2 C. 8c K. 379 
 
 2C. ScK. 814 
 
 1 Mood. C. C. 113 ... 
 
 R. Si R. 421 
 
 . 1 Russ. 27 
 
 165 
 ... 608 
 ... 608 
 
 8, M9 
 ... 632 
 ... 622 
 
 8,948 
 
 - Kendrick, 7 C. 8c P. 184 926 
 
 - Kenealy, 4 Cox, C. C. 345 ... 103 
 
 - Kenrick, 1 Dav. d M. 208 ...65,.473, 
 
 939, 940 
 
 12 L. J., M. C. 135...939, 940 
 
 5 a. B. 49 ... 55, 473, 939, 940 
 
 -Kerr, 8 C. 8c P. 176 ... 227,330 
 
 - Kerrigan, L. 8c C. 383 ... 
 - 33 L. J., M. C. 71 
 
 478 
 ... 478 
 ... 629 
 ... 315 
 
 103 
 
 Kessal, 1 C. «c P. 437 
 
 Kettle, 3 Chitt. Cr. Law, 947 
 
 Kettlewonh, 5 T. R. 33 ... 
 
 Key, 2 Den. 347 ... 143,158,964 
 
 21 L. J., M. C. 35... 143, 158, 964 
 
 Kilham, 39 L. J., M. C. 109 ... 479 
 
 L. R., 1 C. C. R. 261 ... 479 
 
 Kilminster, 7 C. 8c P. 228... 75, 928 
 
 King, 6 C. Sc P. 123 565 
 
 4 F. Sc F. 493 41 
 
 7 e. B. 782 166 
 
 R. Si R. 332 ... 8, 948 
 
 2 Str. 1268 91 
 
 Kingston. 4 C. 8c P. 387 224 
 
 (Duchessof)Cowp.283. 97 
 
 8 East, 41 ... 68, 72, 835 
 
 8 East, 46 
 
 - Kinnear, 2 B. 8c Aid. 462 
 • 2M. 8c Rob. 117 
 
 72 
 
 62 
 
 ... 578 
 
 941, 942 
 
 ... 702 
 
 634 
 
 Kinnersley, 1 Str. 193 
 
 Kipps, 4Cox, 167... 
 
 Kirkham, 3 C. SS P. 115 ... 
 
 Kirkwood, 1 Mood. C. C. 304 ... 8, 
 
 663, 949 
 
 1 Mood. C. C. 311 ... 565 
 
 Kitchen, R. Sc R. 95 652 
 
 Kitson, Dears. 187 ... 220,512 
 
 22 L. J., M. C. 118...220, 512 
 
Table of Cases. 
 
 xlix 
 
 PAGE 
 
 R. V. KnatchbuU, 1 Salk. 150 
 
 Knewland, 2 East, P. C. 732. 
 
 - 2 Leach, 721 ... 
 
 -Knight, 1 C. & P. 116 
 
 2 East, P. C. 510 
 
 ■ 1 Salk. 375 
 
 - Knights, 2 F. 8c F. 46 . 
 -Knill,5B. &Ald. 292,B.., 
 
 - Kohn, 4 F. & F. 68 
 
 - Koops, 6 A. 8c E. 193 . 
 -Lake, 11 Cox, 333... 
 
 - 3 Leon. 268 .. 
 
 - Lamb, 2 East, P. C. 665 . 
 - 2 Leach, 582 
 
 - Lambe, 2 Leach, 554 
 
 - Lambert, 2 Cox, 309 
 2 Camp. 398 
 
 - 2 Camp. 400 
 
 ,340, 415 
 340, 415 
 ... 24 
 ... 499 
 ... 114 
 ... 625 
 288, 822 
 29, 941 
 ... 812 
 ... 613 
 ... 53 
 ... 331 
 ... 232 
 ... 233 
 ... 454 
 217, 768 
 ... 772 
 
 Lamplew, 3 F.'Sc F. 520 624 
 
 Lancashire, 2 B. & Ad. 813 ... 916 
 IL. J., M. C. 3 ...916 
 
 - Lands, Dears. 567 247, 875 
 
 25 L. J., M. C. 14 ... 247, 875 
 
 - Landulph, 1 M. 8c Rob. 393 .. 904 
 
 - Lane, 6 Mod. 128 66 
 
 - Langbridge, 2 C. 8c K. 975 ... 253 
 
 -1 Den. 448 253 
 
 • IS L. J., M. C. 198... 253 
 
 525, 842 
 ... 93 
 
 904 
 
 858 
 
 439 
 413, 417, 419 
 
 476 
 
 185, 207 
 
 Langford, C. 8: Mar. 602., 
 
 . Langhurst, 10 Cox, 353 
 
 . Langley, 2 F. 8c F. 170 
 
 6 Mod. 125 
 
 Langmead, L. 8c C. 427 
 
 • Lapier, 1 Leach, 320 .. 
 
 Lara, 6 T. R. 565 ... 
 
 Larkin, Dears. 365 
 
 -23L. J., M. C. 125... 185, 207 
 
 - Latimer, 16 a. B. 1077 
 -Laugher, 2 C. 8c K. 225 
 
 - Lavender, 2 Russ. 160 
 
 - Lavey, 3 C. 8c K. 26 
 1 East, P. C. 166 
 
 1 Leach, 153 
 
 - Lawcs, 1 C. 8c K. 62 
 
 - Lawley, 2 Str. 904 
 
 - Lawrence, 4 C. 8c P. 231 ... 
 3 Cowp. 78 
 
 -4F. 8cF. 901 ... 
 
 Lavcock, 4 C. Sc P. 326 
 
 Laver, & Mod. 82, 89 
 
 8 Mod. 86 
 
 8 Mod. 93 
 
 4 St. Tr. 229, 332 ... 
 
 6 St. Tr. 229, 282, 284 
 
 6 St. Tr. 272, 280 ... 
 
 6 St. Tr. 328 
 
 16 St. Tr. 21 5 
 
 Layton, Cro. Car. 584 
 
 Lea, 2 Mood. C. C. 9 
 
 Leach, Dears. 642 
 
 25 L. J., M. C. 77 
 
 -3 Stark. N. P. 70 
 
 ... 857 
 ... 225 
 ... 343 
 
 817,818 
 ... 747 
 ... 747 
 
 398, 502 
 ... 66 
 ... 501 
 ... 49 
 ... 93 
 ... 821 
 ... 723 
 ... 290 
 ... 57 
 ... 722 
 ... 723 
 ... 723 
 ... 67 
 .. 233 
 
 134,179 
 
 ... 479 
 
 ... 479 
 
 ... 450 
 
 Leadbeater, 3 Bum, J., by Chitty. 49 
 
 - Leafe, Andr. 226 ... 
 2 Camp. 134 
 
 - Leake, 5 B. 8c Ad. 469 ... 
 2 Nev. Sc M. 583 ... 
 
 - Lear, 1 Leach, 415, n. ... 
 -Lease, Andr. 216 
 
 - Leatham, 30 L. J., a. B. 20: 
 
 - Leatherbarrow, 10 Cox, 637 
 
 - Ledbetter, 3 C. Sc K. 108 ... 
 1 Mood. C. 0. 76 
 
 - Leddington, 9 C. 8c P. 79 ... 
 
 - Lee, Gas. temp. Hardw. 371 
 
 9 Cox, 304 
 
 5 Esp. 128 
 
 - 4 F. 4. F. 63 
 
 91 
 
 906, 908 
 906. 903 
 ... 331 
 ... 52 
 ... 231 
 ... 875 
 ... 250 
 ... 838 
 ... 18 
 ... 603 
 ... 477 
 
 773 
 
 351, 252, 253 
 
 B. V. Lee, L. & C. 309 
 
 L. & C. 418 
 
 83 L. J., M. C. 129 ... 
 
 1 Leach, 268, n. 
 
 2 M. & Bob. 281 
 
 2 Russ. 660 
 
 7 St. Tr. 48 
 
 Lejrgitt, 8 0. 8c P. 191 ... 
 
 Leigh, 4 P. & F. 916 
 
 1 Leach, 62 ... 
 
 Leng, 1 F. & F. 77 
 
 • Leonard, 1 East, P. C. 170 
 
 - 1 Leach, 86 
 
 PAGE 
 ... 477 
 470, 474 
 470, 474 
 ... 267 
 ... 678 
 ... 288 
 ... 722 
 ... 634 
 ... 18 
 
 - Leonard {Cheshire Special Com- 
 
 964 
 
 760 
 
 ... 760 
 
 mission, 1842) ... 
 
 2 0. & K. 614 
 
 - 1 Den. i 
 
 - Lesley, Bell, 220 
 
 - Lever, 1 Wil. Wol. «! Hod. 3S 
 
 - Lerett, Cro. Car. 638 
 
 - Levi, L. & C. 697 
 
 84 L. J., M. C. 174... 
 
 - Levine, 10 Cox, 374 
 
 - Levy, 8 Cox, 73 ... 
 2 Stark. N. P. 458 . 
 
 ... 483 
 
 31, 698 
 
 ... 96 
 
 24, 636 
 
 247, 876 
 
 247, 876 
 
 ... 476 
 
 ... 964 
 
 ... 198 
 
 ... 95 
 
 ... 938 
 
 ... 497 
 
 229, 649 
 
 ... 667 
 
 29, 626 
 
 ... 185 
 
 ... .562 
 
 29,626 
 
 113, 814 
 
 66,91 
 
 ... 642 
 
 ... 642 
 
 ... 816 
 
 202,823 
 
 ... 707 
 
 ... 227 
 
 ... 904 
 
 ... 463 
 
 ... 890 
 
 ... 453 
 
 ... 890 
 
 ... 405 
 
 ... 338 
 
 ... 21 
 
 ... 167 
 
 223 
 
 -2East,P.C.U23.66,422,423,858 
 - - „ . ___ jgj 
 
 ... 275 
 
 9,928,949 
 
 662, 684 
 
 ... 231 
 
 ... 231 
 
 - Lockley, 4 F. & P. 165 643 
 
 Locost, Kel. 30 500 
 
 Lolley, R. S: R. 237 888 
 
 London (Corp. of the City of), E. 
 
 B. Si E. 609 306 
 
 27 
 
 L. J., M. C. 231 306 
 
 Lewis, 4 Burr. 2468 
 
 11 Cox, 404 
 
 — 2 C. & P. 628 
 
 6 C. & P. 161 
 
 9 C. & P. 623 
 
 . Dears. Sc B. 182 ... 
 
 Dears. & B. 326 ... 
 
 Fost. H6 
 
 . 26 L. J., M. C. 104... 
 
 1 Str. 70 ... 9( 
 
 Leyton, Cro. Car. 584 
 
 Light, Dears. S: B. 822 ... 
 
 27 L. J., M. C. 1 ... 
 
 Lightloot, 6 E. & B. 822 ... 
 
 Lincoln, R. 8c R. 421 
 
 Lines, 1 C. & K. 393 
 
 Llngate, 1 Phil. Ev. 414 ... 
 
 Linton, 1 Russ. 374 
 
 Lister, Dears. & B. 119 ... 
 
 D. & B. 209 
 
 26 L. J., M. C. 26 ... 
 
 ■ 26 L. J., M. C. 196 ... 
 
 Lithgo, B. & R. 367 
 
 Little, 10 Cox, 669 
 
 - E, & R. 480 ... 
 
 - Lloyd, 4 B. & Ad. 135 
 4C. &P. --- 
 
 2 L. J., K. B. 214 , 
 
 - Locker, 6 Esp. 107 ... 
 
 - Lockett, 7 C. & P. 300 . 
 - 1 Leach, 94 
 
 - Lookhart, 2 East, P. C. 658 
 ' 1 Leach, 
 
 - (Lord Mayor, 8cc. of), L. R., 
 
 4 Q. B. 371 
 
 Long, 4 C. & P. 423 
 
 6 Co. 121 h ... 
 
 6 Co. 121 a ... 
 
 ■ 5 Co. 129 
 
 305 
 .. 628 
 .. 52 
 .. 63 
 66,66 
 
 Longden, R. & B. 228 643 
 
 Longstieeth, 1 Mood. C. C. 137 ... 338, 
 
 335,838 
 
 Longton Gas Co., 2 E. & £. 661 ... 899 
 
 -. 29 L. J., M. 0. 
 
 118 899 
 
Table of Cases. 
 
 PAGE 
 
 E. 11. Lonsdale, 4 P. & F. 66 ... 58, 71, 316 
 
 Lookup, 3 Burr. 1901 66 
 
 Loom, 1 Mooa. C. C. 160 ...61,201,360 
 
 Loose, Bell, 269 46,324 
 
 29 L. J., M. C. 132 324 
 
 Lopez, Dears. & B. 526. ..24, 30, 31, 626 
 
 Lord Mayor of London, Dav. & M. 
 
 484 254 
 
 6 Q. B. 
 
 656 „ 264 
 
 C. 215 ... 906 
 
 ... 906 
 
 ... 291 
 
 210,723 
 
 780, 781 
 
 780, 781 
 
 ... 446, 
 
 446, 465 
 
 ... 771 
 
 348 
 
 - Lordsmere, 19 L. J., 
 15Q. B. 
 
 M. 
 
 Longhran, 1 Crawf. & D. 79 
 
 Lovat (Lord), 9 St. Tr. 670 
 
 Loveless, 6 C. & P. 696 ... 
 
 1 M. & Bob. 349... 
 
 Lovell, 2 M. & Bob. 236 ... 
 
 - Lovett, 9 C. & P. 462 
 
 - Low, 10 Cox, 168 ... 
 
 - Lowick, 4 St. Tr. 718, 722, 731 ... 723 
 
 - Lowrie, 36 L. J., M. C. 24 ...371, 
 
 372, 873 
 L.R.,1 CO. R.61...371, 372,373 
 
 - Lucl(, 3 P. & r. 483 ... 9, 960 
 
 - Luckhurst, Dears. 245 225 
 
 28 L. J., M. C. 18 ... 225 
 
 - Lucy, C. & Mar. 511 828 
 
 - Lumley, L. B., 1 C. C. K. 196 ... 237, 
 238, 887 
 
 8 L. J., M.C. 86...237, 238, 887 
 
 633 
 
 ... 318,929 
 
 688 
 
 56 
 
 ... 667,676 
 
 247 
 
 439 
 
 - Lynch, 6 C. & P. 324 
 
 - Lynn, 2 T. E. 733 ... 
 
 - Lyon, 2 Leach, 397, 808 
 2 Leach, 608... 
 
 - E. & B. 266 ... 
 
 - Lyons, 9 Cox, 299 , 
 - C. & Mar. 217 
 
 ■ M' Arthur, Peake, 166 
 
 M'Athey, L. & C. 250 ., 
 
 "i L. J., M. C. 
 
 437 
 437 
 
 - M'Oafferty, 10 Cox, 603. .287, 723, 724 
 
 - Ma<arthy, C. & Mar. 626 ... 
 
 - Macarty, 2 Ld. Eaym. 1179 
 
 - Macauley, 1 Leach, 287 ... 
 
 - M'Connell, 1 C. & K. 371... 
 2 Mood. C. C. 298 
 
 - M'CnUey, 2 Mood. C. C. 34 
 
 - Macdaniel, Fost. 121, 128... 
 
 ■■ Post. 130 
 
 Post. 131 
 
 - 1 Leach, 46 
 
 - Macdonald, L. & C. 
 
 31 L. J., M. 
 
 C. 67 
 
 93 
 ... 938 
 ... 414 
 ... .584 
 ... 684 
 ... 61, 
 201, 350 
 ... 417 
 ... 939 
 ... 624 
 ... 939 
 ... 447 
 ... 447 
 962, 964 
 201, 664 
 84 
 
 - M'Ewln, Bell, 20 
 
 - M'Dermott, E. & E. 356 ... 
 
 - M'Donagh, Carr. Sup. 23 .. 
 
 - M'Ginnes, 11 Cox, 391 ... Add. Ixvii 
 
 - Macgrath, L. E., 1 C. C. E. 205... 332, 
 339, 415 
 
 -.39 L.J. , M.C. 7...332,339,416 
 . 445 
 , 32 
 . 446 
 , 727 
 . 663 
 
 Macgregor, 8 Bos. & P. 106 
 
 1 C. & K. 439 ... 
 
 E. & E. 23 
 
 ■ M'Growther, Fost. 13 
 
 Macguire, 2 Bast, P. C. 1332 
 
 - E. & B. 378 ... 
 
 M'Heron, 6 T. E. 316 819 
 
 M'Intosh, 2 East, P. C. 942 ... 667, 681 
 
 . MaxjkaUey, 5 Co. 66 h 49 
 
 9 Co. 67 6 ... 209, 211 
 
 . Plowd. 98 209 
 
 ■ . Sid. 326 49 
 
 . ■ Mackarell, 4 C. & P. 448 629 
 
 Mackay, II Cox, 148 222 
 
 M'Kale, 37 L. J., M. C. 97 ... 337 
 
 L. E., 1 C. C. E, 125 ... 337 
 
 PAGE 
 
 B. V. M'Kay, E. & E. 71 566 
 
 M'Keay, 1 Mood. C. C. 130 ... 678 
 
 M'Kenzie, E. & E. 429 ... 4, 170 
 
 M'Leod, 2 East, 202 109 
 
 M'Loughlin, 8 C. & P. 635 ... 665 
 
 M'Makin E. & E. 332 ... 8, 948 
 
 Mac Nally, 9 Eep. 670 622 
 
 M'Namee, 1 Mood. C. C. 168 ... 342 
 
 M'Naughton, 1 C. & K. 130, n. ... 19 
 
 10 CI. & Pin. 200 ... 19 
 
 M'Pherson, Dears. & B. 197 ... 164, 399 
 
 6L. J.,M.C.134...164,399 
 
 . 277 
 
 - M'Eue, 8 C. & P. 641 
 
 - Madden, 1 Mood. C. C. 
 
 - Madge, 9 C. & P. 29 
 
 - Madox, E. & E. 92 
 
 - Mahon, 4 A. & E. 676 
 
 - Mainwaring, Dears. & B. 132 
 ■ 26 L. J., M. C. 10 ., 
 
 - Major, Dears. 13 
 
 2 East, P. C. 1118 . 
 
 • 21 L. J., M. C. 221 
 
 - Malings, 8 C. & P. 242 
 
 - Manchester (Mayor of), 7 E. & B. 
 
 - 26 L. J., M. 
 
 707 
 
 ,. 71 
 
 ,. 35 
 
 .. 408 
 
 .. 668 
 
 ,. 269 
 
 ,. 269 
 
 103 
 
 426 
 
 103 
 
 160 
 
 C. 65 , 
 
 Mankletow, Dears. 159 ... 
 
 22 L. J., M. C. 116 
 
 Mann, 4 M. & Selw. 337 
 
 Manners, 7 C. & P. 801 
 
 Manning, 2 C. & K. 903, 7.. 
 
 2 C. & K. 887 ... 
 
 1 Den. 467 
 
 Dears. 21 
 
 22 L. J., M. C. 21 
 
 T. Eaym. 212 ... 
 
 1 Tentr. 159 632 
 
 Manoz, 2 Str. 1127 63 
 
 Mansfield, C. & Mar. 140 68, 215, 316 
 
 Manwarlng, Dears. & B. 132. ..884, 886 
 
 26 L. J., M. C. 10 ... 884, 
 
 99 
 
 702 
 
 702 
 
 179 
 
 8, 764, 948 
 
 14, 23, 967 
 
 ... 160 
 
 ... 150 
 
 ... 326 
 
 ... 326 
 
 ... 632 
 
 - Manzano, 2 P. & P. 64 .. 
 
 - March, 1 C. & K. 496 
 1 Mood. C. C. 182 
 
 - Marcus, 2 C. & K. 
 
 - Margette, 2 Leach, 930 
 
 - Marks, 10 Cox, 367... 
 3 East, 157 
 
 - Markuss, 4 P. & P. 356 ... 
 
 - Marriott, 8 C. & P. 426 ... 
 
 - Marsden, 37 L. J., M. C. 80 
 
 L. E., 1 C. C. R. 131 
 
 Moo. & M. 439 ... 
 
 - Marsh, 6 A. & E. 286 
 
 6 A. & E. 241 
 
 1 Den. 605 
 
 6L. J., M.C. 163... 
 
 19L. J.,M. C. 12... 
 
 - Marshall, Car. & M. 147 
 
 11 Cox, 490 
 
 4 B. & B. 476 ... 
 
 13 East, 322 
 
 24 L. J., Q. B. 242 
 
 1 Mood. C. C. 158 
 
 E. &E. 75 
 
 - Martin, 8 A. & E. 481 
 
 2 C. & K. 950 ... 
 
 3 C. & P. 211 
 
 6C. &P. 130 
 
 6C. &P. 662 
 
 7 C. & P. 649 
 
 9 C. & P. 213, 215 
 
 9 C. & P. 216 
 
 1 Den. 398 36, 184, 
 
 1 Leach, 171 
 
 2 Leach, 923 
 
 ... 160 
 ... 6.'J9 
 ... 512 
 ... 667 
 ... 496 
 207,324 
 ... 781 
 ... 628 
 ... 624 
 ... 642 
 ... 642 
 ... 109 
 ... 87 
 ... 77 
 ... 484 
 ... 77 
 ... 484 
 ... 261 
 ... 448 
 ... Ill 
 .. 113 
 ... Ill 
 ... 63 
 ... 662 
 ... 62 
 ... 436 
 
 217, 706 
 ... 661 
 2,668 
 ... 47 
 
 186, 436 
 ... 319 
 ... 765 
 
Table of Cases. 
 
 PAGE 
 
 R. 11. Martin, 18 L. J., M. C. 187 184, 185, 
 
 43S 
 
 36 L. J., M. C. 20 482 
 
 39 L. J., M. C. 31 365, 757 
 
 L. B., 1 C. C. R. 66 ... 482 
 
 L. R., 1 0. C. R. 214...366, 767 
 
 1 Mood. C. C. 413 661 
 
 ■ 2 Mood. C. C. 123 2, 658 
 
 K. & R. 108 491 
 
 R. & R. 196 802 
 
 R. & R. 824 612 
 
 Mason, 2 C. & K. 622 ... 698, 828 
 
 lEast, 180, n. ... 55,63 
 
 2 East, P. C. 976 56 
 
 Fost. 132 626,634 
 
 R. & R. 419 418 
 
 2 T. R. 581 63, 68, 186, 470 
 
 Massey, L. & C. 206 875 
 
 32 L. J., M. C. 21 ... 875 
 
 Masters, 1 B. & Aid. 362 62 
 
 2 C. & K. 930 451 
 
 1 Den. 332 182, 185, 461 
 
 18 L. J., M. C. 2...182, 186,451 
 
 Mastln, 6C. &P. 896 687 
 
 Matthews, I'Den. 696 
 
 . 9 St. Tr. 682 
 
 5 T. B. 162 
 
 ■ Mawbey, 6 T. B. 619 
 6 T. R. 637 
 
 - Mawgridge, Kel. 128 
 
 - May, 10 Cox, 448 
 
 1 DougL 193 
 
 L. & C. 13 
 
 • 1 Leach, 227 
 
 30 L. J., M. C. 81 .. 
 
 - Maybury, 4 r. & P. 90 .. 
 
 - Mayle, 11 Cox, ISO 
 
 - Maynard, 2 Bast, C. P. 601 
 R. & R. 240 
 
 770 
 
 67 
 
 178,939,941, 
 943 
 
 260 
 
 629 
 
 714 
 
 206 
 
 448 
 
 205 
 
 448 
 
 900 
 
 . 448 
 
 Mazagora, B. & R. 291 
 
 ■ Mazean, 9 C. & P. 676 
 
 Mead, 2 B. & C. 606 
 
 4 C. & P. 636 
 
 8 D. & R. 301 
 
 — -41). &E. 120 
 
 Meadows, 1 C. & K. 399 
 
 Meakin, 7 C. & P. 297 
 
 - 11 Cox, 270 
 
 - Meany, L. &. C. 213 
 82 L. J., M. C. 24 
 
 - Mears, 3 Den. 79 ... 
 20 L. J., M. C. t 
 
 - Meek, 9 C. & P. 613 
 
 - Megson, 9 C. & P. 420 
 
 - MeUish, B. & B. 80 
 • MeUor, Dears. & B. 468 . 
 27 L. J., M. C. 121 
 
 R. & R. 144 
 
 - Mence, C. & Mar. 234 
 
 - Mercerom, 2 Stark. 366 
 
 - Meredith, 8 C. & P. .589 
 R. & R. 46 
 
 .. 716 
 ... 238, 567 
 
 563 
 
 ... 222, 223 
 
 373 
 
 97 
 
 ... 222, 223 
 
 702 
 
 18 
 
 478 
 
 166 
 
 ... 166 
 ... 708, 988 
 708, 988 
 ... 818, 822 
 221, 222, 706 
 ... 446, 468 
 162, 184 
 168, 184 
 27,28 
 ... 381 
 ... 280 
 ... 658 
 
 - Merionethshire, 6 Q. B. 848 
 
 13 L. J 
 
 - Messenger, Kel. 70, 79 
 
 1813.858 
 
 2 St. Tr. 586, 694 
 
 ... 916 
 M. C. 
 
 916 
 
 , 727 
 727 
 727 
 
 - Messingimm, 1 Mood. C. C. 267 ... 
 
 436 
 
 - Metcalf, MS 163 
 
 1 Mood. C. C. 483 ... 371 
 
 - Michael, 9 C. & P. 366 ... 7, 627, 649 
 2Mood.C.C. 120 7,627,649 
 
 - Middleditch, 1 Den. 92 426 
 
 - Middlehurat, 1 Burr. 400 211 
 
 - Midwinter, Fost. App. 415 ... 947 
 
 '. Miere, 6 Bnrr. 2787 
 - Mildrone, Cowp. 382 
 1 Leach, 412 
 
 - Miles, 1 Doug. 283 
 1 Doug. 283, 284 ... 
 
 - Millar, 7 C. & P. 666 3. 
 
 - Millard, Dears. 167 
 22 L. J., M. C. 108 
 
 E. & R. 246 
 
 Miller, 2 Mood. C. C. 249 ... 
 
 2 W. Bl. 799 
 
 MiUis, 10 CI. & F. 634 ... 
 
 Mills, Dears. & B. 206 ... 
 
 - 26 L. J., M. C. ?9 ... 
 
 - Milnes, 2 F. & F. 10 
 
 - Minton, 2 East, P. C. 1021 
 
 - Mitchell, 3 Cox, 93 
 
 1 Den. 282 
 
 2 Den. 468 
 
 Fost. 119 
 
 2 F. & r. 44 ... 
 
 ■ 2 G. & D. 274 ... 
 
 21 L. J , M. C. 131 
 
 2 Q. B. 636 
 
 - Mizen, 2 M. & Bob. 382 ... 
 
 - Moah, Dears. 626 
 
 Dears. & B. 560 
 
 26 L. J., M. C. 66 ... 
 
 -27L. J„M. C. 204... 
 
 - Mobbs, 2 F. & F. 18 
 -Mocklord, llCox, 16 
 
 - Moflatt, 1 Leach, 431 
 
 - Mogg, 4 C. & P. 364 
 
 - Moland, 2 Mood. C. C. 276 12, 
 
 - Mole, 1 C. & K. 417 
 
 - Moody, L. & C. 178 
 31 L. J., M. 0. 
 
 . 166 
 
 Moor, 2 Lev. 179 
 
 Moore, 3 B. & Ad. 1 '54 ... 
 
 2 C. & P. 236 
 
 2 Den. 622 
 
 2 East, P. C. 679 ... 
 
 6 East, 421 
 
 IF, &F. 78 
 
 L. &C.1 
 
 21 L. J., M. C. 199 
 
 30 L. J., M. C. 77 ... 
 
 1 Leach, 814 
 
 1 Leach, 886 
 
 Moores, 7 C. & P. 270 
 
 Moore, 6 East, 419, n. (a) 
 
 PAGE 
 
 ... 933 
 ... 285 
 
 270, 285 
 ... 110 
 ... 113 
 , 817, 368 
 ... 815 
 ... 815 
 
 216, 670 
 _. 449 
 ... 187 
 ... 884 
 ... 482 
 ... 482 
 
 245, 821 
 
 212, 508 
 ... 107 
 ... .562 
 ... 418 
 ... 683 
 
 ... 418 
 ... S3 
 ... 910 
 
 446, 464 
 .. 699 
 
 446, 464 
 ... 699 
 ... 93 
 
 236,815 
 
 ... ass 
 
 547, 650 
 469, 952 
 330, 381 
 ... 689 
 ... 589 
 ... 701 
 ... 3 
 ... 762 
 ... 220 
 
 6 East, 421 
 
 - Mopsey, 11 Cox, 143 
 
 - Morflt, R. & B. 807 
 
 - Morgan, 1 Buls. 87 
 
 1 Cox, 109 
 
 Dears. 396 
 
 1 Doug. 314 
 
 1 M. (k Rob. 134, n. 
 
 2 Str. 1214 
 
 - Morley, Kel. 66 
 
 1 Mood. C. C. 97 
 
 - 1 Y. & J. 22 
 
 Morphew, 2 M. & Sel. 602 
 
 Morris, 1 B. & Ad. 441 
 
 2 Burr. 1189 
 
 9 0. &P. 89 
 
 9 C. «s P. 349 
 
 36 L. J., M. C. 84 ... 
 
 L. R., 1 0. C. R. 90 
 
 1 Leaxjb, 109 
 
 2 Leach, 1096 
 
 R. &B. 270 
 
 Morrison, Bell, 168 
 
 28 L. J., M. C. 210... 
 
 Morse, 8 C. & P. 606 
 
 Mortan, 2 East, P. C. 955 ... 
 
 2 M. & Rob. 614 ... 
 
 c 2 
 
 ... 220 
 ... 670 
 ... 380 
 ... 226 
 ... 880 
 , 836, 949 
 ... 413 
 ... 273 
 ... 780 
 ... 781 
 ... 579 
 ... 327 
 ... 165 
 ... 826 
 ... 386 
 ... 112 
 ... 267 
 ... 144 
 ... 251 
 ... 623 
 ... 53 
 ... 93 
 891, 901 
 244,821 
 ... 356 
 69, 821 
 136,657 
 136, 667 
 ... 667 
 ... 669 
 22, 569 
 373, 686 
 .373, 686 
 ... 233 
 ... 267 
 ... 224 
 
lii 
 
 Table of Cases. 
 
 K. s. Morton, E. & E. 19 n. 
 
 Moseley, L. & C. 92 
 
 31 L. J., M. C. 24 
 
 Moses, 7 O. & P. 429 
 
 Mosey, 1 Leach, 265, n. ... 
 
 Mosley, 1 Mood. C. C. 97 ... 
 
 Moss, Dears. & B. 104 
 
 i L. J., M. C. 9 ... 
 
 PAGE 
 
 ... sse 
 
 ... 481 
 
 ... 481 
 
 ... 566 
 
 ... 231 
 
 ... 222 
 
 ... 922 
 
 ... 922 
 
 ... 261 
 
 ... 666 
 
 Motheraell, Str. 93, 307 
 
 MounMord, E. & M. C. C. 441 
 
 -■ — 7 C. & P. 242 . ... 666 
 
 Mucklow, 1 Mood. C. C. 160 ... 384 
 
 Mullany, L. & C. 698 818 
 
 ^ 34 L. J., M. C. Ill ... 818 
 
 MuUer, 10 Cox, 43 282 
 
 Mulreaty, 1 Euss. 699 717 
 
 Monday, 2 East, P. C. 694 ... 369 
 
 ■ 2 Leach, 850 369 
 
 Munton, 3 C. & P. 498 824 
 
 Mnrdock, 2 Den. 298 ... 446, 464 
 
 21L. J.,M.C. 22 446,464 
 
 Murphy, 6 C. & P. 103 10,629,630,960 
 
 8 C. & P. 297 72, 238, 941 
 
 2 East, P. C. 949 ... 675 
 
 38 L. J., Priv. Coun. 63 178, 
 
 179 
 . L. E., 2 Priv. Coun. 535 178, 
 
 179 
 
 Murray, 5 0. & P. 145 
 
 2 East, P. 0. i 
 
 ... 461 
 ... 491 
 ... 491 
 ... 817 
 ... 343 
 348, 461 
 ... 666 
 ... 223 
 ... 288 
 ... 917 
 ... 342 
 ... 917 
 ... 342 
 
 Napper, 1 Mood. C. C. 44 50, 402, 496 
 
 -NasH,2 Den. 499,503 667 
 
 21 L. J., M. C. 147, 149 ... 667 
 
 -E. &R. 386 
 
 Post; 77 
 
 1 F. & F. 80 
 
 ILeaoh, 344 
 
 • 1 Mood. 0. 0. 276 
 
 - Murrow, 1 Mood. C. C. 456 
 
 - Murton, 3 F. & F. 492 ... 
 
 - MuBCOt, 10 Mod. 194 
 
 - Mutters, L. & C. 491 
 L. &C. 611 
 
 34 L. J., M. C. 22 
 34 L. J., M. C. 64 
 
 - Naylor, 11 Cox, 13 
 
 35 L. J., M. C. 61 
 
 - L. E., 1 C. C. E. 4 
 
 - Ncale, 1 C. & K. 691 
 
 7 C. & p. 168 
 
 1 Den. ; 
 
 - Neil, 2 C. & P. 486 
 
 - Netherseal, 4 T. E. 258 ... 
 
 - Uetherthong, 2 B. & Aid. 179 
 ■ JTettleton, 1 Mood. C. C. 259 
 
 - STcville, 6 Cox, 69 
 
 - Newhold, 11 Cox, 231 
 
 - Newham, 1 Ld. Eaym. 662 
 
 - Uewhouse, 22 L. J., Q. B. 127 
 1 Ball Court C. 129 
 
 ... 818 
 
 ... 483 
 
 ... 483 
 709, 942 
 
 ... 273 
 709, 942 
 
 ... 891 
 
 246 
 . 914 
 . 448 
 , 207 
 
 ... 38 
 ,. 8.57 
 ,. 867 
 
 - NewUl, 1 Mood. 0. C. 468 516, 619 
 Peake, 91 891 
 
 - Newman, Dears. 86 180, 257, 861 
 
 2 Den. 390 240,241,824 
 
 2 Den. 392 143 
 
 1 E. & B. 268 180, 772, 861 
 
 21 L. J., M. C. 76, 76 ... 143, 
 
 240, 241, 824 
 22 L. J., Q. B. 166 ... 180 
 
 - New Sarum,]5 L. J., M, C.15 ... 916 
 
 ■ 7 Q. B. 941 916 
 
 Newton, 1 C. & K. 469 ... 208, 238 
 
 IF. &F. 641 263 
 
 18 L. J., M. C. 201 ... 168 
 
 2 Mood. C. C. 69 ... 283 
 
 2 M. & Eoh. 603 78, 885 
 
 13 Q. B. 716 168 
 
 Nibbs, E. & E. 26 68, 314 
 
 E. V. Nichol, 1 B. & Aid. 21 
 
 E. & E. 130 
 
 Nicholas, 2 C. & K. 246 
 
 NichoUs, 9 C. & P. 267 
 
 10 Cox, 476 
 
 1 F. & F. 51 
 
 - Nichols, 13 East, 412, n. 
 2 Str. 1227 
 
 • Nicholson, 8 Dowl. P. C. 489 
 ' 2 Leach, 610 ... 
 
 PAGE 
 ... 816, 819 
 
 658 
 
 93,221,270, 
 706 
 
 664 
 
 ... 709, 710 
 
 ... 216,437 
 
 ... 97 
 
 942 
 
 144 
 
 -NicMess, 8C. &P. 737 
 - Nixon, 7 C. & P. 442 
 
 4 F. & F. 1040, n. (a) 
 
 1 Str. 185 
 
 928 
 
 397 
 
 715 
 
 115 
 
 444 
 
 '. 273, 867 
 
 . 628, 640 
 
 ... 46* 
 
 ... 632 
 
 ... 137 
 
 ... 137 
 
 ... 610 
 
 ... 52 
 
 ,.. 415 
 
 39 203 321 
 
 Norwich, 1 Str. 181, 182, 183 ' ..." 908 
 
 - Nott, C. & Mar. 288 880 
 
 Dav. &M. 1 830 
 
 12 L. J., M. C. 143 830 
 
 4Q. B. 768 830 
 
 - Nutbrown, Post. 76 491 
 
 -.Nute, 1 Burn's J, 973 (30th ed.) .. 227 
 
 - Nutt, 1 Barnard, 307 161 
 
 - OalLhampton (Mayor of), 1 Wils. 
 
 - Noake, 2 C. & K. 620 
 
 - Noakes, 6 C. & P. 826 
 4F. &F. 920 
 
 - Norman, C. & Mar. 601 . 
 
 - Norris, 9 C. & P. 241 
 2 Keb. 25 ... 
 
 1 Eoll. Rep. 297 . 
 
 - North, 2 Bast, P. C. 1021 
 
 - Norton, 8 0. & P. 196 
 8 C. & P. 671 
 
 E. & E. 610 
 
 - Oakley, 4 B. & Ad. 307 ... 
 
 2 h. J., M. C. 24 ... 
 
 - Dates, Dears. 469 
 
 - 24 L. J., M. C. 123 ... 
 
 - O'Brien, Clonmel Spl. Commission, 
 
 276 
 ... 860 
 
 ... 860 
 
 ... 477 
 
 . 477 
 
 1849 
 
 O'Connor, 5 Q. B. 16 
 
 Oddy, 2 Den. 264 ... 
 
 - 20 L. J., M. C. 198 
 
 - Odgers, 2 M. & Bob. 479 
 
 - O'Donnel, 1 Hud, & Br. 439 
 
 - O'Donnell, 7 Cox, 337 
 7 Cox, 341, 342 
 
 153 
 
 ... 37 
 
 216, 437 
 
 216, 487 
 
 127, 129 
 
 ... 162 
 
 ... 274 
 
 ... 274 
 
 ... 19 
 
 89, 203, 213 
 
 ... 205 
 
 ... 665 
 
 .. 502, 503 
 
 502, 503 
 
 602, 503 
 
 ... 263 
 
 701, 702 
 
 211, 657 
 
 ... 383 
 
 211, 667 
 
 Omant, 6 Cox, 466 250 
 
 Oneby, 2 Str. 766 629 
 
 Orbeli, 6 Mod. 42 91 
 
 Orchard, 8 Cox, 248 921 
 
 OrgiU, 9C. &P. 80 884,885 
 
 Osbom, 7 C. & P. 799 93 
 
 Osborne, 1 Bamardiston, 138, lee' 859 
 
 C. & Mar. 622 706 
 
 8 C. & P. 113 252 
 
 Osmer, 5 East, 304 52 
 
 Oswestry (Treasurer of), 12 Q. B. 
 
 - Ofiord, 6 C. & P. 168 
 
 - OgllTie, 2 C. & P. 230 
 
 - Oldfleld, 1 Euss. 360 
 
 2 Euss. 376 
 
 -Oldham, 3 C.&K. 260 ... 
 
 2 Den. 473 
 
 21 L. J., M. C. 134 
 
 - Oldroyd, Euss. & E. 88 ... 
 
 - Olifler, 10 Cox, 402 
 
 - Oliver, Bell, 287 
 
 2 Leach, 1072 
 
 30 L. J., M. C. 12 
 
 4 Taunt. 274 
 
 - Overton, C. & Mar. 656 
 
 - 12 L. J., M. C. 61 
 
 - 28 L. J., M. C. 29 
 
 291 
 
 ... 817 
 
 ... 661 
 
 186,812 
 
 ... 661 
 
Table of Cases. 
 
 liii 
 
 K. B. Overton, 2 Mood. C. C. 263 
 
 4 Q. B. 90 
 
 Owen, 4 C. a P. 236 
 
 ^ 9C. &P. 83 
 
 9 C. & P. 238 
 
 2 East, P. C. 645 ... 
 
 2 Leach, 672 
 
 1 Mood. C. C. 118...213, 
 
 PAGE 
 
 ... 817 
 ... 186 
 ... 16 
 93, 274 
 ... 229 
 ... 402 
 ... 402 
 ;S8, 926, 
 927 
 
 1 Mood. C. C. 296 ... 
 
 - Owens, 1 Mood. C. C. 206 647 
 
 - Oxford, 9 0. & P. 626 18 
 
 13 East, 411 97 
 
 (Mayor oJ), 3 Nev. & M. 
 
 178 
 
 - E. & E. 882 212 
 
 ... 916 
 
 186, 813 
 41,321 
 41, 321 
 
 423, 425 
 ... 66 
 ... 753 
 
 304, 753 
 ... 144 
 
 204, 763 
 ...'764 
 ... 947 
 
 292, 498 
 ... 261 
 ... 613 
 
 Oxfordshire, 1 B. & Ad. 2S 
 
 Oxley, 3 C. & K. 317 
 
 Packer, 2 East, P. C. 653 . 
 
 1 Leach, 357 
 
 Paddle, B. & R. 484 
 
 Paflrey, Cro. Jac. 527 
 
 Page,8C. &P 122 
 
 9 C. & P. 766 
 
 1 DowL 607 ... 
 
 - 2 Mood. C. C. 219 . 
 
 Page and Jones, 1 Russ. 
 
 Paget, Post. 355 ... 
 
 Paine, 7 C. & P. 136 
 
 1 Salk. 281 ... 
 
 Paise, 1 C. & K. 73... 
 
 Palmer, 6 C. & P. 652 
 
 5 E. & B. 1024 
 
 • 2 Leach, 978 
 
 1 M. & Bob. 70 
 
 1 N. K. 96 
 
 K. & K. 72 
 
 - 3 St. Tr. 56 
 
 96, 101 
 
 ... 7 
 
 ... 928 
 
 7, 569, 574 
 
 569, 674 
 
 287, 724 
 
 ... 891 
 
 - Papineau, 1 Str. 
 
 - Paradice, 2 East, P. C. 566 
 
 - Parish, 7 C. & P. 782 93 
 
 - Parker, C. & Mar. 639 288 
 
 Coll. 477 18 
 
 and Ashworth, MS. ... 260 
 
 7 C. & P. 825 476 
 
 9 C. & P. 45 609 
 
 L. & C. 42 225 
 
 L. & C. 469 ... 74, 929 
 
 30 L. J., M. C. 144 ... 226 
 
 38 L. J., M. C. 1.16 ... 74, 929 
 
 39 L. J., M. C. 60 ... 213, 252, 
 
 826, Add. Ixvii 
 L. E., 1 C. C. E. 226..213, 252, 
 
 826, Add. Ixvti 
 2 Mood. C. C. 1 476 
 
 - Parkes, 2 East, P. C. 671 .. 
 2 East, P. C. 963.. 
 
 - 2 Leach, 614 
 
 - 2 Leach, 773 
 
 - Parkin, 1 Mood. C. C. 46. 
 - 1 Sld. 208, 209 . 
 
 - Parkins, By. & M. 166 ... 
 
 - Parkinson, 2 Den. 459 
 - 21 L. J., M. C. 48, ; 
 
 ... 662 
 ... 333 
 ... 662 
 34, 166, 345 
 ... 4 
 
 - Parkyns, 3 B. & Aid. 668... 
 - 4 St.. Tr. 627 
 
 - Parr, 2 M. & Bob. 346 
 
 - Parratt, 4 C. & P. 570 
 
 - Parrott, 6 C. & P. 402 
 
 - Pany, 7 C. & P. 836...132, 133, 151, 241 
 
 ... 160 
 ... 180 
 . 2. 180 
 ... 112 
 ... 722 
 69, 436 
 ... 224 
 511 
 
 - Paisens, 1 W. Bl. ; 
 
 - Parsons, 35 L. J., M. C. 167 
 L. E.,1 C. C. E. 24 
 
 - Partridge, 7 C. & P. 561 ... 
 
 - Paacoe, 2 C. & K. 927 
 1 Den. 456 
 
 -18L. J., M. C. 186., 
 
 ... 941 
 ... 808 
 
 Passey, 7 C. Ss P. 2 
 
 . 9, 928, 949 
 
 E. V. Passman, 1 A. & E. 603 . 
 
 2 Dowl. 529 
 
 Patch, 1 Leach, 238 
 
 Patcman, B. & E. 466 
 
 Patience, 7 C. & P. 775 .. 
 
 Patram, 2 East, 782 
 
 Patrick, 2 East, P. C. 1069 
 
 - 1 Leach, 263 
 
 PAGE 
 
 .. 103 
 .. 97 
 
 - Paty, 2 Salk. ! 
 
 - 2 W. BI. 721... 
 
 - Paul, 2 M. & Bob. 807 ... 
 
 - Payn, 34 L. J., Q. B. 69 ... 
 
 - Payne, 4 C. & P. 558 
 
 36 L. J., M. C. 170 ... 
 
 L. B., 1 C. C. E. 27... 
 
 1 Mood. 0. C. 378... 
 
 - Peace, 3 B. & Aid. 679 ... 
 
 - Peach, 1 Burr. 548 
 
 - Pear, 2 East, P. C. 685 
 ■ I Leach, 212... 
 
 - Pearce, 3 B. & S. 631 
 
 2 East, P. C. 603... 
 
 2 Leach, 1049 ... 
 
 32 L. J., M. 0. 76 
 
 • Peake, 76 ... 
 
 E. &E. 174 
 
 ... 566 
 
 ... 644 
 
 ... 2?2 
 
 . 46,321 
 
 46, 324 
 
 ... 188 
 
 ... 647 
 
 904, 907 
 
 ... 119 
 
 ... 665 
 
 ... 802 
 
 ... 802 
 
 643, 688 
 
 40 
 
 112 
 
 337, 349, 483 
 ... 337, 349 
 815 
 
 - Pearson, 6 C. & P. 121 .. 
 
 7 O. & P. 671 .. 
 
 8C. &P. 119 .. 
 
 - 1 Mood. C. C. 313 
 
 -Pease, 4 B. & Ad. SO 
 2 L. J., M. 0. 26 ... 
 
 - Peat, 1 East, P. C. 229 ... 
 
 1 Leach, 228 
 
 - Peck, 9 A. & E. 686 
 
 1 Per. & D. 508 
 
 2 Buss. 180 
 
 - Pedley, 1 Leach, 327 
 Peel, 2 F. & r. 21 
 
 L. &C. 231 
 
 32L. J.,M. C.66 ... 
 
 - Pelham, 16 L. J., M. C. 106 
 
 - 8 Q. B. 959 
 
 - Peltier, Holt on Libel, 78 ... 
 2 Sel. N. P. 1048... 
 
 - Pembridge, 3 G. & D. 6 ... 
 12 L. J., Q. B. 47 
 
 ... 420 
 
 ... 815 
 
 216, 771 
 
 62, 399, 406, 
 
 420 
 
 67,371 
 
 2.i6 
 
 812 
 
 67,871 
 
 ... 892 
 
 ... 892 
 
 ... 714 
 
 ... 417 
 
 ... 940 
 
 ... 940 
 
 ... 451 
 
 ... 818 
 
 222, 282 
 
 ... 31 
 
 ... 31 
 
 ... 625, 
 
 660 
 
 626, 660 
 
 ... 859 
 
 - 3 Q. B. 901 
 
 772 
 905 
 160, 
 90.5 
 160, 905 
 97 
 
 &B. 383 
 
 - — Penny, Chester Sum. Ass. 1855 
 - 1 Ld. Eaym. 163... 
 
 - Penprase, 4 B. & Ad. 573 
 - 1 Nev. & M. 
 
 Penegoee, 1 B. & C. 142 
 
 and Machynlleth, 2 B.& 
 
 C. 166 916 
 
 3 D. 
 ... 916 
 ... 530 
 ... 166 
 96,97 
 96, 9T 
 ... 887 
 ... 818 
 ... 121 
 
 12L 
 
 10, 630, 843, 
 960 
 
 222 
 
 184, 436 
 ... 436 
 ... 22J 
 
 - Penson, 6 C. & P. 412 
 
 - Pepys, Peake, 138 
 
 - Perkin, 14 L. J., M. C. 87... 
 
 7Q. B. 165 
 
 •Perkins,4C. &P. 637 
 
 - 9 C. & P. .395 ... 
 
 - 2 Den. 459 
 
 - 21 L. J., M. C. 162 
 
 - 2 Mood. C. C. 135 
 
 -Perrott, 2M. &Se].379 
 - 2 M. & Sel. 379, 
 
 - Perry, 1 C. & K. 725 
 
 Dears. 471 
 
 — 1 Den. 69 
 
 lEast,P. C. 4.')4 ... 
 
 1 Hawk. c. 41, s. 1 3 
 
 -24L. J., M. C. 137... 
 
 03 
 
 ... 478 
 371, 372 
 ... 715 
 371, 372 
 ... 700 
 ... 700 
 ... 716 
 
liv 
 
 It. 11. Perry, I Knss. 710 ... 
 
 Petera, 1 Buir. 668 ... 
 
 1 C. & K. 245 
 
 Petrie, 4 E. & B. 7S7 
 
 ' 1 Leach, 394 
 
 Table of Cases. 
 
 - Pew, Cro. Car. 183 ... 
 
 - Pewtress, 2 Str. 1026 
 
 - Phelps, C. & Mar. 180 ., 
 - C. & Mar. 181 
 
 ■ Philips, 8 C. & P. 736 
 - 1 F. & F. 105 
 
 - Phillips, 8 Burr. 1564 
 
 3 Camp. 74 
 
 11 Cox, 142 
 
 2 East, P. C. ( 
 
 6 East, 464 
 
 6 East, 470 
 
 Hardw. 241 
 
 2 Mood. C. C. 262 ... 
 
 B. &R. .369 
 
 2 Str. 921 6; 
 
 - Phillpot, Dears. 179 
 22 L. J., M. C. 113 
 
 - Phillpotts, 3 C. &K. 136 ... 
 2 Den. 302 
 
 - Philp, 1 Mood. C. C. 263 ... 
 
 - Philpotts, 1 C. & K. 112 ... 
 21 L. J,, M. 0. 18 
 
 - Phipoe, 2 East, P. C. 699 ... 
 
 -2 Leach, 673 ... 372, 
 
 Picket, 2 East, P. C. 501 . 
 
 PicUord, 4 C. & P. 227 ... 
 
 Pierce, Bell, 236 ... 
 
 Pierson, 2 Ld. Eaym. 1197 
 
 1 Salk. 382 
 
 Pigott, 11 Cox, 44, 45 
 
 Pike, 3 C. & P. 698 
 
 - 1 Leach, 417.. 
 
 - Pikesley, 9 0. & P. 124 
 
 - Pilier, 7 C. & P. 337 
 
 - Pilling, 1 F. & F. 324 
 
 - Pitman, 2 C. & P. 423 
 
 - Pitt, 3 Burr. 1336 ... 
 1 W. Bl. 380 ... 
 
 - Pitts, C. & Mar. 284 
 - 8 C. & P. 771 
 
 - Plealow, 1 Camp. 494 
 
 - Plumer, B. & K. 264 
 
 - Plummer, Kcl. 109 ... 
 
 Kel. Ill .. 
 
 9,10, 
 
 - Plymouth, 4 Burr. 2089 ... 
 
 - Plympton, 2 Ld. Kaym. 1377 
 
 - Pocock, 17 Q. B. 34 
 - 2 Str. 1157 
 
 - Pollman, 2 Camp. 239, k. ... 
 
 - Pollock, MS. 1816, 1 Phil. Ev. 
 
 - PoUy, 1 C. & K. 77 
 
 - Pond, Comyns, 312 
 
 - Poole, Dears. & B. 345 
 
 - 37 L. J., M. C. 53 
 
 - Pooley, 2 Leach, 900 
 
 R. & K. 12... 
 
 - K. & E. 31 
 
 Pope, 6 C. & P. 346 
 
 Popplewell, 1 Str. 686 ... 
 
 Porter, 9 C. & P. 778 
 
 ■ L. 8t C. 394 
 
 33 L. J., M. C. 126 
 
 Post, E. & E. 101 
 
 Potter, 2 Den. 235 
 
 3 C. & K. 179 
 
 20 L. J., M. C. 170... 
 
 Poulton, 5 0. & P. 329 ... 
 
 Poantney, 7 C. & P. 302 ... 
 
 Povey, Dears. 33 
 
 - 22 L. J., M. C. 19 ... 
 
 - Powell, 2 B. & Ad. 76 
 
 
 PAGE 
 
 
 700 
 
 ,. 
 
 178 
 
 
 830 
 
 
 906 
 
 
 403 
 
 
 646 
 
 
 73 
 
 642 
 
 948 
 
 
 129 
 
 17,706 1 
 
 
 143 
 
 
 109 
 
 
 712 
 
 
 169 
 
 
 326, 
 
 
 349 
 
 6( 
 
 ,852 
 
 
 862 
 
 
 113 
 
 626 
 
 ,842 
 
 75 
 
 ,212 
 
 1,91 
 
 812 
 
 3 
 
 624 
 
 
 624 
 
 
 818 
 
 
 818 
 
 
 516 
 
 91,476 1 
 
 
 818 
 
 
 416 
 
 416 
 
 421 
 
 
 494 
 
 
 424 
 
 
 806 
 
 ... 
 
 895 
 
 
 895 
 
 768 
 
 772 
 
 
 222 
 
 
 409 
 
 229 
 
 281 
 
 
 25 
 
 ... 
 
 664 
 
 
 338 
 
 
 110 
 
 
 110 
 
 
 625 
 
 
 40 
 
 201 
 
 480 
 
 446 
 
 771 
 
 949 
 
 960 
 
 
 164 
 
 
 109 
 
 • •• 
 
 110 
 
 
 640 
 
 
 839 
 
 
 939 
 
 7... 
 
 370 
 
 
 67 
 
 
 938 
 
 
 326 
 
 
 326 
 
 
 267 
 
 87a 
 
 446 
 
 ... 
 
 382 
 
 
 831 
 
 
 67 
 
 643 
 
 6R4 
 
 
 660 
 
 
 660 
 
 
 562 
 
 ... 
 
 400 
 
 
 400 
 
 ... 
 
 400 
 
 
 626 
 
 
 226 
 
 884 
 
 886 
 
 834 
 
 886 
 
 ... 
 
 176 
 
 E. V. Powell, Car. & M. 600 
 
 7 O. & P. 640 
 
 2 Den. 
 
 2 Bast, P. C. 976.. 
 
 1 Leach, 77 
 
 1 Leach, 110 
 
 21 L. J., M. C. 78 
 
 Powle, 2 Eol. Eep. 52 
 
 Powles, 4 C. & P. 671 
 
 Poynder, 1 B. & C. 178 ... 
 
 2 D. & B. 258 ... 
 
 PAGE 
 ... 283 
 ... 306 
 187, 318, 868 
 
 - Poynton, L. & C. 247 
 32L. J.,M. C. 
 
 29. 
 
 - Pratt, Dears. 860 ... 
 
 Dears. 602 ... 
 
 — . 4 E. & B. 860 
 
 4 F. & F. 816 
 
 1 Mood. C. C. 250 
 
 205 
 
 ... 55 
 
 ... 270 
 
 . 818, 368 
 
 ... 78 
 
 ... 985 
 845, 881 
 845, 381 
 ... 829 
 ... 928 
 ... 928 
 
 ... 62 
 ... 648 
 ... 705 
 ... 831 
 ... 905 
 temp. 
 ... 161 
 
 2 Str. 1040... 161 
 
 ■ (Lord), 4 St. Tr. 409, 456. 728 
 
 4 St. Tr. 410, 465 .. 35, 
 
 723, 728, 724 
 
 - Pratten, 6 T. K. 669 
 
 - Prebble, 1 F. & F. 326 .. 
 
 - Pressey, 10 Cox, 686 
 
 - Preston, 2 Den. 353 
 
 7 Dowl. 593 
 
 ■ Inhbts. of, Eep. 
 
 - 21 L. J., M. C. 41 
 
 - 2 M. & Bob. 137... 
 
 ... 381 
 ... 905 
 ... 626 
 643, 688 
 ... 23 
 ... 642 
 ... 620 
 ... 237 
 ... 271 
 ... 701 
 ... 842 
 .. 388, 
 
 477 
 ,1C.(T.E.150, 165..333, 
 
 477 
 
 - Pringle, 9 C. & P. 408 606 
 
 2 Mood. C. C. 127 ... 606, 613 
 
 - Pritchard, 7 C. & P. 303...21, 138, 141, 
 
 142 
 
 30 L. J., M. C. 169...44, 207, 
 
 446 
 - L. & C. 84 ... 44, 207, 446 
 ... 327 
 ... 327 
 
 - Price, 6 C. & P. 510 
 
 7 C. & P. 178 
 
 8 0. & P. 19 
 
 8 C. & P. 382 
 
 9 C. & P. 729 
 
 6 East, 328 
 
 - Priddle, 1 Leach, 442 
 
 - IMmelt, 1 F. & F. 60 
 
 - Prince, 11 Cox, 146 
 
 . — ■ 38 L. J., M. C. 8, 11 
 
 - L. B., 
 
 Privett, 2 C. & K. 114 
 
 1 Den. 193 
 
 Probert, Dears. 80 96 
 
 2 East, P. C. 1031 ... 608 
 
 Pressor, 3 East, 502 ... . 495 
 
 Proud, L. & C. 97... 209, 449, 456 
 
 31 L. J., M. C. 71 ... 209,449, 
 
 465 
 
 Prowes, 1 Mood. C. C. 349 ... 36 
 
 Prynn, 5 Mod. 459 108 
 
 Puckering, 1 Mood. C. C. 242 ...58, 315 
 
 Puddick, 4 F. & F. 497 160 
 
 Puddifoot, 1 Mood. 0. C. 247 61, 301, 
 
 350 
 
 Pulbrook, 9 C. & P. 37 ... 686, 687 
 
 Pulham, 9 C. & P. 280 ... 18,69,71, 
 
 437 
 Purchase, C. & Mar. 617..,64, 127, 129, 
 
 444 
 
 8 St. Tr. 267 ... 737 
 
 Purefoy, Peake, Et. 64 252 
 
 Purnell, 1 W. Bl. 87 ... . 261 
 
 1 Wils. 239 261 
 
 Pusey, 2 Str. 717 97 
 
 Pye, E. &K. 9 212 
 
 Quail, 4 F. & F. 1076 955 
 
 Eaake, 8 C. & P. 627 582 
 
Table of Cases, 
 
 Iv 
 
 E. V. Eaake, 2 Mood. C. C. 66 . 
 
 Badbourne, 1 Leach, 457 
 
 Eadlord, 1 C. & K. 707 . 
 
 • 1 Den. 69 ... 
 
 ■ Hadley, 2 C. & K. 974 
 
 • 1 Den. 460 
 
 - Sagg, Bell, 214 
 
 - 29 L. J., M. C. 86 
 
 ... 69 
 ,.. 474 
 ... 474 
 
 - Eampton, Kel. 41 639 
 
 - SamBbottom, 1 Leach, 26, n. ... 246 
 -Eamsden, B.,B. &E. 949.. 913,914 
 . ■ 27 L. J., M. C. 296 ... 913, 
 
 911 
 
 - Randall, C. & Mar. 496 
 - E. & E. 195 
 
 Kanldn, K. & E. 43 
 
 Sanson, 2 Leach,' 1090, 1093 
 
 E. & K. 232 
 
 ■ Eathbone, Car. & Mar. 220 . 
 
 891, 901 
 
 ... 666 
 
 ... 630 
 
 ... 373 
 
 373, 446 
 
 381, 382 
 
 - 2 Mood. C. 0. 242...381, 382 
 
 - Eaudnltz, 11 Cox, I 
 
 - Eavenscroft, E. & B. 161 ... 
 
 - Kawlings, 7 C. & P. 160 ... 
 
 - EawUns, 8 C. & P. 439 ... 
 - 2 East, P. C. 617... 
 
 Head, 2 0. & K. 967 
 
 1 Den. 377 ... 
 
 Fost. Eep. 98 
 
 18 L. J., M. C. 88 
 
 ■ Reader, 4 C. & P. 245 
 
 Eeading, 7 C. & P. 619 
 
 1 Bast, 180, n. 
 
 2 Leach, 690 
 
 -7St.Tr. '.' 
 
 Reaney, Dears. & B. 151 ... 
 
 - 26 L. J., M. C. 43 
 
 261 
 ... 681 
 ... 494 
 ... 815 
 ..3.50 
 658, 710 
 ... 658 
 ... 778 
 ... 668 
 ... 619 
 ... 231 
 67,205 
 57, 206 
 ... 280 
 ... 232 
 ... 222 
 ... 216 
 
 - Eearden, 4 F. & F. 76 
 
 - Eeardon, 36 L. J., M. C. 171...436, 437 
 L. E., 1 C. C. E. 31 ... 436 
 
 879,880 
 379, 380 
 ... 223 
 ... 414 
 l...707,716 
 ... 667 
 ... 426 
 ... 426 
 
 - Eeason, Dears. 226 
 
 23 L. J., M. C. 11 
 
 - 1 Str. 499 ... 
 
 Eeave, 2 East, P. C. 735 ... 
 
 . Eectspear, 1 Mood. C. C. 34! 
 
 Beculist, 2 Leach, 703 
 
 Bedman, 35 L. J., M. C. 89 
 
 L. E., 1 C. C. E. 12 
 
 Beea, C. Si Mar. 306 
 
 7 C. & P. 848 
 
 8 C. & P. 628 
 
 Dears. 168, 257 
 
 23 L. J., M. C. 25 ... 
 
 . Moo. & Mai. 
 
 2 Mood. C. C. ( 
 
 - Eees, 5 C. & P. 802 
 - 7 C. S P. 668 
 
 ... 474 
 
 ... 585 
 
 348,461 
 
 348, 461 
 
 ... 232 
 
 - Beeves, 9 C. & P. 25 
 -Eeilly, 1 Leach, 464 
 
 - Eemnant, 4 C. & P. 891 
 - E. & E. 136 
 
 - Eendle, 11 Cox, 209 
 
 - Eeynolds, B. & E. 465 
 
 - Bhodes, 1 Lea£h, 24 
 2 Ld. Baym. 88( 
 
 - Bice, BeU, 87 
 
 6 C. & P. 634 ... 
 
 3 East, S81 
 
 28 L. J., M. 0. 64 
 
 35 L. J., M. 0. 93 
 
 L. E., 1 C. 0. B. 21 
 
 - Eichards, S B. & C. 240 294 
 
 1 C. & K. 632 ... 326, 328 
 
 6 C. & P. 318 ... 224, 227 
 
 11 Cox, 43 426 
 
 4r. &r. 860 253 
 
 1 M. & Bob. 177... 60, 402, 496 
 
 2Man. &B. 405 294 
 
 E.&K. 193 666 
 
 292 
 
 .. 231,494 
 626 
 
 _. 827 
 
 41 
 
 _41,297,321 
 
 76 
 
 868 
 
 259 
 
 ... 211 
 
 369 
 
 588 
 
 862 
 
 369 
 
 895 
 
 PAGE 
 
 E. ». Eichards, 8 T. E. 684 3,4 
 
 Elchardson, 8 Cox, 448 ... 209, 455 
 
 2 P. & F. 348 . . . 209, 455, 
 
 663 
 
 1 M. & Bob. 402 ... 940 
 
 Blchmond, BeU, 142 608 
 
 1 . & K. 240 ... 132, 760 
 
 Eictetts, 3 Camp. 68 667 
 
 Eickman, 2 East, P. C. 1086 ... 215, 
 
 236, 509, 611 
 
 - Bider, 8 C. & P. 689 
 
 - Eidgley, 1 East, P. C. 172 
 -Eldley, 2Camp. 660 
 
 - E. & E. 615 
 
 -Eigby, 8C..&P. 770 
 - Eigg, 4 F. & F. 1086 
 -MS. 
 
 - Biley, 8 C. & K. 116 
 - Dears. 149 
 
 4 F. & F. 964 
 
 - 22 L. J., M. C. 48 
 
 160 
 ... 760 
 
 ... 1 
 60, 61, 926 
 91, 187 
 ... 252 
 ... 262 
 ... 249 
 ... 840 
 ... 288 
 ... 340 
 
 - Hinaldi, L. & C. 330 
 83 L. J., M. C. 28 ... 608 
 
 - Bing, 8 T. E, 68S 291 
 
 - Eitson, 39 L. J., M. C. 10 ... 661, 577 
 - L. E., 1 C. C. E. 200 ... 661, 577 
 
 ... 229 
 ... 702 
 
 - Elvers, 7 C. & P. 177 
 
 - Eobb, 4 F. & F. 69 
 
 - Eoberts, 1 Camp. 399 
 
 1 Camp. 400 214 
 
 C. & Mar. 662 683 
 
 2 C. & K. 607 288 
 
 7 C. & P. 486 322 
 
 Dears. 589 ... 768, 760 
 
 2 East, P. C. 487 ... 499 
 
 26 L. J., M. C. 17 ... 768,760 
 
 4 Mod. 103 61 
 
 2 Mood. C. C. 258 ... 583 
 
 Show. 389 68 
 
 - Eobertson, L, & C. 483 ... 415, 432 
 34 L. J., M. C. 35...416,422 
 
 - Bobins, 1 C. & K. 456 702 
 
 1 Leach, 290, n 414 
 
 2 M. & Eob. 512 706 
 
 - Eobinson, 12 A. & E. 672... 185, 136 
 
 BeU, 84 ... 319, 358, 481 
 
 2 Burr. 799 ... 2, 886 
 
 3 Burr. 806 8 
 
 2 East, P. C. 
 
 2 East, P. C, 
 
 . 565 ... 843 
 . 661 ... 821 
 
 4 F. & F. 43... 816, 486 
 
 1 Holt, 695 ... 47, 203, 821 
 
 L. & C. 604 764 
 
 10 L. J., M. C. 9 ... 186, 186 
 
 28 L. J., M. 0. 68 ... 819, 
 
 368, 481 
 
 34 L. J., M. 0. 176 ...764 
 
 36 L. J., M. C. 78 ... 230, 
 
 247, 876, 877 
 
 L. E., 1 C. C. E. 80 ... 230, 
 
 247, 876, 877 
 
 3 Leach, 749 ... 309, 434 
 
 1 Mood. C. C. 327 ... 497 
 
 1 Mood. C. C. 413 ... 765 
 
 2 M. & Eob. 14 ... 425 
 
 4P. &D. 891... 186,136 
 
 E. & E. 321 ... 62, 899, 406, 
 
 430 
 
 2 Stark. N. P. 486 ... 888 
 
 6 T. E. 642 114 
 
 -1 W. Bl. 641 ... 110,113 
 
 - Bobson, B. & B. 413 
 
 L. & C. 93 
 
 81 L. J., M. C. 
 
 - Eoche, 1 Leach, 134 
 
 - Eoddam, Cowp. 672 
 
 - Eodgers, 9 C. & P. 41 
 
 - Eodway, 9 C. & P. 984 
 
 ... 841 
 
 ... 341 
 
 ... 131 
 
 ... 290 
 
 ... 683 
 
 ... 333 
 
Ivi 
 
 Table of Cases. 
 
 PAGB 
 
 E. V. Roebuck, Dears. & B. 24 ... 475, 482, 
 484 
 
 ■ 36 L, J., M. C. 101 ..475, 482, 
 
 484 
 
 - Kogers, 2 Carap. 654 
 
 8 C. & P. 629 
 
 — 9 C. & P. 41 
 
 37 L. J., M. C. 8 
 
 210 
 662 
 
 ...66,561,586 
 ..11,34,487 
 
 - L. K., 1 C. C. B. 136 
 -^ 1 Leach, 89 495 
 
 - 1 Leach, 89, 428 492 
 
 - 2 Mood. C. 0. 86 ... 755, 768, 
 761 
 
 - Eogicr, 1 B. & C. 272 ... 
 - 2 D. & B. 431... 
 
 - Rookwood, Holt, 683 
 
 Holt, 684 
 
 4et. Tr. 661 
 
 4 St. Tr. 661, 
 
 - 4 St. Tr. 677 
 
 896, 898, 922 
 896, 896, 922 
 
 214 
 
 92 
 
 ... 722, 723 
 ... 214 
 
 697 
 
 - Rooney, 7 C. & P. 617 
 
 - Eoper, 2 Str. 1072 
 
 ~ Roae, 1 Leach, 342, n. 
 
 - Rosenberg, 1 C. & K. 233 
 
 - Rosier, 2 PhiL Ev. 106 ... 
 
 - Eosmskl, 1 Mood. C. C. 12 
 
 - Rourke, R. & R. 386 
 
 - Kowe, Bell, 93 
 
 28 L. J., M. C. 128... 
 
 - B. & B. 163 ... 
 
 ... 216 
 ... 115 
 ... 867 
 ... 342 
 ... 227 
 ... 668 
 ... 896 
 41, 322 
 ... 322 
 
 - Rowed, 2 G. & D. 618 ...63, 718, 920 
 
 11 L. J., M. C. 74... 718, 920 
 
 - 3 Q. B. 180 
 
 - Rowland, 1 F. & F. 72 
 Ey. & M. 401 
 
 63,718,920 
 247, 821 
 ... 274 
 2, 60, 96, 
 
 - Rowlands, 2 Den. 864 
 
 106, 149, 181, 
 
 ■ 2 Den. 864, 371, n. ... 149 
 
 2 Den. 386 180 
 
 21 L. J., M. C. 81 ... 96, 
 
 106, 939, 943 
 
 17 Q. B. 671 ... 2, 60, 106, 
 
 939, 943 
 
 - Rowley, 12 Co. 87 632 
 
 1 Mood. C. C. Ill 
 
 Ry. & M. 302 ... 
 
 B. & R. 110 
 
 - Bowton, L. & C. 620 
 
 - 84 L. J., M. C. 67 
 
 - Eoyce, 4 Burr. 2073 
 1 Chit. Crim. L. 648 
 
 Eudick, 8 C. & P. 237 
 
 Ruaiand, 4 F. & F. 496 ... 
 
 Rundle, Dears. 482 
 
 24 L. J., M. C. 129 . 
 
 Rushworth, R. & E. 317 ... 
 
 Russell, 6 B. & C. 666 ... 
 
 C. &Mar. 247 ... 
 
 C. & Mar. 541 ... 
 
 9 D. & R. 666 ... 
 
 . 6 East, 427 
 
 3 E. & B. 942 ... 
 
 (Lord), 3 St. Tr. 705 
 
 IL. J., M. C. 173 
 
 . 824 
 . 822 
 . 596 
 218 
 . 218 
 . 164 
 . 164 
 !, 416 
 . 160 
 . 660 
 
 891, 901 
 ... 76 
 ... 609 
 
 891, 901 
 ... 899 
 
 179, 902 
 .. 722 
 
 179, 902 
 
 - 1 Mood. C. 0. 356...9, 13, 627, 
 - 1 Mood. C.'C. 377 
 
 Eussen, 1 East, P. C. 438, 439, 
 
 Bust, 1 Mood. C. C. 183 ... 
 
 Ruston, 1 Leach,408 
 
 Ryan, 2 Cox, 116 
 
 2 Mood. C. C. 16 
 
 - 2 M. & Rob. 213 
 
 - Eyland, 37 L. J., M. C. 10 
 . L. R., 1 C. C. E, 99 
 
 ,. 497 
 ,. 707 
 .. 499 
 
 270 
 
 705 
 
 61, 664 
 
 649, 663, 666 
 
 52,66 
 
 - Eymes, 3 C. & K. 326 
 
 - Sadbury, 1 Ld. Eajm. 484 
 2 Salk. 593 
 
 52,66 
 ... 207 
 ... 841 
 ... 841 
 
 PAGE 
 
 E. V. Sadler, 4 C. & P. 218 289 
 
 Sainsbuiy, 4 T. E. 451 ... 2, 65, 834 
 
 St. Andrew's, 1 Mod. 112 .. 908 
 
 Botolph, 1 W. Bl. 443 ... 112 
 
 George, 9 C. & P. 488 ... 668, 667 
 
 Giles, 5 M. & Sel. 260... 909, 912 
 
 ■ Giles-in-the-Fields, 17 L. J., 
 
 M. C. 33 
 
 11 Q. B. 
 
 - John, 9 C. & P. 40 ... 50, 201 
 
 - Mawgan in Meneage, 8 A. & 
 
 & P. 502 
 
 Pancras, Peake, 219 
 
 7 L. J., 
 I 
 
 ■ 3 Nev. 
 
 907, 910, 
 911, 913 
 Weonard's, 6 C. & P. 582 ... 903, 
 
 - Salisbury, 6 C. & P. 165 .. 
 
 - Salmon, E. & E, 26 
 
 - Salt, 3 F. & F. 834 
 
 ■ Sanchor (Lord), 9 Co. 189 
 
 - Sanders, 9 C. & P. 79 
 
 - Sanderson, 1 F. & F. 37 .. 
 ■ 1 F. & F. 598 ... 
 
 216^ 
 
 - Sandon, 3 B. & B. 640 
 23 L. J., M. C. 129 
 
 - Sandys, C. Si Mar. 347 
 
 2 Mood. C. C. 229 
 
 - Sansome, 1 Den. 645 
 
 19 L. J., M. C. 143 
 
 - Sargent, 10 Cox, 161 
 
 - Sattler, Dears. & B. 625 ... 24, 31, 
 
 - Saundeis, 7 C. & P. 277 
 
 8 C. & P. 266 ... 706, 
 
 6 Dow. & E. 611 
 
 36 L. J., M. C. 87 644, 
 
 L. E., 1 C. C. R. 75 ... 
 
 Plowd. 474 
 
 Plowd. 475 
 
 10 (J. B. 484 
 
 - Savage, 1 0. & K. 76 
 - 5 C. & P. 143 
 
 - Saville, 18 Q. B. 703 
 
 - Sawyer, E. & E. 294 
 -Soaile, 8 C. & K. 211 
 
 2 Den. 281 
 
 2 Den. 613 
 
 20 L. J., M. C. 229 ... 
 
 21 L. J., M. C. 221 
 
 1 M. & Bob. 651 ... 
 
 17 Q. B. 238 
 
 18 Q. B. 773 
 
 - Scalbert, 2 Leach, 620 
 
 - Schlesinger, 17 L. J., M. C. 
 
 29, 67, 
 
 . 178, 
 
 178, 
 
 178, 
 
 29 !!! 
 
 10 Q. B. 670 ... 
 
 - Schmidt, 36 L. J., M. C. 94 
 L. B., 1 C. C. B. 16 
 
 - Scott, 3 Burr. 1262 
 
 ^Dears. &B. 47 
 
 2 East, P. C 665 ... 
 
 1 Leach, 404 
 
 25 L. J., M. C. 128 
 
 B. & E. 13 
 
 ■ E. &E. 416. 
 
 812, 
 
 - Scotton, 13 L. J., M. C. 58 
 5Q. B. 498 
 
 - Scndder, 3 C. & P. 606 ... 
 1 Mood. C. C. 216 
 
 - Scully, 1 C. & P. 319 
 
 - Scutt, 1 Leach, 106 
 2 Leach, 904 
 
 ■ Seaford, 1 W. BL 432 
 
 882 
 SOO* 
 670 
 
 14 
 400 
 644 
 689 
 906 
 905 
 229 
 229 
 228 
 228 
 588 
 626 
 624 
 706 
 
 96 
 685 
 644. 
 685 
 636 
 
 12 
 
 lis 
 
 98 
 ,334 
 
 428 
 
 100 
 
 ,261 
 
 100 
 
 ,261 
 
 100 
 
 228 
 
 251 
 
 100 
 
 168 
 
 812. 
 
 818 
 
 818 
 
 439 
 
 439 
 
 , 841 
 
 230 
 
 . 43 
 
 183 
 
 . 230 
 
 ,823 
 
 , 66 
 
 , 928 
 
 , 928 
 
 , 712 
 
 . 712 
 
 635 
 
 382 
 
 882 
 
 111 
 
Table of Cases. 
 
 Ivii 
 
 B. 11. Scaile, 1 M. & Rob. 75 ... 
 —^ Seberg, L. E., 1 C. 0. K. 264 
 
 PAGE 
 
 ... 19 
 
 - Sedley, 1 Keb. 620 
 
 1 Sid. 168 
 
 10 St. Tr. App. 93 
 
 - 2 Str. 791 , 
 
 - Sefton, B. & E. ! 
 
 - Sell, 9 0. & P. 846 
 
 - SelUs, 1 Mood. C. C. 860 .. 
 
 - Semple, 2 East, P. C. 691. 
 - 1 Leach, 420 
 
 Senior, 1 Mood. 0. C. 846 
 
 Sergeant, Ey. & M. 362 .. 
 
 Serjeant, 1 Sid. 414 
 
 Sermon, 1 Burr. 616, 643 ., 
 
 Serva, 2 0. &K 63 ... 
 
 Seton, 7 T. E. 373 
 
 Seward, 1 A. & E. 706 
 
 3 L. J., M. C. 103... 
 
 Add, Ixvii 
 ... 920 
 ... 920 
 ... 920 
 ... 778 
 ... 496 
 ... 139 
 ... 626 
 ... 337 
 ... 337 
 626, 628 
 ... 276 
 ... 77 
 ... 91 
 67,270,286 
 ... 97 
 938, 939 
 )38, 989, 
 940 
 
 - SliaftesburyCBarlof), 8 St. Tr. 817. . 280 
 
 - Shakespeare, 10 East, 83 ... 46, 203, 321 
 
 - Sharman, Bears. 286 699 
 
 ) L. J., M. C. 61 ... 699 
 
 - Sharpe, 8 C. & P. 436 
 
 Dears. 416 
 
 Dears. &B. 160 .. 
 
 26 L. J., M. C. 47 
 
 - 1 Mood. C. C. 126 
 
 - Sharpies, 2 East, P. C. 679 
 
 1 Leach, 
 
 - 4 T. K. 777 
 
 ... 446 
 
 ... 887 
 
 .. 4 
 ,. 103 
 ,. 421 
 
 - Sharpness, 2 T. E. 47 
 
 - Sharwln, 1 East, P. C. 421 
 
 - Shaw, 6 Dow. & By. 154 ... 
 
 12 East, 479 239 
 
 L. & C. 679 ... 288, 815, 816, 
 
 822, 826 
 
 34 L. J., M. C. 169 ... 288,815, 
 
 816, 822, 826 
 , 660 
 
 87 L. J., M. C. 112 . 
 
 — - — - L. E., 1 C. C. B. 145 
 E. &E. 626 
 
 - Shawe, 5 M. Ac Sel. 403 ... 
 
 - Sheard, 7 C. & P. 846 
 -2Mood.C. C. 13... 
 
 Sheen, 2 C. & P. 634 
 
 Sheering, 7 C. & P. 440 
 
 Sheffield Canal Company, 19 L. J, 
 
 M. C. 44 
 
 240,808 
 ... 29 
 ... 666 
 ... 665 
 
 133, 134 
 294 
 
 913 
 
 Shellard, 9 0. & P. 277 
 
 Shelly, 1 Leach, 840, n. 
 
 Shepherd, 7 C. & P. 679 . 
 
 - 9 C. & P. 121 
 
 - 13 Q. B. 
 
 913 
 
 11 Cox, 326 
 
 Dears. 606 
 
 L. & C. 147 ... 
 
 26 L. J., M. C. 62 
 
 • 31 L. J., M. C. 102 
 
 87 L. J., M. G. 46 
 
 L. E., 1 C. C. E. 118 
 
 - Sheppard, 11 Cox, 302 
 
 1 Leach, 101 .. 
 
 1 Leach, 226 . . 
 
 E. & E. 169 ... 
 
 ■ Sheridan, 1 East, P. C. 438 
 
 210, 941 
 ... 867 
 ... 226 
 ... 888 
 ... 944 
 ... 8S1 
 
 . 862 
 
 -Sherlock, 36 L. J., M. C. 
 L. E., 1 C. C. E. 20 
 
 - Sherman, Cas. temp. Hardw. t 
 
 - Sherrington, 1 Leach, 613 
 
 - Sherwin, 1 East, P. C. 421 
 
 - Sherwood, 1 C. & K. 666 .. 
 
 Dears. & B. 261 
 
 26 L. J., M. 0. 81 
 
 - SMckle, 38 L. J., M. C. 21 
 
 623 
 163, 168 
 662, 681 
 237, 667 
 ... 707 
 ... 685 
 ... 685 
 )3... 274 
 46, 323 
 ... 421 
 ... 688 
 ... 474 
 ... 474 
 ... 319 
 
 PAGE 
 
 '. Shickle, L. E., 1 C. C. E. 168 ... 319 
 
 - Shields, 28 St. Tr, 414 168 
 
 - Shott, 3 C, & K. 206 ... 73, 710 
 
 - Shrimpton, 2 Den, 319 ... 218, 964, 965 
 21 L. J., M. C. 87 ... 218, 
 
 964, 966 
 ... 568 
 
 143, 964 
 
 36... 143, 
 964 
 ... 723 
 ... 722 
 76,296 
 ... 34 
 ... 816 
 ... 816 
 
 233, 256 
 ... 416 
 ... 414 
 ... 885 
 ... 624 
 ... 419 
 ... 346 
 ... 419 
 
 - Shukard, B. & E. 200 
 
 - Shuttleworth, 2 Den. 351 ... 
 21 L. J., M. C. 
 
 - Sidney, 3 St. Tr. 798 
 - 3 St. Tr. 807 
 
 - SimmondB, 1 C. & P. 84 
 1 Mood. 0. 0. 
 
 - Simmons, Bell, 168 
 28 L. J., M. C. 183 
 
 - Simons, 6 C. & P. 540 ... 
 2 East, P. C. 712 ... 
 
 -2East, P. 0. 731... 
 
 - Simonsto, 1 C. & K. 164 , 
 
 - Simpson, C. & Mar. 669 ... 
 
 — . Dears. 621 
 
 Kel. 31 
 
 24 L. J., M. C. 7 
 
 1 Mood. C. C. 410 
 
 - Sims, Tidd's N. Prac. 64 ... 
 
 - Skeen, BeU, 97 
 
 28 L. J., M. C. 91 ... 
 
 - Skeet, 4 F. & r. 931 
 
 - Skelton, 3 C. & K. 119 ... 
 
 - Skerrit, 2 C. & P. 427 
 
 - Slaney, 6 C. & P. 213 ... 
 
 - Slaughter, 4 C. & P. 664, n. 
 
 - Sleeman, Dears, 269 
 
 23 L. J., M. C. 19 
 
 -Sleep, 9 Cox, 559 
 
 L. & 0. 44 
 
 30 L. J., M. C. 170... 
 
 - Sloggett, Dears. 666 
 25 L. J., M. C. 93 
 
 - Small, 8 C. & P. 46 
 
 - Smith, 8 B. & C. 341 
 
 1 C. & K. 423 
 
 2 C. & K. 207 
 
 2 0. & K. 882 
 
 2 C. & P. 449 
 
 2 C. & P. 633 
 
 3 C. & P. 412 
 
 8 C. & P. 413 
 
 4C. &P. 411 
 
 4 C. & P. 669 
 
 ... 144 
 857, 460 
 357, 460 
 9,950 
 ... 716 
 ... 755 
 267, 279 
 ... 225 
 ... 226 
 ... 226 
 ... 716 
 ... 793 
 ... 798 
 ... 280 
 ... 230 
 ... 334 
 
 - 7 C. & P. 147 
 -8C. &P. 163 
 
 - 8 C. & P. 173 
 
 - 2 Cox, 283 ... 
 
 - 11 Cox, 210 ... 
 -Dears. 494 ... 
 
 - Deara. 559 ... 
 
 - Dears. 561 ... 
 
 - Dears. & B. 663 
 
 - Dears. & B. 666 
 
 - 1 Den. 79 ... 
 -IDen. 510 ... 
 -1 Den. 612 ... 
 
 - 2 Den. 449 ... 
 
 - 2 Doug. 441 ... 
 
 - 2 East, P. C, 
 
 - 1 r. & F. 36 
 
 - 4 F. & F. 1066 
 
 - Fost. 242 ... 
 -1 Holt, 614 ... 
 
 - L. & C. 131 ... 
 -L. &C. 168... 
 -L. &C. 607 .. 
 
 - L. & C. 607, 626 . 
 
 - 19 L. J., M. C. 80 ., 
 -21L. J., M. 0.111., 
 
 ... 342, 349 
 
 235 
 
 424 
 
 1, 694 
 
 670 
 
 70 
 
 76 
 
 670 
 
 616, 516, 633, 
 536 
 
 40 
 
 624 
 
 665 
 
 953 
 
 ... 638, 656 
 ... 486, 437 
 ... 650, 653 
 
 373 
 
 28 
 ..'. 565, 600 
 
 581 
 
 424 
 
 184 
 
 ... 372, 416 
 
 .496 
 
 .. 491 
 
 ... 252 
 ... 4 
 ... 589 
 ... 223 
 ... 625 
 ... 424 
 372, 410 
 
Iviii 
 
 Table of Cases. 
 
 PAGE 
 
 K. 0. amith, 24 L. J., M. C. 135 . . 486, 437 
 
 25 L. J., M. C. 29 ... 650, 653 
 
 25 L. J., M. C. 31 373 
 
 27 L. J,, M. C. 226... 666, 600 
 
 31 L. J., M. C. 164 689 
 
 34 L. J., M. C. 1.53 223 
 
 34 L. J., M. C. 162 626 
 
 37 L. J , M, C. 6 816 
 
 39 L. J., M. C. 112...329, 436, 957 
 
 -L. R„1C. C.R. 110 
 
 - L. K., 1 C. C. K. 266 ., 
 
 - 1 Mood. C. C. 178 ... 
 
 - 1 Mood. C. C. 289 ... 
 
 - 1 Mood. C. C. 402 ... 
 -2 Mood. C. C. 295 ... 
 
 - 1 M. & Eob. 256 ... 
 
 - 2 M. & Eob. 109 ... 
 -2M. &Kob. H6 ... 
 - 1 Russ. 646 
 
 - R, Si R. 267 ... 
 
 .. 816 
 
 329, 436, 
 
 967 
 
 402,497 
 
 ... 276 
 
 679 
 
 491 
 
 92 
 .'.'.' 398, 400 
 
 636 
 
 ... 446, 461 
 ... 261, 252 
 418, 867, 928 
 ... 490, 497 
 
 448 
 
 315 
 
 229 
 
 n 251 
 
 113 
 
 Smyth, 6 C. & P. 201 ... 268, 493, 494, 
 
 849 
 
 1 M. & Rob. 156... 268, 493, 
 
 494, 849 
 
 Smytlliea, 2 C. «sK. 878 ... 659,883 
 
 1 Den. 498 . . .26, 669, 883 
 
 - 19 L J., M. C. 81...659, : 
 
 B. & B. 339 ... 
 
 R. & E. 368 ... 
 
 — R. &B. 417... 
 
 R &R. 616... 
 
 By. & M. 296 
 
 1 Stark. 242 
 
 2 Stark. 211 
 
 - 7 T. E. 80 
 
 - Snell, 2 M. & Rob. 44 
 
 - SneUlng, Deare. 219 
 23 L. J., M. C. 
 
 - Snow, 1 East, P. C. 245 
 - 1 Leach, 151 
 
 - Snowley, 4 C. & P. 390 
 
 - Soares, B. & E. 35 .. 
 
 - Soloman, Ey. & M. 262 
 
 - Solomona, R. S M. 292 ... 
 • Somerton, 7 B. ft C. 463 ... 
 
 - Somerville, 1 And. 104 ... 
 
 - Soper, 3 B. 8r C. 867 
 
 - Souter, 2 Stark. N. P. C. 45 
 
 - Southampton, 18 Q. B. 841 
 
 - Southern, E. & R. 444 
 ■ Southey, 4 P. 8i P. 864 ... 
 
 - Spalding, C. & Mar. 668 ... 
 
 - Sparling, 1 Str. 498 
 
 - Sparrow, Bell, 298 
 30 L. J., M. C. 48 
 
 - 2 T. E. 198 
 
 716 
 685 
 685 
 
 630 
 
 ... 680 
 
 463 
 
 ,. 8, 669, 948 
 ... 820 
 .. 3 
 65, 445 
 ... 722 
 ... 66 
 ... 92 
 ... 916 
 ... 928 
 ... 18 
 
 • Spear, 2 East, P C. 668 
 - 2 Leach, i " 
 
 - Spearing, E. & E. 260 
 
 - Spencer, 1 C. S K. 169 .. 
 
 1 C. & P. 260 .. 
 
 8 C. & P. 420 .. 
 
 7C. &P. 776 .. 
 
 10 Cox, 625 
 
 — • Dears. & B. 131 .. 
 
 8 Dowl. 127 
 
 2 East, P. C. 712.. 
 
 26 L. J., M. C. 16 
 
 — • E. & E. 299 
 
 Ey. & M. 97 
 
 - Spicer, 1 C. & K. 699 
 - 1 Den. 82 
 
 615,828 
 ... 57 
 ... 668 
 ... 668 
 ... 116 
 ...41, 343, 848 
 ...41,343,348 
 319 
 
 ... 245 
 
 ... 476 
 
 ... 226 
 
 ... 628 
 
 ... 619 
 
 .. 416 
 ... 619 
 ... 448 
 
 244 
 
 ...61,201,3,50 
 
 ...61; 201, S.W 
 
 627 
 
 - Spiller, 5 C. & P. 333 
 
 - SpUling, 2 M. & Bob, 107.., 
 
 - SpiUbury, 7 C. & P. 187 ... 222, 227 
 
 - Sponsonby, 2 Bast, P. C. 996, 997... 664 
 
 - Spragg, 2 Burr. 993 941 
 
 E. V. Spriggs, 1 M. & Eob. 367... 
 
 Squire, E. & E. 349 
 
 1 Buss. 426 
 
 Squires, 1 Russ. 16 
 
 Stainall, 1 F. & P. 363 ... 
 
 Stainer, 39 L. J., M. C. 64 
 
 L. B., 1 C. C. B. 280 
 
 Stallion, 1 Mood. C. C. 398 
 
 Stanbury, L. & C. 128 ... 
 
 - 31 L. J., M. C. 88 
 
 PAGE 
 
 497, 499 
 ... 446 
 ... 624 
 ... 23 
 ... 904 
 ... 449 
 ... 449 
 
 609, 610 
 25,469 
 26, 469 
 ... 305 
 , 210, 949 
 ... 9 
 ... 300 
 ... 895 
 ... 895 
 ... 136 
 ... 705 ' 
 ... 306 
 ... 110 
 41, 321 
 ... 632 
 ... 942 
 17, 141 
 ... 942 
 
 - Stephens, 35 L. J., Q. B. 251. ..892, 902 
 L. R , 1 Q. B. 702...892, 902 
 
 - Stephenson, L. & C. 165 249 
 
 -31 L. J.,M. C. 147... 249 
 
 667, 676 
 ... U 
 
 813,823 
 64, 66 
 
 ... 665 
 98, 163 
 60, 903 
 
 110,113 
 ... 414 
 
 Stanclifle, 11 Cox, 318 
 
 Standley, B. & B. 806 
 
 1 Buss. 24 
 
 Stannard, 7 C. & P. 673 ... 
 
 L. & C. 349 
 
 33 L. J., M. C. 61 
 
 Stanton, 5 Cox, 824 
 
 1 C. & K. 415 ... 
 
 -7C. &P. 481 ... 
 
 - Staples, Andr. 228 . 
 
 - Statham, 1 Leach, 366 
 
 - Steadman, Post. 292 
 
 - Steel, C. & Mar. 837 
 1 Leach, 451 
 
 - 2 Mood. C. C. 246 
 
 - Sterling, 1 Leach, 117 
 
 - Sterne, 1 Leach, 478 
 
 - Stevens, 6 B. & C. 246 ... 
 5 East, 244 
 
 ■ 1 Mood. C. C. 409 
 
 - Stevenson, 2 Leach, 646 
 
 - Steventon, 1 0. & K. 66 ... 
 
 - Steward, 2 B. & Ad. 12 ... 
 2 East, P. C. 702 
 
 - Stewart, 1 Cox, 174 
 B. & B. 288 
 
 - R. & R. i 
 
 - Stiginani, 10 Cox, 662 
 
 - Stock, 2 Leach, 1016 
 
 1 Mood. C. C. 87 
 
 E. & E. 186 ... 
 
 - 2 Taunt. 389 
 
 - Stocker, 1 Salk. 342 
 
 - Stockley, 1 East, P. C. 310 
 
 2G. &D. 728 .. 
 
 11 L. J., M. C. 106 
 
 8 Q. B. 288 
 
 - Stokes, 2 C. & K. 636 
 3C. & K. 189 
 
 6 C. & P. 148 
 
 6 C. & P. 151 
 
 1 Den. 807 
 
 7.58 
 
 7, 8, 669, 948 
 
 277 
 
 ... 492,494 
 ... 342, 349 
 491, 492, 494 
 494 
 
 .. 63 
 640, 646 
 
 76,91 
 
 76,91 
 76,91 
 ... 64 
 ... 144 
 ... 806 
 ... 169 
 64,144 
 ... 686 
 ... 837 
 ... 816 
 ... 686 
 ... 238i 
 ... 400 
 ... 210 
 
 - Stone, 2 C. & K. 
 
 4 C. & P. 871 
 
 Dears. 251 . 
 
 — 1 Den. 181 . 
 
 Dy. 204 
 
 1 Leach, 834 
 
 6 St. Tr. 528 
 
 - 6 T. E. 627 ... 722, 728, 728, 729 
 
 . ... 162 
 
 ... 816 
 
 ... 964 
 
 ... 4 
 
 ... 782 
 
 ... 477 
 
 ... 53 
 
 ... 37 
 
 ... 92 
 
 ... 37 
 
 70, 664 
 
 ... 939 
 
 ... 91, 109 
 
 93, 163, 169 
 
 6 T. B. 530 
 
 23 L. J., M. C. 14 .. 
 
 - Stonnell, 1 Cox, 142 
 -Storr, 3 Burr. 1698 .. 
 
 - Story, Dy. 298 
 
 E. & B. 81 
 
 - Stoughton, 2 Str. 900 
 
 - Stowell, Dav. & M. 189 
 
 1 Dowl N. S. 320 
 
 6 Q. B. 44 
 
 - Strange, 8 C. & P. 172 .. 
 
 - Strattnn, 1 Camp. 649, n. 
 1 Dougl. 239, 240 
 
 - Streek, 2 C. & P. 413 ... 
 
Table of Cases. 
 
 lix 
 
 E. D. stretch, 3 A. & E. C03 ... 
 
 Stringer, 1 C. & K. 188 . . . 
 
 2 Mood. C. C. 261 
 
 Strlpp, Dears. 648 
 
 25 L. J., M. C. 109 ... 
 
 Stroner, 1 C. & K. 650 ... 
 
 Stroud, 1 (;. & K. 187 
 
 6C. &P. 686 
 
 2 Mood. C. C. 270 ... 
 
 - Stabbs, Dears. 555 
 
 -25L. J., M. C. 16 , 
 
 ■ Studd, 10 Cox, 268 ... 
 - Sturge, 3 E. & B. 784 
 
 28 L. J., M. C. 172 , 
 
 PAGE 
 ... 291 
 
 ... 421 
 415, 421 
 ... 229 
 ... 229 
 ... 297 
 ... 39 
 ... 350 
 
 184, 272 
 
 . 184,272 
 
 ... 184 
 
 207, 904, 
 
 906 
 
 207, 904, 
 
 906 
 
 . 344, 347 
 
 ... 160 
 
 ... 666 
 
 ... 639 
 
 768, 772, 
 
 774 
 
 8 L. J., M. C. 3 150 
 
 Summers, 2 East, P.O. 786 ...212 
 
 38 L. J., M. C. 62 ... 966 
 
 L. E., 1 C. C. K. 182 ... 966 
 
 Suter, 10 Cox, 677 476 
 
 Sutton, 3 A. & E. 697 ... 17, 913, 915 
 
 8 A. & B. 616 910 
 
 6 B. & Ad. 52 ... 179, 908 
 
 8 3. &C. 417 168 
 
 8 C. & P. 291 
 
 4 L. J., K. B. 215 ., 
 
 2 L. J., M. C. 76 .. 
 
 4 M. & Sel. 632 ., 
 
 2 Mood. C. C. 29 
 
 2 NeT. & M. 57 .., 
 
 6 Nev & M. 363 ... 
 
 2 Str. 1074 
 
 Swatkms, 4 C. & P. 648 ... 
 
 Sweeting, 1 East, P. C. 457 
 
 - Sullens, 1 Mood. C. C. 129 
 
 - SuUlvan, 8 A. & E. 831 ... 
 
 C. & Mar. 209 ... 
 
 7 C. & P. 641 ... 
 
 11 Cox, 44, 46 ... 
 
 - SwindaU, 2 C. & K. 230 
 
 - Swinnerton, Car. h M. 593 
 
 - Szudursliie, 1 Mood. C. C. 429 
 
 913, 916 
 
 179, 908 
 
 212, 239, 262 
 
 361 
 
 908 
 
 17, 913 
 
 760 
 
 619 
 
 ... 701 
 9, 11, 687, 
 949 
 232 
 
 - Tacey, R & R. 462 
 
 - TafEs. 4 Cox, 169 ... 
 -Taft, 1 Leacb, 172 ... 
 
 - Talt, 2 F. & P. 658 
 
 - Tandy, 2 Leach, 836 
 
 - Tannet, E. & R. 361 
 
 - Taplin, 2 East, P. C. 712 ... 
 -Tarrant, 4 Burr. 2106 
 
 - Tattersal, 1 H". E. 98 
 - 1 N. K. 94, K, 
 
 666 
 528, 629 
 
 - Taylor, 3 B. & C. 602, 612 ., 
 
 3 Bos. ft. P. 596 ... 
 
 ■ 6 Burr. 2793 
 . 1 Camp. 404 
 
 ■ 1 C. & K. 213 
 ■5C. &P. 301 
 . 8 C. & P. 726 
 
 8C. &P. 733 
 
 ■ 10 Cox, 644 
 
 - 11 Cox, 340 
 
 • 6 D. & E. 422 
 
 ■ 1 Leach, 47 
 
 ■ 1 Leach, 49 
 
 . 1 Leach, 214 
 
 ■ 1 Leach, 366 
 1 Leach, 360 
 
 • 38 L. J., M. C. 106 . 
 
 ■ L. R, 1 C. C. R. 194. 
 
 ■ Peake, 11 
 
 ■ E. & E, 68 
 
 -R&R. 418 
 
 662 
 
 261 
 
 756 
 
 46, 203, 321, 
 
 612 
 
 ... 414 
 
 112, 988 
 
 ... 215 
 
 ... 570 
 
 128, 132, 
 
 895 
 
 ... 35 
 
 ... 629 
 
 ... 821 
 
 567, 581 
 
 ... 292 
 
 ... 225 
 ... 450 
 ... 93 
 66, 128 
 ... 938 
 ... 609 
 ... 662 
 41, 321 
 ... 10 
 211, 668 
 211, 668 
 ... 270 
 ... 36 
 ... 402 
 
 E. u. Taylor, 2 Stark. SI. 143 ... 
 
 2 Sir. 849, 1246 ... 
 
 Vent. 293 
 
 Teague, 2 East, P. C. 979 ... 
 
 . E. & E. 33 
 
 - 2 Euss. 341 
 
 - Teal, 11 East, 309 
 13 East, 4 
 
 - Telicote, 2 Stark. 483 
 
 - Templar, 1 Nev. & P. 91 . 
 
 - Testick, 1 East, 181, n. . 
 
 - Tew, Dears. 429 ... 
 24 L. J., M. C. 62 
 
 Tewkesbury (Mayor, &c., of), 37 
 
 L. J., Q. B. 288 
 
 L. E., 
 
 PAGE 
 
 ... 777 
 ... 61 
 ... 777 
 
 267, 661 
 ... 661 
 ... 267 
 
 278, 281 
 ... 103 
 ... 282 
 ... 97 
 ... 561 
 75 
 76 
 
 238 
 
 3 Q. B. 629 
 
 Thallman, L. & C. 328 ... 
 
 - S3 L. J., M. C. 68 
 
 - Theving, 3 St. Tr. 79, 90 
 
 - Thomas, 2 C. & K. 806 
 
 4 C. & P. 287 
 
 6 C. & P. 863 
 
 7 C. & P. 346 
 
 7 C. & P. 817 
 
 7 C. & P. 861 
 
 9 C. 4, P. 741 
 
 Car. Sup. 295 
 
 11 Cox, 636 ., 
 
 3 D. & E. 621 
 
 1 East, P. C. 417 
 
 2 East, P. C. 781 
 
 1 Leacb, 830 
 
 2 Leach, 637 
 
 L. & C. 313 
 
 38 L. J., M. C. 22 
 
 2 Mood C. C. 16 
 
 4 M. & Sel. 442 ... 
 
 - Thompkins, 2 B. & Ad. 287 
 
 - Thompson, 1 Den. 649 
 
 2 East, P. C. 498 
 
 8 P. & F. 824 ... 
 
 1 Leach, 291 ... 
 
 1 Leach, 838 ... 
 
 2 Leach, 771 ... 
 
 2 Leach, 910 ... 
 
 L. & C. 226 ... 
 
 L. & C. 283 ... 
 
 20 L. J., M. C. 183 
 
 .. 238 
 921 
 921 
 722 
 
 821 
 
 626 
 
 224 
 
 -. 226 
 
 ...18,255,633 
 687 
 
 876, 876, 877 
 
 91 
 
 ... 420 
 ... 47 
 ... 420 
 ... 282 
 ... 794 
 ... 794 
 ... 687 
 ... 97 
 ... 102 
 ... 342 
 ... 491 
 ... 276 
 .. 224 
 ... 402 
 ... 491 
 62, 561 
 ... 344 
 ... 472 
 ... 164, 
 865, 942 
 ... 344 
 ... 472 
 
 32 L. J., M. C. 63 
 32 L. J., M. O. 67 
 
 ■ 1 Mood. C. C. 78 ... 345, 419 
 
 ■ 1 Mood. C. C. 80 ... 632, 
 641, 696 
 
 ... 622 
 ... 616 
 
 1 Mood. C. C. 139 
 
 2 M. & Rob. 366 
 • 16 Q. B. 832... 164, 866, 942 
 
 2 Huss. 174 
 
 8 Tyr. 63 
 
 - Thorley, 1 Mood. C C. 343 
 
 - Thorn, C. & Mar. 206 
 
 2 Mood. C. C. 210 ... 
 
 - Thornhill, 8 C. & P. 675 ... 
 
 - Thornton, 4 Bxch. 820 ... 
 
 19 L. J., M. C. 113 
 
 1 Mood. C. C. 27... 
 
 - TSorp, Dears. & B. 662 ... 
 • 27 L. J., M. C. 64 ... 
 
 84 
 
 90 
 
 ... 463 
 
 683, 687 
 
 683, 587 
 
 231, 297 
 
 ... 103 
 
 ... 103 
 
 227, 230 
 
 ... 462 
 
 ... 452 
 
 ... 242 
 
 ... 4 
 
 ... 4 
 
 326, 330, 
 
 331 
 
 1 Den. 388 ... 326, 330 
 
 18 L. J., M. C. 140 ... 825, 
 
 330, 331 
 - Tiemey, K. & E. 74 784 
 
 - Thring, 5 C. & P. 607 
 
 - Thrower, 3 Keble, 28 
 1 Vent. 208 
 
 - Thurbom, 2 C. 8l K. 831 
 
Ix 
 
 Table of Cases. 
 
 E. t). TiUey, 2 Leach, 662 
 
 Tilson, 1 F. & F. 64 
 
 Timmlns, Bell, 276 
 
 7 C. & P. 499 .. 
 
 80 L. J., M. C. 45 
 
 FAOE 
 
 ... 884 
 ... 702 
 ... 637 
 ... 702 
 
 891, 901 
 ... 902 
 
 891, 901, 
 902 
 
 891, 901 
 Tinkler, 1 East, P. C. 364, 356 ... 228 
 
 - Tindall, 6 A. & E. 143 
 
 6 A. & E. 162 ., 
 
 6 L. J., M. C. 97 
 
 - 1 Nev. Si P. 719 . 
 
 Tippett, Euss. & Ey. 509 ... 
 
 Tlppen, 2 Sali. 494 
 
 Tippin, C. & Mar. 646 
 
 lite, L. &C. 29 ... 
 
 30 L. J., M. C. 142 
 
 Tivey, 1 C. & K. 704 
 
 - 1 Den. f- 
 
 - Toakley, 10 Cox, 406 
 
 - Todd, 2 East, P. C. 658 ... 
 
 - Tollree, 1 Mood. C. C. 243 
 
 - Tollett, C. & Mar. 112 ... 
 
 - Tomlinson, 7 C. & P. 183... 
 36 L. J., M. C. 41 
 
 - L. E., 1 C. C. K. 4S 
 
 - Tong, Kel. 17 
 Kel. 17, 18 
 
 - Tongue, Bell, 289 
 
 30 L. J., M. C. 49 
 
 ■ Toote, 1 Bast, P. C. 98 ... 
 
 - Toole, 11 Cox, 75 
 
 - Topham, 4 T. E. 127 
 
 - Topping, Dears. 647 
 26 L. J., M. C. 72 
 
 - Toshack, 1 Den. 492 
 
 - Tottenham, 7 C. & P. 237 
 - 1 Mood. C. C. 461 
 
 ... 40 
 
 ... 447 
 ... 447 
 ... 547 
 ... 647 
 ... 110 
 41, 321 
 ... 342 
 ... 342 
 ... 688 
 ... 814 
 ... 814 
 ... 722 
 ... 284 
 ... 448 
 ... 448 
 ... 209 
 ... 794 
 ... 858 
 
 - Towle, 2 Marah, 466 
 
 3 Price, 146 
 
 K. &E. 814 
 
 - Townley, Fost. 7, 8 
 ■■ 3 F. & F. 839 ... 
 
 - Townsend, 2 C. & K. 168 ... 
 
 C. & Mar. 178 ... 
 
 lOCox, 3ii6 ... 
 
 1 Den. 167 
 
 Doug. 421 
 
 4 F. & F. 1089... 
 
 2 Saund 160, a. n. 10... 911 
 
 - Train, 2 B. & S. 640 ... 891,899 
 -31L. J., M. C. 169... 891,899 
 
 ... 519 
 ... 619 
 10,72 
 ... 10 
 10,948 
 ... 724 
 ... 18 
 ... 446 
 379, 446 
 816, 816 
 ... 446 
 ... 911 
 816,816 
 
 - TraiEord, 1 B. & Ad. 874 ... 
 
 - Tranter, Post. 292 
 
 IStr. 499 
 
 - Trapsbaw, 1 Leach, 427 
 
 - Travers, Gilb. Ev. 144 
 
 2Str. 700 
 
 - Treasurer of Exeter, 6 Man. & 
 
 Ey. 167 ... 
 289 
 
 Oswestry, 12 Q. B. 
 
 632 
 682 
 495 
 270 
 270 
 
 . 292 
 
 - Trebilcock, Dears. & B. 463 
 - 27 L. J., M. C. 103 
 
 - Treble, E. & E. 164 
 2 Taunt. 328 
 
 - Treheame, 1 Mood. C. C. 298 
 
 - Tremearne, 6 B. & 0. 761 
 - 7 Dowl. & Ey. 684 
 
 - Trenfleld, 1 F. & F. 43 
 
 - Trevener, 2 M. & Eob. 476 
 
 - TriUoe, C. S Mar. 660 ... 
 - 2 Mood. C. C. 
 
 - Trueman, 8 C. & P. 727 ... 
 
 - Trusty, 1 Bast, P. C. 448 ... 
 
 - Trvddyn, 21 L. J., M. C. 108 
 
 - Tuhhy, 6 C. & P. «30 
 
 - Tucker, 4 Burr. 2046 
 
 291 
 ... 826 
 ... 826 
 ... 6«2 
 ... 662 
 ... 60 
 ... 813 
 ... 818 
 ... 667 
 ... 860 
 ... 626 
 ... 626 
 ... 70 
 ... 421 
 ... 914 
 ... 229 
 ... 91 
 
 E. V. Tucker, 1 Mood. C. C. 134 
 
 Tuckwcll, C. Sr Mar. 216 ... 
 
 Turberfleld, L. & 0. 496 ... 
 
 ~ 34 L. J., M. C. 20 
 
 - Turner, 3 B. & C. 160 
 
 2 C. & K. 732 ... 
 
 4 0. & P. 246 ... 
 
 8 C. & P. 766 ... 
 
 Comb. 407, 408 ... 
 
 9 Cox, 146 
 
 13 East, 228 
 
 16 East, 670 
 
 4 F. & F. 339 ... 
 
 1 Leach, 395 
 
 1 Leach, 536 
 
 6 M. & Sel. 205 ... 
 
 1 Mood. C. C. 239 
 
 1 Mood. C. C. 347 
 
 2 Mood. 0. 0. 41... 
 
 2 M. & Bob. 214 ... 
 
 1 Sid. 171 
 
 - Turpln, 2 C. & K. 820 ... 
 
 - Turweston, 20 L. J., M. C. 46 
 16 Q. B. 109 ... 
 
 - Tutchin, Holt, 424 
 6 St. Tr. 632 
 
 - 6 St. Tr. 632, 690 
 
 Twisleton, 1 Le*. 267 
 
 Twyn, Kel. 22 , 
 
 Twj-ning, 2 B. & Aid. 886 
 
 Tyers, E. & E. 402 , 
 
 Tyler, 1 C. & P. 129 
 
 « C. & P. 616 
 
 1 Mood. C. C. 428 .., 
 
 Tylney, 1 Den. 819 
 
 - 18 L. J., M. c. r 
 
 - Tyree, 38 L. J., M. C. 68 
 L. E., 1 C. C. B. 177, 178 ., 
 
 PAGE 
 
 42B, 426, 
 427 
 8,948 
 ... 214 
 ... 214 
 ... 102 
 
 245, 246 
 ... 608 
 ... 715 
 ... 634 
 ... 888 
 ... 939 
 ... 102 
 ... 630 
 ... 496 
 42, 322 
 ... 210 
 
 61, 608, 
 619 
 
 234, 485 
 ... 747 
 ... 25 
 69, 500 
 
 667, 582 
 ... 903 
 ... 903 
 ... 768 
 ... 7G8 
 ... 770 
 ... 702 
 ... 722 
 ... 238 
 ... 444 
 ... 225 
 10, 960 
 ... 854 
 ... 576 
 ... 675 
 
 - Tyson, 11 Oox, 1, 4 
 
 87 L. J., M. C. 7 ... 
 
 - L. E., 1 C. C. E. 107 
 
 - Tfezzell, 3 C. & K. 160 
 
 2 Den. 274 
 
 - 20 L. J., M. C. 192 . 
 
 184, 
 
 449 
 
 ... 817 
 
 ... 817 
 
 ... 817 
 
 926, 928 
 
 926, 928 
 
 926, 928 
 
 United Kingdom Electric Tele- 
 graph Company, 2 B. & S. 647, n. (a) 900 
 - 31 L. J., 
 
 900 
 
 ... 97 
 ... 225 
 ... 905 
 ... 904 
 222, 627 
 134, 600 
 ... 133 
 ... 131 
 ... 35 
 ... 722 
 ... 326 
 ... 929 
 ... 890 
 ... 929 
 ... 890 
 ... 746' 
 ... 745 
 110, 881 
 ... 831 
 
 M. C. 166 
 
 —J- TTnwin, 7 Dowl. 678 
 
 Upohurch, 1 Mood. C. C. 466 
 
 Upper Papworth, 2 East, 413 
 
 Upton, 6 C. & P. 138 
 
 Van ButcheU, 3 C. & P. 629 
 
 Vandercomb, 2 Leach, 708 
 
 - 2 Leach, 712 
 
 - 2 Leach, 716 
 
 - Vane, Kel, 14, 16 
 - Kel. 16 
 
 - Van Muyen, E. & E. 118 ... 
 
 - Vann, 2 Den. 325 
 
 2 Den. 831 
 
 21 L. J., M. C. 39 ... 
 
 - Vantandillo, 4 M. & Sel. 73 
 
 - Varley, 1 East, P. C. 164 ... 
 -2W. Bl. - 
 
 - Vaughan, 4 Burr. 2494 
 
 4 Burr. 2600 
 
 8 C. & P. 276...66, 661, 670, 
 
 688 
 
 Holt, 689 296 
 
 2 Salk. 634 ... 728, 729 
 
 6 St. Tr. 17-39 729 
 
 — - 6 St. Tr. 20 296 
 
 5 St. Tr. 25 233 
 
Table of Cases. 
 
 Ixi 
 
 PAGE 
 
 R. V. Vaughan, 6 St. Tr. 29 ... 288, 724 
 
 Veley, 4 F. & r. 1117 860 
 
 Vorelst, 8 Camp. 482 ... 288, 822 
 
 ViUeneuve, 2 East, P. C. 38a ... 471 
 
 Vincent, 9 0. & P. 91 ... 76, 842 
 
 -2 Den. 464 ...42,207,822 
 
 - 21 L. J., M. C. 109 207,822 
 
 -Virrier, 12A. &E. 317 
 
 9 L. J., M. C. 120 
 
 -4P. SD. 161 
 
 - Vivian, 1 C. & K. >19 
 - 1 Sen. 85 . 
 
 - VodSen, Bears. 229 
 
 28 L. J., M. C. 
 
 ■ Volte, R. & R. 631 ... 
 
 - Von Seberg, 39 L. J., M. C. 
 
 ... 166 
 
 166,820 
 
 819, 820 
 
 ... 584 
 
 ... 584 
 
 ... 166 
 
 ... 166 
 
 208, 217, 650 
 
 7... 
 
 - Vowchurch, 2 C. & K. 31 
 
 - Vyse, 1 Mood. G. C. 218 ... 
 
 - Waddington, 1 B. & C. 26 
 1 East, 167 ... 
 
 - 2 East, P. C. 613 
 
 Add. Ixvii 
 ... 904 
 ... 372 
 111,777 
 96 
 
 ■ Wade, 1 B. & Ad. 861 
 
 1 M. C. C. 86 
 
 Wadsworth, 5 Mod. 18 
 
 Wagstafl, fi. & R. 398 
 
 Walte, 2 East, P. C. 570 
 
 — 1 Leach, 28 ... 
 
 1 Wils. 22 ... 
 
 Wakefield, Lancaster 
 
 1827 
 
 ... 56 
 
 ... 271 
 
 ... 91 
 
 ... 423 
 
 ... 344 
 
 ... 344 
 
 ... 110 
 
 ' 700 
 
 ■ published by Mur- 
 ray, 257 275 
 
 Wafcellng, K. h R. 604 477 
 
 Walford, 8 C. & P. 767 266 
 
 Walkden, 2 C. & K. 918 669 
 
 Walker, 8 Camp. 264 47, 203, 321 
 
 1 C. & P. 320 637 
 
 6 C. & P. 667 469 
 
 3Co. 41, a 52 
 
 Dears. 368 642 
 
 Dears. &B. 600 447 
 
 ■ IF. &r. 634 260 
 
 1 Leach, 97 808 
 
 23 L. J., M. C. 123 
 
 27 L. J,, M. C. 207 
 
 1 Mood. C. C. 165 
 
 • 2 M. & Rob. 212 ... 
 
 2 M. & Rob. 446 ... 
 
 5 Walkley, 4 C. & P. 132 ... 
 
 5 C. & P. 175 
 
 ... 642 
 ... 447 
 316, 364 
 ... 706 
 ... 136 
 ... 439 
 
 224 
 
 .. 666,576 
 
 86, 616, 964r 
 
 968 
 
 -10 Cox, 600 262 
 
 - 17 Ir. Com. Law Rep. 207 262 
 - 2 Mood. C. C. 200 86,616, 
 954, 958 
 ... 611 
 ... 10 
 ... 414 
 ... 345 
 
 - Wall, 2 East, P. C. 953 
 
 - Wallace, C. & Mar. 200 
 
 ■ WaUls, 1 Mood. C. C. 344 
 
 Salk. 384 
 
 Walls, 2 C. & K. 214 
 
 Walsh, 1 Mood, C. C. 14 ... 
 
 1 Mood. C. C. 176 
 
 R. & R. 216 
 
 ■ R. &R. 218 
 
 Walter, 7 C. & P. 267 . . . 
 
 ■ 8 Esp. 21 
 
 Walters, 5 C. & P. 138 ... 
 
 1 Mood. C. C. 13 
 
 • Walton, L. & C. 288 
 
 - 32 L. J., M C. 79 
 
 ... 371 
 ... 344 
 ... 232 
 771,857 
 ... 877 
 ... 405 
 ... 422 
 ,. 422 
 .. 179 
 
 — Wandsworth, 1 B. & Aid. 63 
 
 — Warburton, Mich. T. 1870 (C. C. 
 R.) 938, 939, ^<W. Ixviii 
 
 Ward, 4 A. & E. 384 ... 891, 901, 902 
 
 6 C. & P. 866 ... 241, 242 
 
 -10 Cox, 42 70,864 
 
 10 Cox, 673 169 
 
 W. 
 
 R. D. Ward, 2 P. & r. 19 
 
 6 L. J., K. B. 221 ... 
 
 6 Nev. 4. M. 88 ... 
 
 Wardle, C. & M. 647 
 
 2 East, P. C. 786 
 
 R. & R. 9 
 
 Wardroper, Bell, 249 
 
 Warman, 1 Den. 318 
 
 Warner, 1 Mood. C. C. 380 
 
 Warre, 1 Str. 698 
 
 Warren, 6 C. & P. 335, n. 
 
 1 Russ. 686 
 
 2 Russ. 139 
 
 Warringham, 2 Den. 447 ... 
 
 Warshaner, 7 C. & P. 429 ... 
 
 ■ 1 Mood. C. C. 466 ... 66, 
 
 59, 60, 666, 608 
 
 Wartnaby, 2 A. & E. 435 ... 97 
 
 Warwickshall, 1 Leach, 268 ... 231 
 
 Waters, 2 C. & K. 864 624 
 
 - 1 Den. 366 39, 47, 53, 624 
 
 PAGE 
 
 ... 71 
 
 891,901 
 
 891, 901 
 
 ... 163 
 
 ... 212 
 
 ... 212 
 
 ... 28 
 
 ... 666 
 
 ... 644 
 
 ... 87 
 
 ... 397 
 
 ... 704 
 
 ... 886 
 
 224,225 
 
 ... 66 
 
 18 L. J., M. C. 63 
 
 1 Mood. C. C. 467 
 
 - Watkinson, 2 Str. 1122 ... 
 
 - Watson, 1 Camp. 215 
 
 6 C. & P. 663 ... 
 
 2 Cox, 376 
 
 Dears. & B. 348 ... 
 
 2 East, P. C. 680 
 
 2 Leach, 640 
 
 27 L. J., M. C. 18 
 
 R. &K. 468 
 
 2 Stark. 116 
 
 2 Stark. Jf. P. 184 
 
 2- Stark. 186 
 
 2 Stark. 187 
 
 2 Stark. 140, 141 
 
 2 Stark. 149 
 
 2 Stark. 157 
 
 2 T. B. 199 
 
 1 Wils. 41 
 
 - Watts, 3 Erod. & B. 197 ... 
 
 Dears. 326 
 
 —2 Den. 14 
 
 2 Den. 15 
 
 2 Esp. 675 
 
 L. & C. 339 
 
 19 L. J., M. C. 192 
 
 23 L. J., M. C. 66 
 
 33 L. J., M. C. 68 
 
 Moo. & M. 281 ... 
 
 R. & R. 486 
 
 1 Salk. 357 
 
 - Waully, 1 Mood. C. C. 163 
 
 - Wavell, 1 Mood. C. C. 224 
 
 - Waverton, 2 Den. 341 
 17Q. B. 562 ... 
 
 - Wavertree, 2 M. & Bob. 363 
 
 - Weale, 6 C. & P. 136 
 ■ Webb, 8 B. & B. 228 
 
 8 Burr. 1468 
 
 2 C. & K. 933 
 
 4C. &P. 564 
 
 6 C. & P. 696 
 
 11 Cox, 188 ... 
 
 1 Den. 338 ... 
 
 14 Bast, 406 .. 
 
 4 P. & r. 862 
 
 18 L. J., M. C. 39 
 
 1 Mood. C. C. 481 
 
 IM. & Rob. 405 
 
 R &R. 405... 
 
 2 Str. 1068 ... 
 
 - 1 W. Bl. 460 
 
 .. 624 
 ... 89 
 ... 276 
 35, 770 
 ... 297 
 ... 921 
 478,482 
 ... 335 
 ... 335 
 473,482 
 ... 808 
 ... 298 
 ... 214 
 
 277 
 
 723 
 
 ... 234 
 .. 278,280 
 
 280 
 
 111, 112, 839 
 
 112 
 
 563 
 
 318 
 
 , 848 
 
 451 
 
 ... 901 
 ... 261 
 848,451 
 ... 318 
 ... 261 
 ... 891 
 562, 663 
 ... 909 
 ... 885 
 ... 481 
 ... 63 
 ... 63 
 ... 910 
 
 92 
 
 ,.. 920, 921 
 
 229 
 
 272 
 
 272 
 184, 920, 921 
 
 112 
 
 160 
 
 ... 920 
 ... 326,360 
 
 628 
 
 562 
 
 - Webster, 1 F. & F. 616 .. 
 
 L. & C. 77 
 
 31 L. J., M. C. 17 
 
 3 T. R, 388 
 
 ... 92 
 ... 822 
 ,41,207,329 
 41, 329 
 ... 114 
 d 
 
Ixii 
 
 Table of Casei. 
 
 E. V. Wedderbourne, Fost. 22 ... 
 
 Wedge, 6 C. & P. 298 
 
 Weeks, 10 Cox, 224 
 
 ■ L. St C. 18 
 
 80 L. J., M. C. 141 
 
 Weir, 1 B. & C. 261 
 
 Welbonrn, 1 East, P. C. 368 
 
 Welch, 2 C. & K. 296 
 
 1 Den. 199 
 
 2 Den. 78 
 
 - 20 L. J., M. C. 101 
 
 - WeUand, B. & E. 494 
 
 - Wells, 1 P. & F. 109 
 - Moo. & M. I 
 
 - Welman, Dears. 188 ... 
 
 - Wellman, 22 L. J., M. C. 118 
 -Welsh, 11 Cox, 386 
 
 Leaeh, 364 
 
 I Mood. C. C. 17fi ... 
 
 - MS. 1828 
 
 - Weltje, 2 Camp. 142 
 
 - Welton, 9 Cox, 297 
 
 - Wenbom, 6 Jur. 267 
 
 - Wenham, 10 Cox, 222 
 
 - Went, E. & E. 369 
 
 - Wesley, 1 F. Si P. 628 ... 
 
 - West, 2 C. & K. 496 
 
 2C. &K. 784 
 
 2 Deacon, C. L. 1618 
 
 Dears. 402 
 
 Dears. & B. 109 ... 
 
 Dears. & B. 676 ... 
 
 1 Den. 268 
 
 24 L. J., M. C. 4 ... 
 
 - 27 L. J., M. C. 227 
 
 PAGE 
 
 ... 723 
 
 ... 709 
 ... 841 
 
 216, 761 
 
 216,761 
 ... 642 
 ... 221 
 ... 458 
 ... 453 
 ... 763 
 ... 763 
 62, 360 
 ... 340 
 ... 273 
 ... 478 
 ... 478 
 ... 633 
 ... 746 
 ... 131 
 ... 133 
 ... 840 
 
 208, 260 
 ... 162 
 
 269, 484 
 ... 44 
 ... 644 
 
 686, 688 
 ... 625 
 
 ... 478 
 686, 688 
 ... 331 
 ... 478 
 ... 816 
 ... 166 
 . 208, 816 
 
 - Westbeer, 1 Leach, 12 
 2 Str. 1138 
 
 - Western, 37 L. J., M. C. 81 
 L. E., 1 C. C. E. 122...208, 816 
 
 - Westley, Bell, 193 ...66,63,207,218, 
 
 816 
 
 11 Cox, 139 137 
 
 29 L. J., M. C. 35 ... 207, 213, 
 
 816 
 
 - Westmark, 2 M. & Bob 306 906, 912 
 
 - West B. o( Yorkshire, 4 B. & Aid. 
 
 23 909 
 
 - Weston, 1 Str. 623 68,91 
 
 - Westwood, E. & E. 496 ... 406, 490 
 
 - Wetherell, E. & E. 381 ... 78, 94 
 
 - Whalley, 7 Dowl. & L. 817 ... 121 
 - 19 L. J., Q. B. 14 
 
 - Wheater, 2 Mood. C. C. 45 
 - 2 Mood. C. C. 61 ... 
 
 - Wheatland, 8 C. & P. i 
 
 - Wheeldon, 8 C. & P. 747 ... 
 
 - Wheeler, C. Crira. Ct. 1862 
 7 C. & P. 470 ... 
 
 - Wheeley, 8 C. & P. 251 ... 
 
 - Wheelings, 1 Leach, 311, n. 
 
 - Whiley, 1 C. & K. 160 ... 
 
 2 Leach, 983 
 
 2 Mood. C. C. 186 
 
 - E, & E. 90 
 
 - White, 1 Burr, i 
 Cald. 183 
 
 - 1 Camp. 369 
 
 — 3 Camp. 98 
 
 2 C. & K. 404 
 
 4 C. & P. 46 
 
 8 C. & P. 742 
 
 — 9C. &P. 282 
 
 — 9 C. & P. 344 
 
 — Dears. 203 
 
 — IDen. 208 
 
 — 3 E. & E. 137 
 
 — 22 li. J., M. C. 183 
 
 ... 121 
 
 ... 230 
 ... 230 
 288, 820, 
 822 
 ... 501 
 ... 142 
 ... 71 
 ... 229 
 
 233, 234 
 26, 888 
 
 662, 764 
 ... 883 
 ... 662 
 ... 891 
 ... 835 
 
 111, 889 
 ... 160 
 ... 563 
 ... 460 
 ... 460 
 ... 687 
 ... 343 
 ... 320 
 ... 663 
 ... 118 
 ... 820 
 
 PAGE 
 
 B. o. White, 29 L. J., Q. B. 257 118 
 
 1 Leach, 262 ... 203,402 
 
 1 Leach, 430 ... 271, 286 
 
 2 Mood. C. C. 91 450 
 
 1 Phil. Ev. 406 227 
 
 E. & E. 99 9, 960 
 
 E. & K. 608 233 
 
 Whitehead, 3 C. & K. 202 ... 628 
 
 4 C. & P. 322, n. ... 76 
 
 9 C. & P. 429 46 
 
 36 L. J., M. C. 186 ... 299 
 
 L. K , 1 C. C. E. 38 ... 299 
 
 2 Mood. C. C. 181 ... 46 
 
 1 Salk. 371 64 
 
 Whitehoase, Dears. 1 ... 178, 181 
 
 Whiteman, Dears. 863 ... 362, 550 
 
 - 33 L. J., M. C. 120 362, 660 
 
 - Whiting, 7 C. & P. 771 
 
 - Whitney, 7 C. & P. ' 
 
 - 4 L. J., M. C. 86 
 - 1 Mood. C. C. 3 
 
 - Whittaker, 2 C. 8s K. f 
 
 1 Den. 310 
 
 - 17 L. J., M. C. 127 
 
 , 300 
 
 907, 910, 
 
 911,916 
 
 ... 916 
 
 ... 647 
 
 ... 928 
 
 - Whittingham, 9 C. & P. 234 
 
 - Whitworth, 1 F. & F. """ 
 
 - Wicker, 18 Jur. 262 
 
 - Wictes, B. & E. 149 
 
 - Wickham, 10 A. & B. 34 .., 
 8 L. J., M. C. 87 
 
 - 2 Per. & D. 333 
 
 . 928 
 
 , 632 
 
 , 222 
 
 ... Add. IXTiil 
 
 567 
 
 - Wigg, 1 Leach, 378, n. 
 
 1 Ld. Eaym. 1165 , 
 
 2 Salk. 460 ... 
 
 - 2 Salk. 463 . 
 
 , 476 
 
 , 476' 
 
 , 476 
 
 684 
 
 - Wiloock, 2 Euss. 498 
 
 - Wilcox, E. & E. 60 
 
 - Wild, 1 Mood. C. C. 462 ... 
 
 - Wiley, 2 Den. 37 
 
 20 L. J., M. C. 4 ... 
 
 - WiUord, E. & E. 617 
 ■ Wilkes, 4 Burr. 2637 
 
 4 Burr. 2627, 2574 
 
 4 Burr. 2666 
 
 4 Burr. 2668 
 
 7 C. & P. 272 ... 
 
 2 Stark. SI. 141 ... 
 
 - Wilkins, 1 Dowl. 636 
 
 2 East, P. C. 664 
 
 2 East, P. C. 673 
 
 1 Hale, 637 
 
 1 Leaeh, 520 
 
 1 Leach, 522, 523 
 
 L. & C. 89 
 
 81 L. J., M. C. 72 
 
 - Wilkinson, 8 C. & P. 662 ... 
 — 1 Hale, 508 ... 
 
 - E. & E. 470 
 
 ... 91 
 
 ... 679 
 
 , 660, 599 
 
 16,226 
 
 ... 436 
 
 ... 436 
 
 42, 322, 493 
 
 , 108,188 
 
 ... 778 
 
 - Wilks, 7 C. & P. 812 
 
 2 East, P. C. 967 
 
 6 E. & B. 690 ., 
 
 26 L. J., Q. B. 47 
 
 - Willctt, 6 T. K. 294 
 
 - Williams, 6 B. & Aid. 695 
 
 9 B. & C. 649 .. 
 
 1 Burr. 386 ., 
 
 3 Burr. 1317 ., 
 
 2 Camp. 606 .. 
 
 2 Camp. 646 .. 
 
 1 C. & K. 196 .. 
 
 1 C. & K. 689 .. 
 
 2 C. & K. 61 .. 
 
 2 C. & K.. 100 .. 
 
 C. & Mar. 269 .. 
 
 6 C. & P. 890 .. 
 
 6 C. & P. 626 .. 
 
 7 C. & P. 298 .. 
 
 ... 114 
 ... 129 
 ... 272 
 ... 777 
 ... 145 
 ... 42 
 ... 339 
 ... 42 
 ... 339 
 42, 323 
 ... 671 
 ... 671 
 ... 232 
 ... 346 
 ...41, 322, 329 
 ... 926 
 ... 662 
 96, 102 
 96, 102 
 ... 113 
 
 111, 114 
 ... 849 
 ... 115 
 ... Ill 
 ... 862 
 
 211, 771 
 ... 345 
 7,662 
 ... 681 
 ... 83S 
 
 765, 758 
 ... 836 
 ... 455 
 
 89,203 
 
Table of Cases. 
 
 Ixiii 
 
 PAGE 
 
 270 
 
 483 
 
 276 
 
 ... 706, 706 
 
 .270, 664, 676 
 
 ... 282, 286 
 
 7, 662 
 
 88S 
 
 661, 681, 683 
 ,.. 114 
 ,.. 494 
 ,.. 494 
 
 - 20 L. J., M. 0. 106 ... 661, 
 
 681, 683 
 
 - 1 Leach, 114 688 
 
 -1 Leach, 822 494 
 
 - 1 Leach, 683 674 
 
 - 1 Leach, 536 174 
 
 - 4 Man. & R. 471 ... 849 
 
 - 10 Mod. 63 ... 
 - 1 Mood. C. C. 107 
 
 E. V. Williams, 7 C. & P. 820 , 
 
 ■ 7 C. & P. 664 , 
 
 8 C. & P. 284 , 
 
 ■ 8 0. & P. 286 . 
 
 8 C. & P. 434.., 
 
 6 Cox, 843 
 
 1 Den. 39 
 
 1 Den. 629 
 
 ■ 2 Den. 61 
 
 1 D. & R 197 ... 
 
 1 Hale, 622 
 
 Kel. 27 ... 
 
 1 Mood. C. C. 387 
 
 7 Q. B. 260 ... 
 
 1 Salli. 383 ... 
 
 1 Sails. 384 ... 
 
 2 Stark. SI. 141 
 
 - Williamson, 3 B. & Aid. 682 
 
 3 C. Ss P. 636 
 
 11 Cox, 828 ... 
 
 - Willaee, 1 East, P. 0. 186 
 
 - WiUis, 1 C. & K. 772 
 
 1 Den. 80 
 
 1 Mood. C. C. 375 ... 
 
 8 St. Tr. 260, 256 ... 
 
 - Willonghby, 1 East, P. C. 288 
 2 East, P. 0. 944 
 
 - 1 Russ. 617 ... 
 
 ... 23 
 ...68, 315, 
 360, 351 
 ... 643 
 ... 67 
 ... 894 
 ... 28 
 ... 777 
 ... 118 
 ... 627 
 ... 478 
 ... 74 
 
 - Wilshaw, C. & Mar. 145 
 
 - Wilson, 1 A. & E. 627 
 
 3 A. & E. 817 
 
 2 C. & K. 527 
 
 ■ 8 C. & P. Ill 
 
 9 C. & P. 27 
 
 Dears. 79 ... 
 
 Dears. & B. 127 
 
 Dears. & B. 167 
 
 Dears. & B. 659 
 
 -. 1 Den. 284... 46, 203, 321, 663 
 
 — - 1 E. & B. 697 102 
 
 3 L. J., M. C. 96 860 
 
 4 L. J., M. C. 114 ... 850 
 
 14 L. J., M. C. 8... ... 92 
 
 17 L. J., M. C. 82 ... 208, 321, 
 
 663 
 102 
 712 
 
 ... 89 
 ... 829 
 ... 238 
 
 ... 632 
 ... 581 
 ... 632 
 ... 251 
 ... 860 
 ... 860 
 308,663 
 ... 836 
 ... 461 
 ... 102 
 ... 712 
 ... 286 
 ,. 607 
 
 22 L. J., M. C. 63 
 
 36 L. J., M. C. 18 
 
 26 L. J., M. C. 45 
 
 27 L. J., M. C. 280 
 
 Leach, 285 
 
 2 Mood. 0. 0. 63 
 
 6 Q. B. 620 
 
 18Q. B.848 
 
 R. & R. 116 
 
 8 T. B. 357 
 
 - WUton, 1 P. & P. 309 ... 
 - 1 P. & E. 891 
 
 - Windsor, 4 P. & P. 861 ... 
 
 - Wink, 6 C. & P. 897 
 
 - Winkworth, 4 C. S P. 444 
 
 - Winter, R. & R. 295 
 Telv. 66 
 
 - Winterbottom, 2 C. & K. 87 
 1 Den. 41 ... 
 
 - Winwick, 8 T. R. 464 
 -Wiseman, Fortesc. 91 
 
 - Witchell, 2 East, P. C. 830 
 
 - Witlierington, 1 Str. 2 ... 
 
 ... 607 
 
 ... 745 
 
 ... 440 
 
 ... 92 
 
 ... 906 
 
 ... 496 
 
 ... 861 
 
 ... 250 
 
 ... 688 
 
 ... 226 
 
 ... 321 
 
 ... 414 
 
 ... 610 
 
 ... 66 
 
 ... 679 
 
 ... 679 
 
 ... 640 
 
 ... 717 
 
 ... 471 
 
 ... 61 
 
 H. V. Withers, 1 East, P. C. 333 
 
 1 Mood. C. C. 294 
 
 . Witt, 1 Mood. 0. 0. 248 ... 
 
 Wolstenholme, 11 Cox, 313 
 
 Wood, 8 B. & Ad. 667 ... 
 
 Dears. & B. 1 
 
 2 East, P. C. 733 ... 
 
 1 P. & P. 470 
 
 . 1 L. J., M. C. 93 ... 
 
 36 L, J., M. O 96 ... 
 
 . 1 Mood. C. C. 378 ... 
 
 . Woodcock, 1 Leach, 600 ... 
 
 1 Leach, 603 ... 
 
 3 Leach, 663 ... 
 
 Woodfall, 6 Burr. 2661 ... 
 
 Woodford, 1 M. & R. 384 ... 
 
 Woodheaa, 3 C. & K. 628... 
 
 ■ 1 M. & Rob. 549 
 
 PAGE 
 
 ... 6S2 
 ... 665 
 ... 494 
 ... 4.54 
 ... 896 
 ... 928 
 840,416 
 644, 689 
 ... 896 
 ... 928 
 ... 666 
 ...<261 
 ... 221 
 ... 275 
 ... 166 
 ... 434 
 ... 297 
 ... 407 
 ... 376 
 ... 112 
 ... 399 
 ... 167 
 34 
 
 - Woodley, 1 M. & Bob. 390 
 
 - Woodrow, 2 T. E. 731 
 
 - Woods, 6 Cox, 324 
 
 - Woodward, 4 C. & P. 640... 
 
 8C. &P. 561 .. 
 
 ■ 3 East.P. C. 658 ...41, 322 
 
 1 Leach, 253, n. ... 403 
 
 L. fiiC. 123 487 
 
 31 L. J., M. 0. 91 ... 437 
 
 1 Mood. C. C. 823 ... 60, 
 
 199,212,608,519 
 
 - Wooloock, 6 C. «s P. 516 846 
 
 - WooUey, 8 C. & K. 98 ... 
 
 1 Den. 569 
 
 19 L. J., M. C. 166 . 
 
 - Woolmer, 1 Mood. C. C. 
 
 - Woohldge, 1 East, P. C. 179 
 ■ 1 Leach, 807 ... 
 
 471, 472 
 471,472 
 471, 472 
 ... 642 
 ... 751 
 ... 761 
 ... 777 
 ... 688 
 
 - Woolstan, 2 Str. 834 
 
 - Worke, 1 Mood. C. C. 166... 
 
 - Worrall, 7 C. & P. 616 869 
 
 - Wortley, 2 C. & K. 283 897 
 
 1 Den. 162 397 
 
 3 Den. 833 ... 268,447,463 
 
 21L.J.,M.G.44 268,447,45.'! 
 
 - Wright, 1 Burr. 643 2 
 
 7 0. & P. 169 408 
 
 9 C. & P. 754 
 
 Dears. & B. 431 ... 
 
 2F. &P. 820 
 
 4 F. & P. 967 ... 
 
 37 L. J., M. C. e 
 
 B. & E. 466 
 
 2 Str. 1041 
 
 — 8 T. E. 393 
 
 1 Vent. 170 
 
 - Wroughton, 3 Burr. 
 
 - Wyatt, 39 L. J., M. C. 83 ... 
 
 ■ E. & K. 380 ... 
 
 ■ 1 Salk. 881 ... 
 
 ■ 1 Vent. 108,111 
 
 626, 716 
 ... 451 
 ... 208 
 ... 283 
 ... 461 
 
 19, 269, 298 
 ... 144 
 ... Ill 
 ... 55 
 112, 931 
 ... 707, 
 
 Add. Ixvii 
 ... 621 
 
 - Wylie, 8 Leach, 
 
 1 N. E. 92 
 
 ■ 1 N. R. 
 
 Wymer, 4 C. & P. 391 
 
 Wyndham, 8 Camp. 78 
 
 E. & R. 197 
 
 Wynn, 2 C. & K. 869 
 
 1 Den. 365 ... 
 
 2 East, 226 ... 
 
 ■ 18 L. J., M. C. 61 
 
 - Wynne, 2 Bast, P. 0. 664... 
 1 Leach, 413 
 
 - Yandell, 4 T. R. 621 
 
 - Yarkhill, 9 C. & P. 218 ... 
 
 - Tates, Car. & M. 182 
 ■ 1 Mood. C. C. 170 
 
 - Yeadon, L. & C. 81 
 
 ... 66 
 
 ... 315 
 
 ... 670 
 
 ... 216 
 
 41, 821 
 
 ... 37 
 
 ... 27 
 
 880, 881 
 
 380, 881 
 
 ... 93 
 
 880, 381 
 
 ... 831 
 
 ... 381 
 
 54 
 
 904 
 
 818 
 
 ... 878, 481 
 166, 179, 184. 
 211, 667 
 
Ixiv 
 
 Table of Cases. 
 
 K. V. Teadon, 31 L. J., M. C. 70... 166, 179, 
 184, 211, 657 
 
 Tend, 6 C. & P. 176 350 
 
 Yeovley, 8 A. & B. 806 241 
 
 York, 4 Bl. Com. 24 16 
 
 2C. &K. 841 3S1 
 
 1 Den. 336 331 
 
 Fost. 70 1« 
 
 18 L. J., M. 0. 38 331 
 
 Yorkshire Justices, 7 A. & E. 583 .. 90 
 
 7 L. J., M. C. 
 
 623 
 
 • (W. R. of), 4 B. & AW. 
 
 - Young, 2 C. & K. 466 
 
 3C. &K. 106 
 
 8 0. & P. 645 
 
 2 Cox, 280... 
 
 10 Cox, 371 
 
 1 Den. 194 
 
 -2 East, 14. 
 
 909 
 ... S80, 882 
 
 io, 629, 960 
 ... 292 
 ... 630 
 
 ... 380,382 
 ... 110 
 32, 432 
 
 Zulueta, 1 C. & K. 215 
 
 Bichardson v. Anderson, 1 Camp. 66, n. 
 Mppinner v. Wright, 2 B. & Aid. 478... 268 
 
 Eoberta u. Hunt, 16 Q. B. 17 
 Bobinson's case, 1 Hale, 184 ... 
 
 2 Rol. Kep. 60 ... 
 
 Kobson V. Kemp, 4 Esp. 235 ... 
 
 6 Esp. 52 
 
 Eolf I). Dart, 2 Taunt. 52 
 Rowe u. Breuton, 8 B. & C. 765 
 
 8 B. & C. 765 
 
 Rowland v. Ashby, Ey. & M. 231 
 
 Veale, Cowp. 18 ... 
 
 Rustel V. MacquiBter, 1 Camp. 49 
 Rutherford v. Evans, 4 0. & P. 79 
 Ryalls V. Leader, 36 L. J., Ex. 185 
 L. E., 1 Ex. 296 
 
 -R.,17L. J.,M. C. 
 
 18 L. J., M. C. 
 
 11 Q. B. 781 
 
 -UQ. B. 781,796... 
 
 906 
 ... 672 
 ... 672 
 ... 277 
 ... 277 
 ... 240 
 ... 248 
 ... 244 
 ... 232 
 ... 696 
 ... 217 
 ... 206 
 ... 773 
 ... 773 
 813,818 
 ... 176 
 53, 813, 818 
 72, 176 
 ... 206 
 
 Ryder v. Malbon, 3 C. & P. 694 
 
 SALTE V. Thomas, 3 Bos. & P. 188 ... 259 
 Samuel u. Payne, Doug. 359 ... 647, Q9& 
 Sanchar's (Lord) case, 9 Co. 119 14,952 
 St. Helen's Smelting Co. u. Tipping, 35 
 
 L. J., Q. B. 66 892 
 
 Scott V. Soans, 8 East, 111 38 
 
 Lewis, 7 C. & P. 349 246 
 
 Selby 1). Harris, 1 Ld. Raym. 746 ... 244 
 Sessinghurst-house case, 1 Hale, 461 ... 9 
 Shaw V. Morley, 37 L. J., M. C. 106 ... 894 
 
 L. E., 3 Ex. 137 ... 894 
 
 Shaw, 2 Swab. & Trist. 617... 291 
 
 Wrigley, 2 East, 500 200 
 
 Shea V. E., 3 Cox, 141 664 
 
 Shergold r. Holloway, 2 Str. 1002 ... 696 
 Shrewsbury (Mercers of) v. Hart, I 
 
 C. &P. 114 261 
 
 Sidebottom v. Adkins, 27 L. J. 
 
 152 
 
 SUlD.E., Dears. 132 
 
 1 E. & B. 653 
 
 - 22 L. J., M. C. 41 
 
 Ch. 
 
 186, 
 186, 
 186, 
 
 Sissons V. Dixon, 6 B. & C. 758 
 Skutt V. Hawkins, 2 Eol. Eep. 243, 244... 
 Slater v. Mayor, &c. of Ashton-under- 
 
 Lync, 18 Q. B. 398 ... 
 
 Slatterie v, Pooley, 10 L. J., Ex. 8 ... 
 
 6 M. & W. 664 219, 
 
 Slowman V. Dutton, 10 Bing. 402 
 
 4 M. & Scott, 174 
 
 Smalt V. Whitmill, 2 Str. 1054... 289, 
 Smartle v. Williams, 1 Salk. 280 
 Smith e. Blandy, Ey. & M. 258 
 Huson, 1 Phil. 287 ... 
 
 886, 
 
 Smith V. Mall, 2 Rol. Eep. 263 
 
 R., IS L. J., M. C. 207 
 
 13 Q. B. 738 
 
 - Taylor, 1 N. R. 196 
 
 Solita n. Yarrow, 1 M. & Kob. 133 ... 
 Southey u. Nash, 6 C. & P. 632 
 Spenceley v. Schulenberg, 7 East, 357... 
 
 Wlllot, 7 East, 108 
 
 Spiers v. Parker, 1 T. R. 141 
 
 Stafford (Marquis of) v. Coyne, 7 B. & C. 
 
 267 
 
 Stanger v. Searle, 1 Esp. 14 
 Stapleton v. Crofts, 18 Q. B. 367 
 
 Steel o. Smith, 1 B. & Aid. 94 
 
 Sterling V. Vaughan, 2 Camp. 228 
 Stevens V. Myers, 4 C. & P. 349 
 
 Still V. Haltord, 4 Camp. 17 
 
 Stockdale v. Hansard, 9 A. & E. 1 
 
 11 A. & E. 297 
 
 2 Per. & D. 1 ... 
 
 3 P. & D. 346 ... 
 
 Stone V. Blackburn, 1 Esp. 37 
 
 Stonehouse v. Elliott, 6 T. E. 315 
 Strauss v. Francis, 4 F. & F. 1107 
 Streeter v. Bartlett, 5 C. B. 664 
 Studdy D. Saunders, 2 D. & R. 347 ... 
 Summers v. Moseley, 2 C. & M. 477 ... 
 Sussex Peerage case, 1 1 CI. & Fin. 85... 
 
 Sweetapple v. Jesse, 5 B, St Adol.27... 
 
 2 Nev. & M. 36... 
 
 Swenden's case, 6 St. Tr. 450 
 
 Swinton v. MoUoy, 1 T. R. 537 
 Sydserff». R., 11 a. B. 245 ... 
 
 TABART». Tipper, 1 Camp. 362 
 Talbot 11. Hodson, 7 Taunt. 251 
 Taylor v. Foster, 2 C. St P. 195 
 
 Hawkins, 16 Q B. 308 
 
 ■ Hooman, 1 Holt, 523 
 
 1 Moore, 161 
 
 - Willans, 3 Bing. 449 . 
 - 1 1 Moore, 448 
 
 PAOB 
 ... 58 
 ,.. 103 
 103 
 860 
 267 
 290 
 276 
 284 
 62 
 
 907 
 
 267 
 
 274 
 
 62 
 
 246 
 
 669 
 
 244 
 
 773 
 
 773 
 
 773 
 
 773 
 
 299 
 
 696 
 
 860 
 
 244 
 
 277 
 
 287 
 
 257, 
 
 238 
 
 769 
 
 769 
 
 ... 699 
 
 ... 698 
 
 ... 939 
 
 ... 769 
 ... 266 
 ... 276 
 ,.. 860 
 ... 201 
 .. 201 
 ,.. 200 
 .. 200 
 .. 296 
 ,.. 460 
 ... 857 
 ... 90 
 90 
 
 Thomas v. David, 7 C. Si P. 35 
 Thompson v. Giles, 2 B. 5i C 422 ... 
 Thorley v. Kelly ( Lord), 4Taunt. 365... 
 Thornton (Dr.), Re, 7 Ad. Si E. 583 ... 
 
 7 L. J., M. C. 9... 
 
 Tilladam v. Inhabitants of Bristol, 2 
 A. Si E. 389 
 
 L. J., M. C. 35 75 
 
 — 4 
 
 N. &M. 144 ... 75 
 
 Timothy v. Simpson, 1 C, M. St K. 
 
 '57 642 
 
 — 4 L.J., Ex. 81... 642 
 
 Tmkltr's case, 1 East, P. C. 354 ... 234 
 Tomlinsone. Briltlebank, 4 B. Si Ad. 
 
 630 769 
 
 1 Nev. Si M. 
 
 455 7g9 
 
 Tooke's(Horne)case, lEast, P. C 31... 217 
 Trist t>. Johnson, 1 M. Si Rob. 259 ... 220 
 
 Tulley V. Corrie, 10 Cox, 640 672 
 
 Turner v. Pearte, 1 T. R. 717 ... 299 
 
 UNDERWOOD v. Hewson. I 
 596 
 
 Str. 
 ... 661 
 
 VANE'S (Sir H.) case, 2 Harg. St.Tr 
 
 450 ,62 
 
 1 Keb. 324 ... 161 
 
 Kel. 16 161 
 
 1 Lev. 68 ... 161 
 
 1 Sid. 85 ...161 
 
 Van Oraeron v. Dowioh, 2 Camp. 44 262 
 Vaughan's case, 2 Salk. 634 ... 725 
 
Table of Cases. 
 
 Ixv 
 
 PAGE 
 
 Vaughan's case, 5 St. Tr. 17, 39 ... 726 
 Vaughan v. Martin, 1 Esp. 440 ... 299 
 Vaux'scase, 4Co. 45 a, 46 6 ... 132,134 
 
 Post. 349 7 
 
 4 Rep. 446 7 
 
 W ADDINGTON «. Cousins, 7 C. & P. 
 
 595 267 
 
 ■Wakefield's case, Hardr. 313 291 
 
 Wakemanv. Robinson, 1 Bing. 213 ... 661 
 Wakleyo. Cooke, 4Exch. 511 ...US 
 
 16 L. J., Ex. 225 ... 115 
 
 19L. J., Ex. 91 ...118 
 
 16M. &W. 822 ...115 
 
 Waldridge v. Kennison, 1 Esp. 143 ... 267 
 Waldron v. Coombe, 3 Taunt. 162 ... 260 
 Walker v. Countess fieaucbamp, 6 C. 
 
 &P. 552 258 
 
 «. London (Lord Mayor, &c. of), 
 
 38 L. J.. M. C. 107 305 
 
 Wall V. Macnamara, 1 T. R. 536 ... 698 
 Wallis 1). Delancy, 7 T. R. 266 ... 265 
 
 Walsby v. Anley, 30 L. J., M.C. 121... 943 
 Walters ti. Mace, 2 B. & Aid. 756...205, 775 
 
 Ward V. Rich, 1 Vent. 103 67 
 
 Wells, 1 Taunt. 461 265 
 
 Warden o. Eermor, 2 Camp. 282 ... 265 
 Warne v. Chadwell, 2 Stark. 457 ... 217 
 Warren v. Anderson, 8 Scott, 384 ... 266 
 
 Warren, 1 C. M. & R. 150 ... 771 
 
 4Tyr. 850 771 
 
 Warriner v. Giles, 2 Str. 254, 1005 ... 261 
 Warwick's (Lord) case, 13 St. Tr. 1015 137 
 Wason V. Walter, L. R., 4 Q. B. 73 ... 773 
 
 38 Lt J., a. B. 34, 45 773 
 
 Watson V. Bodell, 14 M. & W. 57 ... 697 
 Weatberstone u. Hawkins, 1 T. R. 110 860 
 
 Weaver i;. Busb, 1 T. R. 299 662 
 
 Webb V. Hill, 3 C. & P. 485 206 
 
 Smith, 2 C. & P. 337 276 
 
 Weilden v. Holmes, 6 Mod. 115, 116... 38 
 
 Westbury v. Powell 4 
 
 Wharton Peerage case, 12 CI. & Fin. 
 
 295 244 
 
 White V. Garden, 10 C. B. 927 339 
 
 Parkin, 12 East, 578 268 
 
 Whitehead v. R., 7 Q. B. 582 37 
 
 Whitelook v. Musgrove, 1 C. & M. 511 266 
 Whitfield V. S. E. B. Co., E. B. & E. 
 
 115 7 
 
 PAGE 
 
 Williams v. E. I. Comp., 3 East, 192... 219 
 
 3 East, 201 ... 2 
 
 . Glenister, 2 B. & C.699 ... 931 
 
 Ogle, 2 Str. 889 ...46, 203, 321 
 
 R., 7 a. B. 253 3 
 
 Willraanii. Worrall, 8 C.&P.380...266,266 
 Wilson D. Gilbert. 2 Bos. & P. 281 ... 200 
 
 Rastall, 4 T. R. 753... 276, 277 
 
 Winsor v. R., 35 L. J., M. C. 121 ... 163, 
 
 167, 168, 188 
 
 35 L. J., M. C. 133... 165, 179 
 
 — 35 L. J., M. C. 161...167, 168, 
 
 169, 188, 273 
 
 L. R., 1 Q. B. 289, 390... 168, 
 
 188, 273 
 
 L. R., 1 Q. B. 308, 317... 167 
 
 L. R., 1 Q. B. 317, 322... 163 
 
 L. R., 1 a. B. 326 ...168 
 
 L. R., 1 a. B. 390 ... 273 
 
 L. R., 1 a. B. 395 ... 169 
 
 Witham v. Lewis, 1 Wils. 48 179 
 
 Witherston v. Edgington, 2 Camp. 94 266 
 Witt V. Witt, 32 L. J., Prob. M, & A. 
 
 179 221 
 
 3 Swab. & Trist. 143 ... 221 
 
 Wollaston v. Hakewill, 3 Scott, N. R. 
 
 593 299 
 
 Wood v. Drury, 1 Ld. Raym. 734 ... 266 
 Woodford v. Ashley, 2 Camp, 193...198, 204 
 
 . 11 East, 508 ... 198. 
 
 203, 204 
 Woodroffe v. Williams, 6 Taunt. 19... 244 
 Woodward u. Cotton, 1 C. M. & R. 44 239 
 Woolnoth V. Meadows, 5 East, 463 ... 859 
 
 Worrall'scase, Trem. 106 486 
 
 Wright V. Clement, 3 B. & Aid. 503... 205, 
 769 
 
 Pindar, Alleyn, 18 ... 242 
 
 Wyatt V. Bateman, 7 C. & P. 586 ... 265 
 
 Gore, Holt, N. P. C. 299 ... 860 
 
 Wymark's case, 5 Co. 73, a 264 
 
 YAKDLEY V. Arnold, 10 M. & W. 141 299 
 
 Yewin's case, 2 Camp. 638 280 
 
 Young V. R., 3 T. R. 98 ... 68, 70, 72, 
 
 470,471 
 
 Younge ». Honner, 1 C. & K. 51 ... 267 
 
 2 M. 8j Rob. 536 267 
 
 ZENOBI A ». Axtell, 6 T. R. 162... 55, 769 
 
ADDENDA ET CORRIGENDA. 
 
 Page 12, line 32 from top, after " R. v. Greenwood, 2 Den. C. C. 453," 
 aAd " 24 ^ 26 Viet. c. 94, s. 8 (oMie, p. 11)." 
 
 „ 24, line 10 from top, after " R. y. Woodward, 8 C. # P. 561," add 
 "R. T. M'Oinnes, 11 Cox, 391." 
 
 „ 31, line 7 from bottom, «<?<? "Where, on a trial for maliciously 
 wounding on the high seas, it was stated by three witnesses 
 that the vessel, on board of which the offence was alleged to 
 have been committed, was a British ship of Shields, and 
 that she was sailing under the British flag, but no proof was 
 given of the register of the vessel or of the ownership, it was 
 held that the court had jurisdiction, as the evidence was 
 sufficient to prove that the vessel was British; and that that 
 being so the court would have jurisdiction, even if it had 
 appeared that the vessel was not registered. R. v. Seierg, 
 L. R., 1 a a R. 264; R. V. Von Seherg, 39 L. J. {M. C.) 
 133, S. C." 
 
 „ 37, line 6 from bottom, after " Mansell v. R., % E. ^ B. 54," add 
 "It seems that no objection can be sustained to the caption 
 of an indictment for an allegation that the grand jurors were 
 ' sworn and affirmed,' without showing that those who were 
 sworn were persons who ought to have been affirmed, or 
 that those who were affirmed were persons who ought to 
 have been sworn. Mulcahy v. R., 3 S. L. English and 
 Irish Appeals, 306, 322." 
 
 „ 42, line 15 from top, after "c. 85, s. 21," add " or where the property 
 is such as is declared by stat. 33 ^ 34 Vict. e. 93 {Tlie Married 
 Women's Property Act, 1870), to be the separate property 
 of the wife, the 11th section of that statute enacting, that in 
 any indictment it shall be sufficient to allege such property 
 to be her property." 
 
 „ 52, line 3 from bottom, after " R. v. Molt, 2 Leach, 593," add " R. 
 V. Parher, L. R., 1 C. C. R. 225; 39 Z. J. {M. C.) 60 {post, 
 p. 213)." 
 
 „ 53, line 12 from bottom, after " R. v. Marshall, 1 Mood. C. C. 158," 
 add " But uncertainty or ambiguity in stating matter which 
 may be rejected as surplusage does not vitiate the indictment. 
 R. V. Parker, L. R., 1 C. C. R. 225; 39 L. J. (M. 0.) 60 
 {post, p. 213)." 
 
 „ 164, line 31 from top, after " R. v. Sapgood, L. R., 1 C. C. R. 221;" 
 add "R. ,. Wyatt, 39 L. J. (M. C.) 83, S. C" 
 
 „ 211, line 22 from bottom, after " R. v. Taylor, L. R., 1 0. C. ^.194; 
 38 L. J. (_M. C.) 106," add " and see R. v. Guthrie, L. R., 1 
 a C. R. 241; 39 L. J. {M. C.) 95 {post, p. 710). Rut see 
 also R. V. Day, 11 Coie, 505 (C. C. R.), {post, p. 688)." 
 
Ixviii Addenda et Corrigenda. 
 
 Page 249, line 6 from bottom, after " {M. C.) 1 36," add " A witness came 
 to the assize town and into court, but a short time before 
 the trial came on left the court and returned to his home by 
 the advice of a medical man, who deposed that in his judg- 
 ment it would have been highly dangerous for the witness to 
 , remain. While the trial was going on the witness was on 
 his way home. Channell, Serjt., after consulting with 
 Pa/rhe, B., held that the witness was ' so ill as not to be able 
 to travel,' and that his deposition before the committing 
 magistrate might be read in evidence. R. v. WicJier, 18 
 Jur. 252." 
 
 „ 279, line 15 from bottom, after " 321," add " And the privilege of 
 refusing to answer questions on the ground that the answers 
 may tend to criminate him is that of the witness alone, and 
 neither party to the suit can take any advantage therefrom. 
 Jt. V. Kinglalie, 11 Cow, 499. Therefore, where a witness, 
 called on the part of the crown to prove bribery against the 
 defendant, refused to give evidence on the ground that his 
 evidence would tend to criminate himself, and the objection 
 being overruled by the judge, he gave his evidence, the 
 Court of Queen's Bench held, that the defendant could not 
 obj ect that such evidence had been improperly received. Id." 
 
 ,, 296, line 14 from top, after " 17 ^ 18 Vict. c. 102, ss. 10, 12, 13," 
 add "As to payment of costs of prosecution by persons 
 convicted of treason or felony, see 33 ^ 34 Viet. c. 23, s. 3 
 (ante, p. Vila). As to payment of defendant's costs by 
 prosecutor in certain cases where an indictment is preferred 
 under the Vexatious Indictments Act, see 30 ^ 31 Vict. 
 V. 35, ». 2 (ante, p. 6)." 
 
 „ 322, line 19 from bottom, after "Id. s. 21," add "or nnless the 
 property is such as is declared by stat. 33 ^ 34 Vict. c. 93 
 (The Married Women's Property Act, 1870), to be the 
 separate property of the wife, the 11th section of that statute 
 enacting, that in any indictment it shall be sufficient to allege 
 such property to be her property." 
 
 „ 438, line 22 from top, after " L. B., 1 C. C. B. 272," add " 39 L. J. 
 
 (M. a.) 135." 
 „ „ line 16 from bottom, after " L. B., 1 C. C. B. 272," add " 39 
 
 Z. J. (M. C.) 135." 
 
 „ 715, line 19 from bottom, after " Cox, 41," add " There may, 
 however, be circumstances attending the deposit by the pri- 
 soner of the body of a child in an unlocked box, which may 
 warrant the conclusion that such deposit was a secret dispo- 
 sition of the body. B. v. Cook, 11 Cow, 54:2, per lush, J." 
 
 „ 938, last line, after " B. v. Warbwton, Michaelmas Term, 1870 
 (C. a B.)," add "reported in 40 L. J. (M. G.) 22; and in 
 i. B.. 1 C. a B. 274." 
 
BOOK I. 
 
 PLEADING, PEACTICE, AND EVIDENCE GENERALLY. 
 
 PART I. 
 
 PLEADING AND PRACTICE GENERALLY. 
 
 CHAPTER I. 
 
 INDICTMENT. 
 
 Sect. 1. What, and in what cases it lies, p. 1. 
 
 2. Against whom it lies, p. 7. 
 
 3. Form of it, p. 24. 
 
 4. Joinder of two or more Defendants in one Indictment, p. 68. 
 
 5. Joinder of several Offences in different Covmts in one Indict- 
 
 ment, p. 69. 
 
 6. Within what Tims the Bill must he preferred, p. 73. 
 
 7. How found, p. 75. 
 
 8. Process on, p. 78. 
 
 9. Bail on, p. 84. 
 
 10. In what Cases quashed, p. 90. 
 
 11. Whem and where tried, p. 93. 
 
 12. Nolle Prosequi, p. 105. 
 
 Sect. I. 
 
 INDICTMENT, WHAT, AND IN WHAT CASES IT LIES. 
 
 An indictment is a written accusation of one or more persons of a 
 crime, preferred to, and presented upon oath by, a grand jury. 
 
 It lies for all treasons and felonies, for misprisions of treason and 
 felony, and for all misdemeanors of a public nature at common law. 
 2 Hawlc. c. 25, s. 4. Thus, it lies for a breach of duty, which is not a 
 mere private injury, but an outrage upon the moral duties of society: 
 as for the neglect to provide sufficient food or other necessaries for 
 an infant of tender years, unable to provide for and take care of 
 itself (whether child, apprentice or servant), whom the defendant is 
 obliged by duty or contract to provide for, so as thereby to injure 
 its health. See R. v. Friend, R. <& R. 20: R. v. Smith, 2 C. d P. 
 449: R. V. Ridla/, 2 Campb. 650: R. v. Hogan, 2 Den. C. C. 277: 
 
 w. B 
 
 jy 
 
2 Indictment. 
 
 R. V. PhiUpot, Dears. C. C. 179; 24 <& 25 Vict. c. 100, s. 26; for an 
 act of wilful negligence, whereby human life is endangered; Wil- 
 liams V. E. I. Co., 3 East, 201 ; for an illegal combination for the 
 purpose of dictating to masters what workmen they shall employ; 
 a. V. Bykerdike, 1 M. & Rob. 179; see R. v. Rowlands, 2 Den. C. C. 
 364; 17 Q. B. 671; and for all nuisances of a public nature, though 
 occasioned by an act in itself innocent, if the nuisance be the pro- 
 bable consequence of the act. R. v. Moore, 3 B.d; Ad. 184; 1 Rawh. 
 c. 75, ss. 6, 7. A bare intention merely is not indictable, except in 
 the case of high treason, where, by 25 Ed. 3, st. b, c. 2, voluntas 
 repuiatur pro facto; but in all cases where the intent to commit a 
 crime is manifested by any overt act, the party may be indicted for 
 an attempt to commit the offence. 1 Deacon, 643. It is perfectly 
 clear that every attempt (not every intention, but every attempt) to 
 commit a misdemeanor is a misdemeanor. R. v. Martin, 2 Mood. 
 C. a 123; 2 C. S P. 213, 216. Thus, the procuring of indecent 
 prints with intent to sell them is an indictable misdemeanor; but 
 the merely keeping and preserving them with that intent is not. 
 Dugdale v. R., 1 E. & B. 436; Dears. C. C. 64. So, the mere pos- 
 session of base coin with intent to utter it was not indictable at 
 common law; R. v. Heath, R. <Ss R. 184; but it is so now, under 
 certain circumstances, by virtue of the 24 & 25 Vict. u. 99, s. 11, 
 post. It is to be observed, that an attempt to commit a crime can 
 only in point of law be made out Where, if no interruption had taken 
 place, the attempt could have been carried out successfully, so as to 
 constitute the offence which the accused is charged with attempting^ 
 to commit. R. v. Collins, L. & C. 471; 33 L. J. {M. C.) 177. 
 Therefore, if a person puts his hand into the pocket of another with 
 intent to steal what he can find there, and the pocket is empty, he 
 cannot be convicted of an attempt to steal. Ih. 
 
 If a statute prohibit a matter of public grievance, or command a 
 matter of public convenience (such as the repairing of highways or 
 the like), all acts or omissions contrary to the prohibition or command 
 of the statute, being misdemeanors at common law, are punishable by 
 indictment, if the statute specify no other mode of proceeding. 2 Hawh. 
 Q. 26, s. 4; R. V. Davis, Say. 133; and see R. v. Sainshury, 4 T. R. 
 461. And if the statute specify a mode of proceeding different from 
 that by indictment, then, if the matter were already an indictable 
 offence at common law, and the statute introduced merely a different 
 mode of prosecution and punishment, the remedy is cumulative, and 
 the prosecutor has still the option of proceeding by indictment at com- 
 mon law, or by the mode pointed out by the statute; R. v. Robinson, 
 2 Burr. 799: R. v. Wigg, 1 Ld. Raym. 1166; 2 Salh. 460: R. v. 
 Balme, 1 Covyp. 648: R. v. Carlile, 3 B. & Aid. 161; and see 2 Hale, 
 191; 1 Saund. 195, n. (4): or even if a statute prohibit, under a 
 penalty, an act which was before lawful, and a subsequent statute, 
 jB. v. Boyall, 2 Burr. 832, or the same statute, in a subsequent sub- 
 stantive clause, ordain a mode of proceeding for the penalty different 
 from that by indictment, the prosecutor may, notwithstanding, pro- 
 ceed by indictment upon the prohibitory clause, as for a misdemeanor 
 at common law, or he may proceed in the manner pointed out by the 
 statute at his option; 2 Hale, 171; R. v. Wright, 1 Burr. 543; and 
 see R. V. Jones, 2 Str. 1146: R. v. Harris, 4 T. R. 205: R. v. Bu- 
 chanan, 7 Q. B. 883; but if the manner of proceeding for the penalty 
 be contained in the same clause which prohibits the act, the mode ot 
 proceeding given by the statute must be pursued, and no other; for 
 
Indictment. 3 
 
 the express mention of any other mode of proceeding impliedly 
 excludes that of indictment. R. v. Mobinson, 2 Burr. 805: R. v. Buck, 
 1 Sir. 679. Where a statute, in one clause, declares an act to be a 
 public nuisance, it is indictable, though a subsequent clause subject 
 it to a penalty or make it abateable. R. v. Orawshaw, 1 Bell, C. C. 
 303 ; see R. v. Ch'egory, 5 B. &Ad. 555. If a later statute expressly 
 alters the quality of an offence, as by making it a misdemeanor in- 
 stead of a felony, or a felony instead of a misdemeanor, the offence 
 cannot be proceeded for under the earlier statute. Michell v. Brown, 
 lE.&E. 267; 28 L. J. (M. C.) 53 : R. v. Gross, 1 Ld. Raym. 711 ; 
 3 Salk. 193, Or if a later statute again describes an offence created 
 by a former statute, and affixes to it a different punishment, varying 
 the procedure, and giving an appeal where there was no appeal be- 
 fore, the prosecutor must proceed for the offence under the later 
 statute. Michell v. Brown, ubi supra. But if, in the case of a com- 
 mon-law misdemeanor, a new mode of punishment or new mode of 
 proceeding merely be directed, without altering the class of the 
 offence, the new punishment or new mode of proceeding is cumula- 
 tive, and the offender may be indicted as before for the common-law 
 misdemeanor. R. v. Carlile, 3 B.& Aid. 161. If, however, a statute 
 make the doing of an axX felonious, yet if a subsequent statute make 
 it penal only, the latter statute is a virtual repeal of the former, so 
 far as relates to the punishment of the offence. 1 Hawk. P. C. c. 40, 
 s. 3. Where, therefore, a statute made an offence punishable with 
 death, and a subsequent statute imposed a forfeiture of twenty pounds 
 for the same offence when first committed, recoverable before justices 
 of the peace, and made the second offence felony, the latter statute 
 was held virtually to repeal the former. R. v. Davis, 1 Leach, 271. 
 Where a statute enabled the king in council to make certain orders 
 relating to quarantine, a disobedience of these orders was holden to 
 be a misdemeanor at common law, and indictable as such. R. r. 
 Harris, 4 T. R. 202. So, where a corporation were authorized by a 
 public statute to make a towing-path on the side of a river, it was 
 holden to be a misdemeanor at common law to obstruct the corpora- 
 tion in the execution of the powers given them by the statute, and of 
 course indictable. R. v. Smith, 2 Doug. 441. But where a public 
 act regulates rights which are merely private, an indictment will not 
 lie for the infringement of those rights: as, if a statute empowers the 
 setting out of private roads and the directing their repairs, an indict- 
 ment does not lie for not repairing them. R. v. Richards, 8 T. R. 
 634. See Com. Dig. Indictment, {D.); 1 Russ. C. & M., by Greaves, 
 78-93 (4th ed.) Where a statute declax-es that an offender against 
 its provisions shall be deemed to 'h&y& feloniously committed the act, 
 the offence is thereby made a felony. Per Bayley, J., in R. v. John- 
 son, SM.<& Sel. 556. So where a statute says that an offence, pre- 
 viously a misdemeanor, shall be deemed and construed to be a felony, 
 instead of declaring it in terms to be a felony, the offence is thereby 
 made a felony. R. v. Solomons, R. & M., C. C. R. 292, overruling R. 
 V. Cale, R. & M., C. C. R. 11. An enactment that an offence shall be 
 felony, which was already felony at common law, does not create a 
 new offence. Per Patteson, J., Williams v. R., 7 Q. B. 253. 
 
 By the repeal of the statute on which an indictment is framed, 
 though it take place after the finding of the bill, (but before plea 
 pleaded,) the proceedings fall to the ground, and no judgment can be 
 pronounced. R. v. Denton, Dears. C. C.3; 18 Q. B. 761 ; see R. v. 
 St. Mawgon in Meneage, 8 A. d E. 496. And where a prisoner was 
 
 b2 
 
4 Indictment. 
 
 indicted for privately stealing from a shop against the 10 16 11 TF. 3, 
 c. 23, which was repealed after the offence was committed, but before 
 the prisoner was tried, by 1 G. 4, c. 117, s. 1, it was held that the 
 prisoner could not be sentenced under the repealed act. R. v. 
 M'Kenzie, JR. & JR. 429. It is to be observed, however, that repealing 
 acts sometimes contain clauses for the purpose of keeping alive the 
 statutes they repeal, so far as they relate to offences committed 
 against them. As to the effect of such clauses, see B. v. Smith, L. 
 <& C. 131. 
 
 An indictment will not lie for a mere private injury against an in- 
 dividual : as for enticing away his apprentice ; R. v. Daniel, 1 Salk. 
 380 ; entering his close, digging the ground, erecting a shed thereon, 
 expelling him and keeping him out of possession ; R. v. Storr, 3- 
 Burr. 1698: R. v. Bake, Id. 1731; pulling the thatch off a dwelling- 
 house, of which he was in peaceable possession; R. v. Atkins, 3 
 Burr. 1706, 1707; for excluding commoners by enclosing, Cro. JEliz. 
 90, or the like : the remedy for injuries of this description is by 
 action only, unless they in some measure concern the queen, or are 
 accompanied by circumstances which amount to a breach of the 
 peace. Anon. 3 Salk. 187. Nor will an indictment lie for the in- 
 fringement of a right common (not to all her majesty's subjects, but 
 only) to the inhabitants of a particular district. 1 Hawk. P. C. 696 : 
 Westhury v. Powell, cited in Fineux v. Sovenden, Cro. Eliz. 664; Co. 
 Lit. 56 a : iJ. v. Thrower, 1 Vent. 208 ; 3 Kelle, 28 : Cath. Austin's 
 case, 1 Vent. 189. So an indictment will not lie for the infringement 
 of rights which are merely private, though regulated by a public 
 statute ; R. v. Richards, 8 T. R. 634 ; nor for an act prohibited by a 
 private statute, which tends merely to the damage of a particular 
 individual ; R. v. ParJdn, 1 Sid. 208, 209 ; nor will it lie for a mere 
 breach of the bye-laws or customs of a corporation. R. v. Sharpies^ 
 4 T. R. 777 : R. v. Gorge, 3 Salk. 188. See Com. Dig. Indictment, 
 (E.) ; 1 Russ. C. & M., hy Greaves, 88-91 (4th ed.). 
 
 Vexatious Indictments Act.'] — Formerly any person was at liberty 
 to prefer a bill of indictment against another before a grand jury for 
 any crime, without any previous inquiry before a justice into the 
 truth of the accusation. This right was often much abused, because, 
 as the grand jury only hear the evidence for the prosecution, and the 
 accused is totally unrepresented before them, it frequently happened 
 that a person wholly innocent of the charge made against him, and 
 who had no notice that any proceedings were about to be instituted, 
 found that a grand jury had been induced to find a true bill against 
 him, and so to injure his character and put him to great expense and 
 inconvenience in defending himself against a groundless accusation. 
 In order in some degree to remedy this state of the law, it is now 
 provided that no bill of indictment for any of the offences following ; 
 viz., perjury, — subornation of perjury, — conspiracy, — obtaining 
 money or other property by false pretences, — keeping a gambling- 
 house. — keeping a disorderly house, — and any indecent assault, — 
 to which is now added, by 32 & 33 Vict. c. 62 (The Debtors Act, 
 1869), s. 18, every misdemeanor under the second part of that Act, 
 — shall be presented to or found by any grand jury, unless the prose- 
 cutor or other person presenting such indictment has been bound by 
 recognizance to prosecute or give evidence against the person ac- 
 cused of such offence, or unless the person accused has been com- 
 mitted to or detained in custody, or has been bound by recognizance^ 
 
Indictment. 5 
 
 to appear to answer to an indictment to be preferred against him for 
 such oflFence, or unless such indictment for such offence, if charged to 
 have been committed in England, be preferred by the direction or 
 with the consent in writing of a judge of one of the superior courts 
 •of law at Westminster, or of her majesty's attorney-general or soli- 
 citor-general for England, or unless such indictment for such offence, 
 if charged to have been committed in Ireland, be preferred by the 
 direction or with the consent in writing of a judge of one of the 
 superior courts of law in Dublin, or of her majesty's attorney-general 
 or solicitor-general for Ireland, or (in the case of an indictment for 
 perjury) by the direction of any court, judge or public functionary, 
 authorized by the 14 db 15 Vict. c. 100, to direct a prosecution for 
 perjury. 22 06 23 Vict. c. 17, s. 1. And by s. 2 of the same statute, 
 where any charge or complaint shall be made before any one or more 
 •of her majesty's justices of the peace that any person has committed 
 any of the offences aforesaid within the jurisdiction of such justice, 
 and such justice shall refuse to commit or to bail the person charged 
 with such offence to be tried for the same, then in case the prosecutor 
 shall desire to prefer an indictment respecting the said offence, it 
 shall be lawful for the said justice, and he is hereby required, to take 
 the recognizance of such prosecutor to prosecute the said charge or 
 complaint, and to transmit such recognizance, information and de- 
 positions, if any, to the coiu-t in which such indictment ought to be 
 preferred, in the same manner as such, justice would have done in 
 case he had committed the person charged to be tried for such 
 offence. It is not necessary that the performance of any of the con- 
 ditions mentioned in this statute should be aven-ed in the indictment 
 or proved before the petty jury. Knowlden v. R., 5 B. & S. 532 ; 33 
 L. J. {M. C.) 219. If a prisoner committed for obtaining a chattel 
 by false pretences be indicted in one count for that offence, and in 
 another count for obtaining another chattel by false pretences, with- 
 out any authority having been obtained under the statute to prefer 
 such second charge, the proper course is for the judge at the trial to 
 direct the second count to be quashed, and not to put the prisoner to 
 plead to it. If, however, the two counts are allowed to go to the 
 jury, and evidence is given respecting each charge, and the juiy con- 
 vict on each count, the conviction cannot be supported on either — 
 ' not on the second, because it ought to have been quashed ; nor on 
 the first, because improper evidence has been received. R. y. Fuidge, 
 L. & a 390 ; 33 L. J. (M. C.) 74. When the indictment is preferred 
 by the direction or with the consent in writing of a judge of one of 
 the superior courts, it is for the judge, to whom the application is 
 made for such direction or consent, to decide what materials ought 
 to be before him, and it is not necessary to summon the party accused, 
 or to bring him before the judge. R. v. Bray, 3 B. S S. 255 ; 32 L. 
 J. {M .C) 11. Where three persons were committed for conspiracy, 
 and afterwards the solicitor-general, acting under this statute, directed 
 a bill to be preferred against a fourth person who had not been com- 
 mitted, and all four were indicted together for the same conspiracy, 
 such a course was held to be unobjectionable.' Knowlden v. R,, 5 B. 
 & S. 532 ; 33 L. J. (Jf. C.) 219. It has been doubted whether an 
 indictment imder the 24 tfc 25 Viet. c. 115 (An Act for the Govern- 
 ment of the Navy), s. 57, for giving false evidence before a court 
 martial, is an indictment for perjury within the 22 S 23 Vict. c. 17 ; 
 R. V. Seane, A B. <& S. 947 ; 33 L. J. (M. C.) 115 ; and whether that 
 statute applies to offences committed out of England and Ire- 
 land, lb. 
 
6 Indictment. 
 
 The amendment of the law made by stat. 22 db 23 Vict. c. 17, was 
 found to be attended with the inconvenience that it was frequently 
 objected on the trial of a prisoner charged with an oflfence falling 
 under its provisions, that when before the magistrates he had not 
 been charged with, nor committed by them for, the precise oflfence 
 stated in the indictment, although it was abundantly evident from the 
 depositions that the charge made in the indictment was substantially, 
 although perhaps not in form, gone in|o before the magistrates. In 
 order to remedy this inconvenience and some other defects in the 
 criminal law, the statute 30 c6 31 Vict. c. 35 was passed, which, after 
 reciting that it is found that delay and inconvenience are frequently 
 caused by the provisions contained in s. 1 q/' 22 cfc 23 Vict. c. 17, in 
 cases not within the mischief for remedy whereof that act was made amd 
 passed, and that it is expedient to restrict the operation thereof, enacts, 
 in s.\, that the said provisions of «. 1 of 22 (6 23 Vict. c. 17, shall not 
 extend or be applicable to prevent the presentment to or finding by a 
 grand jury of any bill of indictment containing a count or counts for 
 any of the offences mentioned in the said act, if such count or counts 
 be such as may now be lawfully joined with the rest of such bill of 
 indictment, and if the same count or counts be founded (in the 
 opinion of the court in or before which the same bill of indictment 
 be preferred) upon the facts or evidence disclosed in any examina- 
 tions or depositions taken before a justice of the peace, in the pre- 
 sence of the person accused or proposed to be accused by such bill 
 of indictment, and transmitted or delivered to such court in due 
 course of law ; and nothing in the said act shall extend or be appli- 
 cable to prevent the presentment to or finding by a grand jury of any 
 bill of indictment, if such bill be presented to the grand jury with 
 the consent of the court in or before which the same may be pre- 
 ferred. For the purpose of still further preventing the preferring of 
 vexatious indictments, by visiting the prosecutor with the penalty 
 of costs if the accused should be acquitted, it is enacted by statute 
 30 <& 31 Vict. c. 35, s. 2, that, whenever any bill of indictment shall 
 be preferred to any grand jury, under the provisions of 22 c6 23 Vict. 
 c. 17, against any person who has not been committed to or detained 
 in custody, or bound by recognizance to answer such indictment, and 
 the person accused thereby shall be acquitted thereon, it shall be 
 lawful for the court before which such indictment shall be tried, in 
 its discretion, to direct and order that the prosecutor or other person 
 by or at whose instance such indictment shall have been preferred 
 shall pay unto the accused person the just and reasonable costs, 
 charges and expenses of such accused person and his witnesses (if 
 any) caused or occasioned by or consequent upon the preferring of 
 such bill of indictment, to be taxed by the proper officer of the court ; 
 and upon non-payment of such costs, charges, and expenses within 
 one calendar month after the date of such direction and order, it shall 
 be lawful for any of the superior courts of law at Westminster, or 
 any judge thereof, or for the justices and judges of the Central 
 Criniinal Court (if the bill of indictment has been preferred in that 
 court), to issue against the person on whom such order is made such 
 and the like writ or writs, process or processes as may now be law- 
 fully issued by any of the said superior courts for enforcing judg- 
 ments thereof. 
 
Sect. 2. 
 against whom an indictment lies. 
 
 An indictmetit lies against all persons who actually commit, or who 
 procure or assist in the commission of crimes, or who knowingly har- 
 bour an offender ; for each, in contemplation of law, is guilty, and 
 liable to punishment according to the part which he takes in the per- 
 petration of the offence. The capability of committing crimes, how- 
 ever, presupposes an act of imderstanding, and an exercise of will; 
 and therefore, as no person can be excused from the penalties attach- 
 ing upon the disobedience of the law, unless expressly designated and 
 exempted by the law, the law has defined what persons and actions are 
 privileged or exempted from the severity of the general punishment 
 of penal laws, in respect of their incapacities or defects, whether na- 
 tural, affected, accidental, or by reason of civil subjection. A corpo- 
 ration aggregate may also be indicted, by their corporate name, for 
 breaches of duty, whether in the nature of a nonfeasance, such as the 
 non-repair of highways or bridges which it is their duty to repair ; 
 R. V. Birmingham and Gloucester Railway Company, 9 C. & P. 469 ; 
 2 Q. -B. 47 ; 2 G. <& D. 236 ; or of a misfeasance, such as the obstruc- 
 tion of a highway by a railway company in a manner not authorized 
 by their act of parliament. R. v. Great North of England Railway 
 Company, 9 Q. B. 315. It would seem, also, that a corporation may- 
 be indicted by its corporate name, and fined, for an assault com- 
 mitted, or a libel published by its order. See Eastern Counties Rail- 
 way Company v. Broom, 6 Exch. 314: Whitfield v. South-Eastem 
 Railway Company, E., B. <& E. 115. 
 
 We proceed to consider the liability of the respective parties to 
 an offence, and the several grounds of exemption from punishment, 
 under the following heads : — 
 
 Principals in the first degree."] — The general definition of a prin- 
 cipal in the first degree is, one who is the actor or actual perpetrator 
 of the fact. 1 Male, 233, 615. But it is not necessary that he should 
 be actually present when the offence is consummated ; for if one lay 
 poison purposely for another who takes it and is killed, he who laid 
 the poison, though absent when it was taken, is a principal in the first 
 degree. Yau£s case, 4 Rep. 44 h ; Post. 349 : R. v. Harley, 4, C.& 
 P. 369. So, it is not necessary that the act should be pei-petrated 
 with his own hands; for if an offence be committed through the 
 medium of an innocent agent, the emploj'er, though absent when the 
 act is done, is answerable as a principal in the first degree. See R. 
 V. Gihs, 1 Mood. C. C. 166 : R. v. Michael, 2 Mood. C. C. 120 ; 9 C. 
 & P. 356 : R. V. Clifford, 2 C. & E. 202. Thus, if a child, under the 
 age of discretion, or any other instrument excused irom the re- 
 sponsibility of his actions by defect of understanding, ignorance of 
 the fact, or other cause, be incited to the commission of murder or 
 any other crime, the inciter, though absent when the fact was com- 
 mitted, is, ea necessitate, liable for the act of his agent, and a principal 
 in the first degree. Post. 349 ; 1 Hawk. c. 31, s. 7 : R. v. Palmer, 1 
 N. R. 96 ; 2 Leach, 978 : R. v. Butcher, 1 Bell, C.C.6; 28 L. J. (M. C.) 
 14. But if the instrument be aware of the consequences of his act, he 
 is a principal in the first degree, and the employer, if he be absent 
 when the fact is committed, is an accessory before the fact ; R. v. 
 ,R.(S;R. 363 : R. v. Williams, 1 Den. C. G 39 ; 1 C. & K. 
 
8 , Indictment. 
 
 589 ; or, if he be present, as a principal in the second degree ; Fast. 
 349 ; unless the instrument concur in the act merely for the purpose 
 of detecting and punishing the employer, in which case he is consi- 
 dered as an innocent agent. R. v. Bannen, 2 Mood. C. G. 309 ; 1 C. 
 & K. 295. 
 
 Principals in the second degree."] — Principals in the second degree 
 are those who are present, aiding and abetting, at the commission of 
 the fact. 
 
 Presence, in this sense, is either actual or constnictive. It is not 
 necessary that the party should be actually present, an ear or eye- 
 witness of the transaction; he is, in construction of law, present, 
 aiding and abetting, if, with the intention of giving assistance, he be 
 near enough to afford it, should the occasion arise. Thus, if he be 
 outside the house, watching, to prevent surprise, or the like, whilst 
 his companions are in the house committing a felony, such con- 
 structive presence is sufficient to make him a principal in the 
 second degree. Fost. 347, 350. See R. v. Borthwick, 1 Dougl. 207; 
 1 Leach, 66 ; 2 Hawle. c. 29, ss. 7, 8 ; 1 Russ. 31 ; 1 Bale, 555 : R. 
 V. Gogerly, R. & R. 343 : R. v. Owen, 1 Mood. C. 0. 296. But he 
 must be sufficiently near to give assistance ; R. v. Stewart, R. & R. 
 363 ; and the mere circumstance of a party going towards a place 
 where a felony is to be committed, in order to assist to carry off the 
 property, and assisting in carrying it off, will not make him a prin- 
 cipal in the second degree, unless, at the time of the felonious taking, 
 he were within such a distance as to be able to assist in it. R. v. 
 Kelly, R. <& R. 421 ; 1 Russ. 27. So, where two persons broke open 
 a warehouse, and stole thereout a quantity of butter, which they 
 carried along the street thu-ty yards, and then fetched the prisoner, 
 who, being apprised of the robbery, assisted in carrying away the 
 property, it was holden that he was not a principal, but only an 
 accessory. R. v. King, R. S R. 332. See R. v. M'MaUn, Ibid. : R. 
 V. Dyer, 2 East, P. C. 767. And although an act be committed in 
 pursuance of a previous concerted plan between the parties, those 
 who are not present, or so near as to be able to afford aid and assist- 
 ance at the time when the offence is committed, are not principals, 
 but accessories before the fact. R. v. Scares, R.(& R. 25: R. v. Davis, 
 Id. 113: R. V. Else, Id. 142: R. r.'BadcooJc, Id. 249: R. v. Manners, 
 1 C.& P. 801 : R. V. Howell, Q C. & P. 437 : R. v. Tuchuiell, C. & 
 Mar. 215. So, if one of them have been apprehended before the com- 
 mission of the offence by the other, he can be considered only as an 
 accessory before the fact. R. v. Johnson, C. S Mar. 218. But pre- 
 sence during the whole of the transaction is not necessary ; for in- 
 stance, if several combine to forge an instrument, and each executes 
 by himself a distinct part of the forgery, and they are not together 
 when the instrument is completed, they are, nevertheless, a^ guilty 
 as principals. R. v. Bingley, R. & R. 446. See 2 East, P. C. 768. 
 As, if A. counsel B. to make the paper, C. to engrave the plate, and 
 D. to fill up the names of a forged note, and they do so, each without 
 knowing that the others are employed for that pui-pose, B., C., and 
 D. may be indicted for the forgery, and A. as an accessory ; R. v. 
 Dade, 1 Mood. C. C. 307; for, if several make distinct parts of a 
 forged instrument, each is a principal, though he do not know by 
 whom the other parts are executed, and though it is finished by one 
 alone in the absence of the others. R. v. Kirhwood, 1 Mood C G. 
 304. See R. v. Eelly, 1 C. & E. 379. 
 
Indictment. 9 
 
 There must also be a participation in the act ; for althougli a man 
 1)6 present whilst a felony is committed, if he take no part in it and 
 ■do not act in concert with those who commit it, he will not be a 
 principal in the second degree, merely because he did not endeavour 
 to prevent the feltiny, or apprehend the felon. 1 Male, 439 ; Fast. 
 350. It is not -necessary, however, to prove that the party actually 
 aided in the commission of the offence ; if he watched for his com- 
 panions in order to prevent surprise, or remained at a convenient dis- 
 tance in order to favour their escape, if necessary, or was in such a 
 situation as to be able readily to come to their assistance, the know- 
 ledge of which was calculated to give additional confidence to his 
 •companions, in contemplation of law, he was present aiding and abet- 
 ting. So, a participation, the result of a concerted design to commit 
 a specific offence, is sufficient to constitute a principal in the second 
 degree. Thus, if several act in concert to steal a man's goods, and 
 he is induced by firaud to trust one of them, in the presence of the 
 others, with the possession of the goods, and then another of the 
 party entice the owner away, that he who has the goods may carry 
 them off, all are guilty as principals. B. v. Standley, B. & R. 305; 
 1 Russ. 29 : R. v. Passey, T C.&P. 282 : R. v. Lochett, Id. 300. So, 
 it has been holden, that to aid and assist a person, to the jurors un- 
 known, to obtain money by ring- dropping, is felony, if the jury find 
 that the prisoner was confederate with the person unknown to obtain 
 the money by means of the practice. R. v. Moore, 1 Leach, 314. So, 
 if two persons driving carriages incite each other to drive furiously, 
 and one of them run over and kill a man, it is manslaughter in both. 
 R. V. Swindall, 2 C. d; K. 230. If one encourage another to commit 
 suicide, and be present abetting him while he does so, such person 
 is guilty of murder as a principal ; and if two persons encourage each 
 other to self-murder, and one kills himself, but the other fails in the 
 attempt, the latter is a principal in the murder of the other. R. v. 
 Dyson, R. <& R. 523. See R. v. Russell, 1 Mood. C. C. 366 : R. v. 
 Alison, 8 C. (& P. 418. So, likewise, if several persons combine for 
 an unlawful purpose, or for a purpose to be carried into effect by un- 
 lawful means ; see Post. 351, 352 ; particularly, if it be to be carried 
 into effect notwithstanding any opposition that may be offered against 
 it ; Post. 353, 354 ; and one of them, in the prosecution of it, kill a 
 man, it is murder in all who are present, whether they actually aid 
 or abet or not (see the Sessinghurst-house case, 1 Hale, 461), provided 
 the death were caused by the act of some one of the party in the course 
 of his endeavours to effect the commonobjectof the assembly. 1 Hawk, 
 c. 31, s. 52 ; Post. 352 : R. v. Hodgson, 1 Leach, 6 : R. v. Plummer, 
 Kel. 109. But it is not snffioient that the common purpose is merely 
 unlawful : it must either be felonious, or, if it be to commit a misde- 
 meanor, then there must be evidence to show that the parties en- 
 gaged intended to carry it out at all hazards. R. v. Sheet, i P.d P. 
 931 : see also R. v. Luck, 3 P. S P. 483 : R. v. Craw, 8 Cox, 335. 
 Arid the act must be the result of the confederacy ; for, if several 
 are out for the purpose of committing a felony, and, upon alarm 
 and pursuit, rim different ways, and one of them kill a pursuer to 
 avoid being taken, the others are not to be considered as principals 
 in that offence. R. v. White, R. & S. 99. Thus, where a gang of 
 poachers, consisting of the prisoners and Williams, attacked a game- 
 keeper, beat him, and left him senseless upon the ground, but Wil- 
 liams returned, and whilst the gamekeeper was insensible upon the 
 .groimd, took from him his gun, pocket-book and money. Park, J., 
 
 b5 
 
10 Indictment. 
 
 held that this was robbery in Williams only. JR. v. Hawhins, 3 C. <& 
 P. 392. The purpose must also be unlawful ; for, if the original 
 object be lawful, and be prosecuted by lawful means, should one of 
 the party in the prosecution of it kill a man, although the party 
 killing, and all those who actually aid and abet hint in the act, may, 
 according to circumstances, be guilty of murder or manslaughter, 
 yet the other persons who are present, and who do not actually aid 
 and abet, are not guilty as principals in the second degree. Fost. 
 354, 365 ; 2 Hawk. c. 29, s. 9. 
 
 A mere participation in the act, without a felonious participation 
 in the design, will not be sufficient. 1 East, P. C. 268 ; B. v. Plwrif 
 mer, Kel. 109. Thus, if a master assault another with malice pre- 
 pense, and the servant, ignorant of his master's felonious design, take 
 part with him, and kill the other, it is manslaughter in the servant, 
 and murder in the master. 1 Hale, 446. So, on an indictment under 
 the statute 1 Vict. c. 85, s. 2, charging A. with the capital offence of 
 inflicting a bodily injury dangerous to life, with intent to commit 
 murder, and B. with aiding and abetting him, it was held to be essen- 
 tial, to make out the charge as against B., that he should have been 
 aware of A.'s intention to commit murder. R. v. Cruse, 8 C. & P. 
 641. 
 
 In the case of murder by duelling, in strictness both of the seconds 
 are principals in the second degree ; yet Lord Hale considers, that, as 
 far as relates to the second of the party killed, the rule of law in this 
 respect has been too far strained ; and he seems to doubt whether such 
 second should be deemed a principal in the second degi-ee. 1 Hale, 
 422, 452. However, in a late case it was holden by Patteson, J., 
 that all persons present at a prize-fight, having gone thither with the 
 purpose of seeing the prize-fighters strike each other, were principals 
 in the breach of the peace ; E. v. Perkins, 4 C. c§ P. 537 ; see JR. v. 
 Murphy, 6 C. d; P. 103 ; and upon the same principle, the seconds 
 in a duel, being participators in an unlawful act, would both be guilty 
 of murder, if death were to ensue ; and so the law was laid down in 
 a. V. Tounff, 8 as P. 644 ; and in B. v. Caddy, \ C.&K. 210. If 
 the principal was insane at the commission of the act, no person can 
 be convicted as an aider and abettor of his act. R. v. Tyler, 8 C.t& 
 P. 616. (See post, p. 17.) But where an insane man collected to- 
 gether a number of persons, who armed themselves with a common 
 purpose of resisting the lawful authorities, and in their presence he 
 shot a peace-officer who came to apprehend him under a warrant, it 
 was held that they were guilty of murder as principals in the first 
 degree ; and that no apprehension of personal danger to themselves 
 from him furnished any excuse to them for assisting in his illegal 
 acts. Id. 
 
 Aiders and abettors were formerly defined to be accessories at the 
 fact, and could not have been tried untU the principal had been con- 
 victed or outlawed. Fost. 347. But this doctrine is exploded ; and 
 it is now settled, that all those who are present aiding and abetting 
 when a felony is committed, are principals in the second degree, and 
 may be arraigned and tried before the principal in the first degree 
 has been found guilty ; 2 Hale, 223 ; and may be convicted, though 
 the party charged as principal in the first degree is acquitted. R. v. 
 Taylor, 1 Leach, 360 : Benson v. Offley, 2 Shaw. 510 ; 3 Mod. 121 • 
 B. V. Wallis, Salk. 334: B. v. Towle, B. & B. 314; 3 Price, 145; 2 
 Marsh. 466. 
 
 In treason, and in ofiiences below felony, and in all felonies in 
 
Indictment. 11 
 
 • 
 which the punishment of principals in the fii'st degree and of prin- 
 cipals in the second degree is the same, the indictment may charge 
 all who are present and abet the fact as principals in the first degree; 
 2 Hawh. c. 25, s. 64, (see MacJcaUy's case, 9 Co. 67 b :) B. v. Rogers, 
 37 L. J. {M. C.) 83, provided the offence permit of a participation ; 
 Fost. 345; or specially as aiders and abettors. R. v. OnsTiam., C. & 
 Mar. 187. But where by particular statutes the punishment was dif- 
 ferent, then principals in the second degree must have been indicted 
 specially as aiders and abettors. 1 East, P. U. 348, 350: R. v. 
 Sterne, 1 Leach, 473. If indicted as aiders and abettors, an indict- 
 ment charging that A. gave the mortal blow, and that B., C. and D. 
 were present aiding and abetting, would be sustained by evidence 
 that B. gave the blow, and that A,, C. and D. wei-e present aiding 
 and abetting ; and even if it appeared that the act was committed 
 by a person not named in the indictment, the aiders and abettors 
 might nevertheless be convicted. R. v. Borthwich, Doug. 207; 1 
 East, P. a 350. See R. v. Swindall, 2C.& K. 230. And the same, 
 though the jmy say that they are not satisfied which gave the blow, 
 if they are satisfied that one of them did, and that the others were 
 present aiding and abetting. R. v. Dovming, 1 Den. C. C 52 ; 2 C. 
 <& K. 382. Where a prisoner was convicted upon an indictment 
 which charged him with rape as a principal in the first count, and 
 as an aider and abettor ia the second, it was holden that the convic- 
 tion upon the first count was good. R. v. Polices, 1 Mood. C. C. 354 : 
 R. V. Gray, 1 C. & P. 164. See R. v. Crisham, B. v. Dovming, supra. 
 By 24 & 25 Vict. c. 94, s. 8, whosoever shall aid, abet, counsel or pro- 
 cm'e the commission of any misdemeanor, whether the same be a mis- 
 demeanor at common law, or by any act passed or to be passed, shall 
 be liable to be tried, indicted and punished as a principal offender. 
 
 Accessories before the facf] — An accessory before the fact is he 
 who, being absent at the time of the felony committed, doth yet 
 procure, counsel, command or abet another to commit a felony. 1 
 Hale, 615. 
 
 If the party be actually or constructively present when the felony 
 is committed, he is, as we have seen, (ante, p. 8,) an aider and abettor, 
 and not an accessory before the fact ; for it is essential, to constitute 
 the offence of accessory, that the party should be absent at the time 
 the offence is committed. 1 Hale, 616: R. v. Gordon, 1 Leach, bib; 
 1 East, P. a 352. 
 
 The procurement may be personal, or through the intervention of 
 a third person; Fost. 125; R. \. Earl of Somerset, 19 St. Tr. 804; 
 R. V. Cooper, b C.& P. 535 ; it may also be direct, by hire, counsel, 
 command, or conspiracy: or indirect, by evincing an express liking, 
 approbation, or assent to another's felonious design of committing a 
 felony; 2 Hawk. c. 29, s. 16; but the bare concealment of a felony 
 to be committed will not make the party concealing it an accessory 
 before the fact ; 2 Hawh. c. 29, s. 23 ; nor will a tacit acquiescence, 
 or words which amount to a bare permission, be sufficient to consti- 
 tute this offence. 1 Hale, 61G. The procurement must be continuing ; 
 for if the procurer of a felony repent, and before the felony is com- 
 mitted, actually countermand his order, and the principal notwith- 
 standing commit the felony, the original contriver wiU not be an 
 accessory. 1 Hale, 618. So, if the accessory order or advise one 
 crime, and the principal intentionally commit another; as, for in- 
 
12 Indictment. 
 
 stance, to burn a house, and instead of that he commit a larceny ; or, 
 to commit a crime against A., and instead of so doing he commit the 
 same crime against B. — the accessory will not be answerable ; 1 Hale, 
 617 ; but, if the principal commit the same offence against B. by 
 mistake, instead of A., it seems it would be otherwise. Fast. 370 et 
 seq.; hut see 1 Hale, 617; 3 Inst. 51. But it is clear that the acces- 
 sory is liable for all that ensues upon the execution of the unlawful 
 act commajQded ; as, for instance, if A. command B. to beat C, and 
 he beat him so that he dies, A. is accessory to the murder. 4 Bl. 
 Com. 37 ; 1 Hale, 617. Or if A. command B. to burn the house of 
 C, and in doing so the house of D. is also burnt, A. is accessory to 
 the burning of D.'s house. R. v. Sawnders, Plowd. 475. So, if the 
 offence commanded be effected, although by different means from 
 those commanded : as, for instance, if J. W. hire J. S. to poison A., 
 and, instead of poisoning him, he shoot him, J. W. is, nevertheless, 
 liable as accessory. Fast. 369, 370. Where the procm-ement is 
 through an intermediate agent, it is not necessary that the accessory 
 should name the person to be procured to do the act. B. v. Cooper, 
 bC.&P. 535. 
 
 Several persons may be convicted on a joint charge against them as 
 accessories before the fact to a particular felony, though the only 
 evidence against them is of separate acts done by each at separate 
 times and places. R. v. Barber, 1 C. & K. 442. 
 
 It maybe necessary to observe, that it is only in felonies that there 
 can be accessories : in high treason, every instance of incitement, etc., 
 which in felony would make a man an accessory before the fact, will 
 make him a principal traitor ; Fast. 341 ; and he must be indicted as 
 such. 1 Hale, 235. Also, all those who in felony would be acces- 
 sories before the fact, in offences under felony are principals, and 
 indictable as such. 4 Bl. Com. 36: R. v. Clayton, 1 C ^ ^. 128: 
 R. V. Moland, 2 Mood. C. C. 276 : R. v. Greenwood, 2 Dm. C. C. 
 '453^ In manslaughter, it has been said, there can be no accessories 
 before the fact, for the offence is sudden and unpremeditated; and 
 therefore, if A. be indicted for murder, and B. as accessoiy, if the 
 jury find A. guilty of manslaughter, they must acquit B. 1 Hale, 
 437, 466, 615 ; 1 Hawh. P. C. c. 30, s. 2. Where, however, the pri- 
 soner procured and gave a woman poison in order that she might take 
 it and so procure abortion, and she did take it in his absence, and died 
 of its effects, it was held that he might be convicted as an accessory 
 before the fact to the crime of manslaughter. R. v. Gaylor, 1 Dears. 
 ^S; B. C. C. 288. In the course of the argument in that case, Bramwell, 
 B., said, " Suppose a man for mischief gives another a strong Sose of 
 medicine, not intending any further injury than to cause him to be 
 sick and uncomfortable, and death ensues, woidd not that be man- 
 slaughter? Suppose, then, that another had counselled him to do it, 
 would not he who counselled be an accessory before the fact?" 
 
 Formerly an accessory could not, without his own consent, unless 
 tried with the principal, be brought to trial until the guilt of his 
 principal had been legally ascertained by conviction (1 Anne, st. 2, c. 9) 
 or outlawry. Fast. 360 ; 1 Hale, 623. But now, whosoever shall 
 counsel, procure, or command any other person to commit any felony, 
 whether the same be a felony at common law, or by virtue of any act 
 passed or to be passed, shall be guilty of felony, and may be indicted 
 and convicted either as an accessory before the fact to the principal 
 felony together with the principal felon, or after the conviction of 
 
Indictment. 13 
 
 the principal felon, or may be indicted and convicted of a substantive 
 felony, whether the principal felon shall or shall not have been pre- 
 viously convicted, or shall or shall not be amenable to justice, and 
 may thereupon be punished in the same manner as any accessory 
 before the fact to the same felony if convicted as an accessory may be 
 punished: 24 & 25 Vict. c. 94, «. 2 : provided that no person who shall 
 be once duly tried, either as an accessory before the fact or for a sub- 
 stantive felony, shall be liable to be afterwards prosecuted for the same 
 offence. Id. s. 7. And if any principal offender shall be in anywise 
 convicted of any felony, it shall be lawful to proceed against any ac- 
 cessory, either before or after the fact, in the same manner as if such 
 principal felon had been attainted thereof, notwithstanding such prin- 
 cipal felon shall die, or be pardoned, or otherwise delivered before 
 attainder ; and every such accessoiy shall upon conviction suffer the 
 same punishment as he would have suffered if the principal had been 
 attainted. Id. s. 6. The 2nd section of this statute only applies 
 where the accessory might at common law have been indicted with, 
 or after the conviction of, the principal; and therefore, where a de- 
 fendant was indicted as an accessory before the fact to the murder of 
 S. W., she having by his procurement killed herself, it was holden 
 that a like statute did not apply. B. v. Russell, 1 Mood. C. C. 366: 
 E. V. Leddington, 'd C. & P. 79. But by the 1st section it is 
 enacted, that " whosoever shall become an accessory before the fact 
 to any felony, whether the same be a felony at common law or by 
 virtue of any act passed or to be passed, may be indicted, tried, con- 
 victed and punished in all respects as if he were a prLacipal felon : " 
 so that the conviction of the principal is not now in any sense a con- 
 dition precedent to the conviction of the accessory. R. v. Hughes, 
 I Bell, C. C. 242. In R. v. Chadwich, Stafford Sum. Ass. 1850, the 
 prisoner was indicted as a principal for mm-der by arsenic, and the 
 jury found that he procured the arsenic, and caused it to be adminis- 
 tered by another person, but was absent when it was administered; 
 and thereupon it was objected that the 11 & 12 Vict. c. 46, s. 1, which 
 is similar to the 24 & 25 Vict. c. 94, s. 1, did not apply .to murder, 
 but Williams, J., overruled the objection and refused to reserve 
 the point. Greave/ Criminal Law ActSjiO (inHedi.'). Where the prin- 
 cipal and accessory are tried together, one being charged as principal 
 and the other as accessory (which will now, probably, never occur), 
 if the principal plead otherwise than the general issue, the acces- 
 sory shall not be bound to answer until the principal's plea be first 
 determined. 9 H. 7, c. 19 ; 1 Hale, 624 ; 2 Inst. 184. Wbere the 
 principal was indicted for burglary and larceny in a dwelling-house, 
 and the accessory was charged in the same indictment as accessory 
 before the fact to the said ^^ felony and Tmrglary," and the jury 
 acquitted the principal of the bm-glary, but found him guilty of the 
 larceny ; it seems the judges were of opinion that the accessory 
 should have been acquitted ; for the indictment charged him as 
 accessory to the burglary only, and the principal being acquitted of 
 that, the accessory should have been acquitted also. B. v. Dannelly 
 ■and Vaugliam, R. & R. 310; 2 Marsh. 571. Where three persons 
 were charged with a larceny, and two others as accessories, 
 in one count, and the latter were also charged separately in other 
 counts with substantive felonies, it was held that, although the 
 principals were acquitted, the accessories might be convicted on th& 
 latter counts. R. v. Pulham, ^ C. & P. 280. And now by the 6th 
 
14 , Indictmeni. 
 
 section of the 24 & 25 Vict. c. 94, it is enacted, that " any number 
 of accessories at different times to any felony, and any number of 
 receivers at different times of property stolen at one time, may be 
 charged with substantive felonies in the same indictment, and may 
 be tried together, notwithstanding the principal felon shall not be 
 included in the same indictment, or shall not be in custody or 
 amenable to justice." 
 
 If a man be indicted as accessory in the same felony to several per- 
 sons, and be found accessory to one, it is a good verdict, and judgment 
 may be passed upon him. R. v. Lord Sanchar, 9 Co. 189 ; Fast. 361 ; 
 
 1 Hale, 624. 
 
 Accessories after thefacf] — An accessory after the fact is one who, 
 knowing a felony to have been committed by another, receives, 
 relieves, comforts, or assists the felon. 1 Hale, 618; 4 Bl. Com. 37; 
 
 2 Hawk. c. 29, s. 1 ; 3 P. Wms. 475. Any assistance given to one 
 known to be a felon, in order to hinder his apprehension, trial, or 
 punishment, is sufficient to make a man an accessory after the fact ; 
 as, for instance, that he concealed him in the house ; Dalt. 530, 531 ; 
 or shut the door against his pursuers, until he should have an oppor- 
 tunity of escaping; 1 Hale, 619; or took money from him to allow 
 him to escape ; 9 jBT. 4, pi. 1 ; or supplied him with money, a horse, or 
 other necessaries, in order to enable him to escape; Hale's Sum. 218 ; 
 2 Hawh. c. 29, s. 26; or that the principal was in prison, and J. W. 
 bribed the gaoler to let him escape, or conveyed instruments to him 
 to enable him to break prison and escape. 1 Hale, 621. 
 
 But merely suffering the principal to escape will not make the party 
 an accessory after the fact ; for it amounts at most but to a mere omis- 
 sion. 9 H. i:,pl. 1; 1 Hale, 619. So, if a person supply a felon in 
 prison with victuals or other necessaries for his sustenance; 1 Hale, 
 620; or relieve and maintain him if he be bailed out of prison ; Id. ; 
 or if a physician or surgeon professionally attend a felon sick or 
 wounded, although he know him to be a felon ; 1 Hale, 332 ; or if 
 a person speak or write in order to obtain a felon's pardpn or deliver- 
 ance ; 26 Ass. 47 ; or advise his friends to write to the witnesses not 
 to appear against him at his trial, and they write accordingly ; 3 
 Inst. 139; 1 Hale, 620; or even if he himself agree, for money, not 
 to give evidence against the felon ; Moor, 8 ; or know of the felony 
 and do not discover it ; 1 Hale, 371, 618 ; none of these acts would 
 be sufficient to make the party an accessory after the fact. He must 
 be proved to have done some act to assist the felon personally. See 
 R. V. Chappie, 9 C. & P. 355. But if he employ another person 
 to do so, he will be equally guilty as if he harboured or relieved him 
 liimself. R. v. Jarois, 2 M. <& Rob. 40. 
 
 A wife is not punishable as accessory for receiving, etc. her husband, 
 although she knew him to have committed felony ; 1 Hale, 48, 621 ; 
 R. V. Manning, i C.& K. 903, n. ; for she is presumed to act under 
 liis coercion. But no other relation of persons can excuse the wilfiil 
 receipt or assistance of felons : a father cannot assist his child, a child 
 his parent, a husband his wife, a brother his brother, a master his ser- 
 vant, or a servant his master. Id. Even one may make himself an 
 accessory after the fact to a larceny of his own goods, or to a robbery 
 on himself, by harbouring the thief, or assisting in his escape. Fost. 
 123; Oromp. 41 6. pi. 4^5. If the wife alone, the husband being 
 ignorant of it, receive any other person being a felon, the wife is 
 
Indictment. 15 
 
 accessoiy, and not the husband. 1 Hah, 621. And if the husband 
 and wife both receive a felon knowingly, it shall be adjudged only 
 the act of the husband, and the wife shall be acquitted. Id. 
 
 To constitute this offence, it is necessary that the accessory have 
 notice, direct or implied, at the time he assists or comforts the felon, 
 that he h4d committed a felony. 2 Hawk. c. 29, s. 32. It is also 
 necessary, that the felony be complete at the time the assistance is 
 given ; for, if one wound another mortally, and after the wound 
 given, but before death ensues, a person assist or receive the delin- 
 quent, this does not make him accessory to the homicide ; for until 
 death ensues no miurder or manslaughter is committed. 2 Hawk, 
 c. 29, s. 35 ; 4 Bl. Com. 38. 
 
 In high treason there are no accessories after the fact, those who 
 in felony would be accessories after the fact being principals in high 
 treason (ante,p. 12) ; yet in their progress to conviction they must be 
 treated as accessories, and indicted specially for the receipt, etc., and 
 not as principal traitors. 1 Hale, 238. So, in offences under felony, 
 there are no accessories after the fact; 1 Hale, 613 ; although, if the 
 act of the receiver amount to a rescue, or to obstructing an officer of 
 justice in the execution of his duty; or the like, he would undoubtedly 
 be indictable for it as for a misdemeanor. 2 Hawk. c. 29, s. 4. Ac- 
 cessories after the fact could not, until the stat. 11 d; 12 Vict. c. 46, be 
 tried before the conviction of their principal, unless they consented 
 to it. 1 Hale, 623 ; 2 Hawk. c. 29, s. 45. But they might be tried 
 with their principal ; 1 Hale, 623; or separately, after the principal 
 had been convicted ; and having been once duly tried, they could not 
 be again indicted or tried for the same offence. (7 O. 4, c. 64, s. 10.) 
 And now, by the 24 <£ 25 Vict. c. 94, s. 3, (re-enacting the 2nd section 
 ■of the above statute 11 <& 12 Vict. c. 46,) whosoever shall become 
 an accessory after the fact to any felony, whether the same be a felony 
 at common law or by virtue of any act passed or to be passed, may 
 be indicted and convicted either as an accessory after the fact to the 
 principal felony, together with the principal felon, or after the convic- 
 tion of the principal felon, or may be indicted and convicted of a 
 substantive felony, whether the principal felon shall or shall not 
 have been previously convicted, or shall or shall not be amenable to 
 justice, and may thereupon be punished in like manner as any acces- 
 sory after the fact to the same felony, if convicted as an accessory, 
 may be punished ; provided that no person who shaU be once duly 
 tried either as an accessory after the fact or for a substantive felony, 
 shall be liable to be afterwards prosecuted for the same offence. Id. 
 B. 7. See s. 5, ante, p. 13. 
 
 On an indictment charging a man as a principal felon only, he 
 cannot be convicted of the offence of being an accessory after the 
 fact. M. V. Fallon, L. & C. 217 ; 32 L. J. (M. C.) 66. 
 
 As to the joinder of several accessories after iie fact in the same 
 indictment, see 24 & 25 Vict. c. 94, s. 6, ante, pp. 13, 14. 
 
 The receipt of stolen goods did not at common law constitute the 
 receiver an accessory, but was a distinct misdemeanor, punishable 
 by fine and imprisonment ; 1 Hale, 620 ; and although, by several 
 statutes, receivers were made accessories after the fact, and, by the 
 (repealed) stat. 7 c6 8 (?. 4, c. 29, ss. 54, 55, 60, might in certain 
 cases be indicted either as accessories after the fact to felony, or for 
 a substantive felony, or might be prosecuted for a misdemeanor, or 
 punished upon summary conviction : (see now 24 & 25 Vict. c. 96, 
 
16 Indictment. 
 
 ss. 91, 93, 97:) yet the receipt of stolen goods is still a distinct and 
 separate offence, and as such will be considered hereafter. 
 
 Infamts.']— It is a general rule, that infants under the age of dis- 
 cretion are not punishable by any criminal prosecution whatever ; 
 Mirr. c. 4, s. 16 ; 1 Sale, 27 ; 1 Hawk. c. 1, s. 1 ; but the age of 
 discretion, by the law of England, varies according to the nature of 
 the offence. 
 
 Within the age of seven years no infant can be guilty of felony, or 
 be punished for any capital offence ; for, within that age, an infant 
 is, by presumption of law, doli incapax, and cannot be endowed with 
 any discretion ; against which presumption no averment shall be 
 received. Reg. 309, 6 ; 1 Hale, 27, 28 ; 4 Bl. Com. 23 ; Mirr. c. 4, 
 s. 6 ; Phwd. 19 ; Fast. 349 ; Covip. 222, 223 ; Marsh v. Loader, 14 
 C. B., N. S. 535. But the incapacity of infants to do evil and con- 
 tract guilt ceases upon their attaining the age of fourteen years, at 
 which age they are presumed by the law to be doli capaces, and 
 capable of discerning good from evil, and are, with respect to their 
 criminal actions, subject to the same rule of construction as others 
 of more mature age. 1 Hale, 25 ; Doct. and Stu. c. 26 ; Co. Litt. 79, 
 171, 247 ; Dalt. 476, 505 ; 1 Hawk. c. 1, n. (1). Between the age 
 of seven and fourteen years an infant shall be deemed prima facie, to 
 be doli incapax, but malitia supplet cetatem, and this presumption 
 may be rebutted by strong and pregnant evidence of a mischievous 
 discretion ; for the capacity to do evil and contract guilt is not so 
 much measured by years and days, as by the strength of the delin- 
 quent's understanding and judgment. 4 Bl. Com. 23 ; 1 Hale, 25, 
 27. Thus, it is said that an infant eight years of age may be indicted 
 for murder, and shall be hanged for it ; Dalt. Just. c. 147 ; and an 
 infant between the age of eight and nine years was executed for 
 arson, it appearing that he was actuated by malice and revenge, and 
 had perpetrated the offence with craft and cunning. 1 Hale, 25. So 
 a girl of thirteen was burnt for killing her mistress ; 1 Hale, 26 ; 
 and where an infant, nine years of age, killed an infant of the like 
 age, and confessed the felony, it appearing upon examination that 
 he had hid both the blood and the body, the justices were of opinion 
 that he might lawfully be hanged, but respited the judgment that he 
 might be pai-doned. Fitz. Cor. 57. See R. v. York, Fast. 70 ; 4 Bl. 
 Com. 24'; R. v. Wild, 1 Mood. C. C. 452. But in cases of this nature 
 the evidence of a mischievous discretion, to rebut the prima facie 
 presumption of law arising from nonage, should be clear and strong 
 beyond all doubt and contradiction. 4 Bl. Com. 23 ; 1 Hale, 25, 27. 
 Where a child between the age of seven and fourteen years is in- 
 dicted for felony, two questions are to be left to the jury : first, 
 whether he committed the offence ; and secondly, whether at the 
 time he had a guilty knowledge that he was doing wrong. R. v. 
 Owen, 4: C. (& P. 236. An infant under fourteen is presumed by law 
 to be unable to commit a rape, and therefore cannot be found guilty 
 of it ; for though in other felonies malitia supplet cetatem, yet, as to 
 this particular act, the law presumes him impotent, as well as want- 
 ing in discretion. And this presumption was not affected by the 
 stat. 9 G. 4, c. 81, ss. 16, 17, which first made the offence complete upon 
 proof of penetration, without evidence of emission ; R. v. Groom- 
 bridge, 1 C.& P. 582 ; nor is any evidence admissible to show that 
 in fact the defendant had arrived at the full state of puberty, and 
 
Indictment. 17 
 
 could commit the ofifenoe. R. v. Philips, 8 C. <& P. 736 : P. v. Jor- 
 dan, 9 a <& P. 118 : B. V. Brimilow, Id. 366 ; 2 Mood. C. C. 122. 
 But he may be a principal in the second degree, if he aid and assist 
 in the commission of the offence, and it appeared that he had a mis- 
 chievous discretion ; for the excuse of impotency will not in such 
 case apply. 1 Hale, 639 ; R. v. Eldershaw, Z C. S P. 396. See R. 
 V. Allen, 1 Den. C. C. 364. 
 
 In some misdemeanors and offences that are not capital, an infant 
 is privileged, by reason of his nonage, if under twenty-one ; for in- 
 stance, if the offence charged by the indictment be a mere nonfeas- 
 ance (unless it be such a thing as he is bound to do by reason of his 
 tenure, or the like, as to repair a bridge, &o.; see B. v. Sutton, 3 A.& 
 E. 697 ; b N.& 21. 353) ; then in some cases he shall be privileged, 
 if under twenty-one, because laches shall not be imputed to him. Co. 
 Litt. 357 ; 4 Bl. Com. 22. But if he be indicted for any notorious 
 breach of the peace, as riot, battery, or for perjury, or cheating, or 
 the like, he is equally liable as a person of full age ; because, upon 
 his trial, the court, ex officio, ought to consider whether he was doli 
 capax, and had discretion to do the act with which he is charged. ,1 
 Hale, 20, 21 ; 4 Bl. Com. 22 ; 3 Bac. Abr., Infancy, {H.) 
 
 Persons non compotes mentis.'] — Every person at the age of discre- 
 tion is, unless the contrary be proved, presumed by law to be sane, 
 and to be accountable for his actions. But if there be an incapacity, 
 or defect of the understanding, as there can be no consent of the 
 will, so the act cannot be culpable. This species of non-volition is 
 either natural, accidental, or affected ; it is either perpetual or tem- 
 porary ; and may be reduced to three general heads : 1. A nativitate, 
 vel dementia naturalis ; 2. Dementia accidentalis, vel adventitia ; 3. 
 Dementia affectata. 
 
 1. Of the first, or dementia naturalis, is idiocy, or natural fatuity. 
 An idiot is one who is of non-sane memory from his birth, by a per- 
 petual infirmity, without lucid intervals ; Co. Litt. 14:1 ; and those are 
 said to be idiots who cannot number twenty, or tell the days of the 
 week, who do not know their fathers or mothers, or the like; but 
 these instances are mentioned as tests of sanity only, and are not al- 
 ways conclusive ; and, although idiocy or natural fatuity is in general 
 sufficiently apparent, the question, whether idiot or not, is a question 
 of fact triable by a jury, Bac. Abr., Idiot, (A.) ; Bro. Abr., Idiot, 4, 
 and ought to be clearly made out, in order to exempt the party from 
 punishment. R. v. Arnold, 1 Russ. 9. One deaf and dumb from his 
 birth, who has no means of learning to discriminate between right 
 and wrong, or of understanding the penal enactments of the law, as 
 applicable to particular offences, is by presumption of law an idiot ; 
 but if it can be shown that he has the use of understanding, which 
 many of that condition discover by signs, then he may be tried, and 
 suffer judgment and execution, although great caution should beob- 
 sei-ved in such proceedings. 1 Hale, 34. See R. v. Jones, 1 Leach, 
 102 : E. V. Steel, Id. 461 ; Dy. 26; Moor, 4, pi. 12; F. N. B. 233 : 
 R. V. Esther Dyson, cor. Parke, J., York Spring Ass. 1831 ; Matthews' 
 Dig. 410. 
 
 2. Adventitious insanity, or dementia accidentalis, proceeds from 
 various causes, and is of several kinds or degrees ; it is either partial 
 (an insanity upon some one subject, the party being sane upon all 
 others), or total ; permanent (usually called madness), or temporary 
 'the object of it being afflicted with his disorder at certain periods 
 
18 Indictment. 
 
 and vicissitudes only, with lucid intervals), which is usually denomi- 
 nated lunacy. 3 Bac. Abr. 86. 
 
 3. The vice of drunkenness, which produces a perfect though tem- 
 poraiy frenzy or insanity, usually denominated dementia affectata, or 
 acquired madness, will not excuse the commission of any crime ; and 
 an offender under the influence of intoxication can derive no privilege 
 from a madness voluntarily contracted, but is answerable to the law 
 equally as if he had been in the full possession of his faculties at the 
 time ; 1 Hah, 32 ; Co. Lift. 247 ; 1 Hawk c. 1, s. 6 ; although it has 
 been said, that upon an indictment for murder, the intoxication of the 
 defendant may be taken into consideration, as a circumstance to 
 show that the act was not premeditated. R. v. Grindley, 1 Buss. 8: 
 S. V. Thomas, 1 C. tSb P. 817 : R. v. Meakin, Id. 297 : but see R. v. 
 Carroll, Id. 146. But, if the primaiy cause of the frenzy be involun- 
 tary, or it have become habitual and confirmed, this species of insanity 
 will excuse the offender equally as the former descriptions of this 
 malady. Thus, for instance, if a man through the unskilfulness of his 
 physician, or the contrivance of his enemies, take that which produces 
 a temporary frenzy, he will not, whilst under the influence of the 
 frenzy, be accountable for his actions. So neither will he be liable to 
 be punished for any crime perpetrated under the influence of insanity 
 which is habitual and fixed, though caused by frequent intoxication, 
 and originally contracted by his own act. 1 Hale, 32. 
 
 We come now to consider the effect of these different kinds of in- 
 sanity. Where the deprivation of the understanding and memory is 
 total, fixed and permanent, it excuses all acts ; so likewise a man 
 labouring under adventitious insanity is, dui-ing the frenzy, entitled to 
 the same indulgence, in the same degree with one whose disorder is 
 fixed and permanent. Beverley's case, Co. 125; Co. Litt. 247; 1 
 Hale, 31. But the difficulty in these cases is to distinguish between 
 a total aberration of intellect, and a partial or temporary delusion 
 merely, notwithstanding which the patient may be capable of dis- 
 cerning right from wrong ; in which case he will be guilty in the eye 
 of the law, and amenable to punishment. Partial insanity, says Lord 
 Hale, is the condition of many, especially of melancholy persons, who 
 generally discover their defects in excessive fear and grief, and yet are 
 not wholly destitute of the use of reason ; and this partial insanity 
 seems not to excuse them in the commission of any crime. 1 Hale, 30. 
 Doubtless, he adds, most persons that are felons of themselves, and 
 others, are under a degree of partial insanity when they commit these 
 offences ; it is very difficult to define the invisible line that divides 
 perfect from partial insanity ; but it must rest upon circumstances 
 duly to be weighed and considered both by the judge and the jury, 
 lest, on the one side, there be a kind of inhumanity towards the 
 defects of human nature, or, on the other side, too great an indul- 
 gence given to great crimes. He concludes by suggesting, as the 
 best measure, that such a person as, labouring under melancholy dis- 
 tempers, hath yet as great understanding as ordinarily a child of 
 fourteen years hath, is such a person as can be guilty of treason or 
 felony. 1 Hale, 30, 412. Upon this subject many cases have been 
 decided from which it is difficult to extract any precise or definite 
 rule. See R. v. Ld. Ferrers, 19 St. Tr. 333 : R. v. Arnold, 16 St. Tr. 
 764 : R. V. Parher, Coll. 477 : R. v. Bowler, Id. 673 : R. v. Belling- 
 ham, Id. 636, Add. : R v. HadfieU, Id. 580 : R. v. Oxford, 9 C.&P. 
 525 : R. V. Tovmley, ZF.&F. 839 : R. v. Southey, ^ F. tSs F. 864 : 
 R. v. Leigh, Id. 915. It seems clear, however, that, to excuse a man 
 
Indictment, 19 
 
 fiom punishment upon the ground of insanity, it must be proved dis- 
 tinctly that he was not capable of distinguishing right from wrong at 
 the time he did the act, and did not know it to be an offence against 
 the laws of (iod and nature. 8ee JR. v. Offord, 5 C. <& P. 168. If 
 there be a partial degree of reason, a competent use of it sufficient 
 to have restrained those passions which produce the crime ; if there 
 be thought and design, a faculty to distinguish the nature of actions, 
 to discern the difference between moral good and evil, — then he will 
 be responsible for his actions. 1 Muss. 13 : B. v. M'Naughten, 10 CI. 
 <6 Fin. 200; 1 C. (& K. 130, n.: R. v. Eigginson, 1 C. & K. 129. 
 Where the intellectual faculties are sound, mere moral insanity, — 
 where a person knows perfectly well what he is doing, and that he 
 is doing wrong, but has no control over himself and acts under an 
 uncontrollable impulse, — does not render him irresponsible. R. v. 
 Burton, ?, F. & F. 772. Whether the prisoner were sane or insane 
 at the time the act was committed is a question of fact triable by the 
 jury, and dependent upon the previous and contemporaneous acts of 
 the party. Upon a question of insanity, a witness of medical skill 
 may be asked whether assuming certain facts, proved by other wit- 
 nesses, to be true, they, in his opinion, indicate insanity. R. v. 
 Frances, 4 Cox, 57, per Alderson, B., and Cresswell, J., R. v. 
 Wright, R. & R. 456 : R. v. Bearle, \ M. & Rob. 75. But such a 
 witness, who never saw the prisoner previously to the trial, but who 
 was present during the whole trial and the examination of the wit- 
 nesses, cannot, in strictness, be asked his opinion as to the state of 
 the prisoner's mind at the time of the commission of the alleged 
 crime, or his opinion whether the prisoner was conscious, at the time 
 of doing the act, that he was acting contrary to law, or whether he 
 was labouring under any and what delusion at the time, because each 
 of these questions involves the determination of the truth of the 
 matter deposed to, which it is for the jury to decide. (See the answer 
 to the fifth question in R. v. M'Naiighten, infra). Nor can such a 
 witness, although present in court during the whole trial, be asked 
 whether from the evidence he has heard he is of opinion that the 
 prisoner at the time he did the act was insane, nor whether the act 
 with which the prisoner is charged was in his opinion an act of in- 
 sanity, for these are the very points to be decided by the jury. R. 
 V. Frances, uhi supra; R. v. Wright, uhi supra. Counsel will not be 
 allowed, upon a question of insanity, to quote in his address to the 
 jury the opinions of medical writers as expressed in their books. R. 
 V. Crouch, 1 Cox, 94. 
 
 The above-cited case of R. v. M^Naughten gave rise to a dis- 
 cussion on this subject in the House of Lords, and the following 
 questions were propounded to the judges, in relation to the law 
 respecting alleged crimes committed by persons afflicted with insane 
 delusion: — 
 
 " 1st. What is the law respecting alleged crimes committed by 
 persons afflicted with insane delusion in respect of one or more 
 particular subjects or persons : as, for instance, where at the time of 
 the commission of the alleged crime the accused knew he was 
 acting contrary to law, but did the act complained of with a view, 
 under the influence of insane delusion, of redressing or revenging 
 some supposed grievance or injury, or of producing some public 
 benefit ? 
 
 " 2nd. What are the proper questions to be submitted to the jury, 
 
20 Indictment. 
 
 when a person, alleged to be afflicted with insane delusion respecting 
 one or more particular subjects or persons, is charged with the com- 
 mission of a crime, (murder, for example,) and insanity is set up as 
 a defence ? 
 
 "3rd. In what terms ought the question to be left to the jury- 
 as to the prisoner's state of mind at the time when the act was 
 committed ? 
 
 "4th. If a person, under an insane delusion, as to the existing 
 facts, commits an offence in consequence thereof, is he thereby 
 excused ? 
 
 " 6th. Can a medical man, conversant with the disease of insanity, 
 who never saw the prisoner previously to the trial, but who was 
 present during the whole trial, and the examination of all the wit- 
 nesses, be asked his opinion as to the state of the prisoner's mind at 
 the time of the commission of the alleged crime, or his opinion 
 whether the prisoner was conscious, at the time of doing the act, 
 that he was acting contrary to law, or whether he was labouring 
 imder any and what delusion at the time ?" 
 
 To these questions the judges (with the exception of Maule, J., 
 who gave on his own account a more qualified answer) answered as 
 follows: — 
 
 To the first question: — " Assuming that your Lordships' inquiries 
 are confined to those persons who labour under such partial delusions 
 only, and ai'e not in other respects insane, we are of opinion, that, 
 notwithstanding the party did the act complained of with a view, 
 under the influence of insane delusion, of redressing or avenging 
 some supposed grievance or injury, or of producing some public 
 benefit, he is nevertheless punishable, according to the nature of the 
 crime committed, if he knew, at the time of committing such crime, 
 that he was acting contrary to law, by which expression we under- 
 stand your Lordships to mean the law of the land." 
 
 To the secCnd and third questions: — "That the jury ought to be 
 told in all cases that every man is presumed to be sane, and to 
 possess a sufficient degree of reason to be responsible for his crimes, 
 until the contrary be proved to their satisfaction ; and that, to esta- 
 blish a defence on the gx-ound of insanity, it must be clearly proved 
 that, at the time of the committing of the act, the party accused was 
 labouring under such a defect of reason, from disease of the mind, 
 as not to know the nature and quality of the act he was doing, or, if 
 he did know it, that he did not know he was doing what was wrong. 
 The mode, of putting the latter part of the question to the jury on 
 these occasions has generally been, whether the accused, at the time 
 of doing the act, knew the difference between right and wrong, 
 which mode, though rarely, if ever, leading to any mistake with the 
 jury, is not, as we conceive, so accurate when put generally, and in 
 the abstract, as when put as to the party's knowledge of right 
 and wrong in respect to the very act with which he is charged. 
 If the question were to be put as to the knowledge of the accused, 
 solely and exclusively with reference to the law of the land, it might 
 tend to confound the jury, by inducing them to believe that an 
 actual knowledge of the law of the land was essential in order to 
 lead to a conviction, whereas the law is administered upon the 
 principle that every one must be taken conclusively to know it with- 
 out proof that he does know it. If the accused was conscious that 
 the act was one which he ought not to do, and if that act was at the 
 
Indictment. 21 
 
 same time contrary to the law of the land, he is punishable ; and the 
 usual course, therefore, has been to leave the question to the jm-y, 
 whether the party accused had a sufficient degree of reason to know 
 that he was doing an act that was wrong: and this course, we think, 
 is correct, accompanied with such observations and explanations as 
 the circumstances of each particular case may require." 
 
 To the fourth question: — " The answer to this question must of 
 course depend on the nature of the delusion ; but making the same 
 assumption as we did before, that he labours under such partial 
 delusion only, and is not in other respects insane, we think he must 
 be considered in the same situation as to responsibility as if the facts 
 with respect to which the delusion exists were real. For example, 
 if, under the influence of his delusion, he supposes another man to 
 be in the act of attempting to take away his life, and he kills that 
 man, as he supposes in self-defence, he would be exempt from pun- 
 ishment. If his delusion was that the deceased had inflicted a 
 serious injury to his character and fortune, and he killed him in 
 revenge for such supposed injury, he would be liable to punish- 
 ment." 
 
 And to the last question: — " We think the medical man, under the 
 circumstances supposed, cannot in strictness be asked his opinion in 
 the terms above stated, because each of those questions involves the 
 determination of the truth of the facts deposed to, which it is for the 
 jury to decide: and the questions are not mere questions upon a 
 matter of science, in which case such evidence is admissible. But 
 where the facts are admitted or not disputed, and the question 
 becomes substantially one of science only, it may be convenient to 
 allow the question to be put in that general form, though the same 
 cannot be insisted on as a matter of right." 
 
 It may be useful to observe that, if upon the trial of any person 
 for treason, murder or felony, JR. v. Little, M. <& R. 430, his insanity at 
 the time of the commission of the offemce is given in evidence, and the 
 jmy acquit him, the jmy must be required to find specially whether 
 he was insane at the time of the commission of the offence, and declare 
 whether he was acquitted on account of such insanity: and if the 
 jury find that he was insane at the time of the commission of the 
 offence, the court before whom the trial takes place must order him 
 to be kept in strict custody, in such manner as to the court shall 
 seem fit, until the Queen's pleasure be known ; and the Queen may 
 order the confinement of such person during pleasure. 39 S 40 
 G. 3, c. 94, s. 1. By the 3 (6 4 Vict. c. 54, s. 3, the same provisions 
 are extended to persons charged with misdemeanors. And if any 
 person indicted for any offence is insane, and upon arraignment is 
 found so to be by a jury lawfully impanelled for that purpose, 
 (that is, by a jury returned by the sheriff instanter, in the nature of 
 an inquest of office,) so that he cannot be tried upon such indictment; 
 or if, upon the trial of any person so indicted, he appear to the jury 
 charged on the indictment to be insane, the com-t may order that 
 finding to be recorded, and that he be kept in custody till her Ma- 
 jesty's pleasure be known : so, likewise, if any person charged with 
 any offence be brought up to be discharged for want of prosecution, 
 and appear to be insane, the com-t may order a jury to be impanelled 
 to try the sanity of such person, and, if the jury find him to be insane, 
 may order him to be kept in strict custody, in like manner, until her 
 Majesty's pleasure be known. 39 c6 40 G. 3, c. 94, s. 2. See B. v. 
 Pritchard, 1 C. & P. 303: R. v. Goode, 7 Ad. & El. 536. The course 
 
22 Indictment. 
 
 to be pursued in case a person, imprisoned under any sentence or 
 under any other than civil process, appears to be insane, is defined 
 by 27 & 28 Vict. c. 29, s. 2. See also 3 <£ 4 Vict. c. 54; 6 c6 6 Vict, 
 c. 29; 6 <6 7 Vict. c. 26; 23 & 24 Vict. c. 75; 30 7Jc<. c. 12; 32 <6 33 
 Vict. c. 78. 
 
 A grand jury have no authority by law to ignore a bill upon the 
 ground of insanity: it is their duty to find the bill, and then the 
 court, either on arraignment or trial, may order the detention of the 
 prisoner during the pleasure of the Crown. R. v. Hodges, S C. d; P. 
 195. 
 
 Persons in subjection to the power of others.'] — The same sound 
 principle which excuses those who have no mental will in the perpe- 
 tration of an offence, protects from the punishment of the law those 
 who commit crimes in subjection to the power of others, and not as 
 the result of an uneonti-oUed free action proceeding from themselves. 
 4 Bl. Com. 27; 1 Hale, 43. Thus, if A. by force take the hand of B. 
 in which is a weapon, and therewith kill C, A. is guilty of murder, 
 but B. is excused; but if merely a moral force be used, as threats, 
 duress of imprisonment, or even an assault to the peril of his life, in 
 order to compel him to kill C, it is no legal excuse. 1 Hale, 434; 
 1 East, P. C. 225. (See cmte, p. 10.) This protection also exists in 
 the public and private relations of society: public, as between sub- 
 ject and prince, obedience to existing laws being a sufficient extenu- 
 ation of civil guilt before a municipal tribunal ; and private, proceed- 
 ing fi^om the matrimonial subjection of the wife to the husband, from 
 which the law presumes a coercion, which, in many cases, excuses 
 the wife fi:om the consequence of criminal misconduct. The private 
 relations which exist between parent and child, and master and ser- 
 vant, will not, however, excuse or extenuate the commission of any 
 crime, of whatever denomination ; for the command is void in law, 
 and can protect neither the commander nor the instrument. 1 Hale, 
 44, 516. 
 
 In general, if a crime be committed by 3.feme covert in the presence 
 of her husband, the law presumes that she acted under his immediate 
 coercion, and excuses her from punishment ; 1 Hale, 45, 516 ; 1 Hawk, 
 c. 1, s. 9 ; thus, a woman who went from shop to shop uttering base 
 coin, her husband accompanying her each time to the door but not 
 going in, was holden by Bayley, J., to be under her husband's 
 coercion; MS. Durham Spring Ass. 1829; Matthews' Dig. 262; but 
 if, in the absence of her husband she commit an offence, even by his 
 order or procurement, her coverture will be no excuse ; 2 Leach, C. C. 
 1102 ; 2 East, P. C. 559: R. v. Morris, R. <& R. 270 ; 1 Hawk. c. 1, 
 s. 11 ; even though he appear at the very moment after the com- 
 mission of the offence ; and no subsequent act of his, though it may 
 render him an accessory to the felony of his wife, can be referred to 
 what was done by his wife in his absence. R. v. Hughes, 1 Russ. 21. 
 This presumption, however, may be rebutted by evidence ; and if it 
 appear that the wife was principally instrumental in the commission 
 of the crime, acting voluntarily, and not by restraint of her husband, 
 although he was present and concurred, she will be guilty and liable 
 to punishment. 1 Hale, 516; R. v. Cohen, 11 Cox, 99. Thus, a 
 married woman who swore falsely that she was next of kin to a 
 person dying intestate, and so procured administration to the effects, 
 was held responsible for the offence, though her husband was with 
 her when she took the oath. jB. t. Dicks, 1 Russ. 19. So, where a 
 
Indictment. 23 
 
 husband delivered a threatening letter ignorantly, as the agent of 
 the wife, she alone was held to be punishable. R. v. Rammond, 1 
 Leach, 447. Where stolen goods are received by a married woman 
 in the absence of her husband, and are concealed in his house with- 
 out his knowledge, she alone may be indicted and punished for the 
 offence ; but if the husband's ignorance of the transaction be not 
 satisfactorily proved, the law will, in most cases, impute the receiv- 
 ing to him. Dalt. c. 167,,p. 353. Where husband and wife were 
 convicted jointly of receiving stolen goods, it was holden that the 
 conviction of the wife could not be supported, though she had been 
 more active than her husband, because it had not been left to the 
 jury to say whether she received the goods in the absence of her 
 husband. R. v. Archer, 1 Mood. C. C. 143. See R. v. Wardroper, 
 1 Bell, C. C. 249. Husband and wife were jointly charged with 
 felonious wounding, with intent to disfigure, and to do grievous 
 bodily harm. The jury found that the wife acted under the coercion 
 of the husband, and that she did not personally inflict any violence 
 on the prosecutor. On this finding the wife was held entitled to an 
 acquittal. R. v. Smith, 1 Dears. & B. C. C. 553. This protection, 
 however, is not allowed in crimes which are mala in se, and prohi- 
 bited by the law of natm-e, nor in such as are heinous in their oha- 
 ractex-, or dangerous in their consequences ; and therefore, if a mar- 
 ried woman be guilty of treason, murder, or offences of the like 
 description, in company with and by coercion of her husband, she is 
 punishable equally as if she were sole. 1 Sale, 45, 47, 48 ; 1 Hawk. 
 c. \, s. \\; 4: Bl. Com. 29 ; 1 St. Tr. 28. See R. v. Cruse, 8 C. <& F. 
 541; 2 Mood. C. C. 53: R. v. Manning, 2 C. & K. 903, n. So, a 
 married woman may be indicted jointly with her husband for keep- 
 ing a bawdy-house, R. v. Williams, 10 Mod. 63; 1 Salk. 384; or 
 gaming-house, R. v. Dixon, 10 Mod. 335; for these are offences 
 connected with the government of the house, in which the wife has 
 a principal share. 1 Hawk. c. 1, s. 12. So, they may be jointly 
 convicted of an assault. R. v. Orase, supra. And, according to 
 the prevailing opinion, it seems that the wife may be found guilty 
 with the husband in all misdemeanors. See R. v. Ingram,, 1 Salk. 
 384 ; 4 Bl. Com. by Ryland, 29 n. (10). In a recent case, R. v. 
 Price, 8 C. (& P. 19, the common Serjeant, after consulting Bosan- 
 quet, J., and Coltman, J., doubted this distinction, and directed the 
 acquittal of a woman who was indicted with her husband for a mis- 
 demeanor in uttering a counterfeit coin. Husband and wife cannot 
 alone be found guilty of a conspiracy, for they are considered in 
 law as one person, and are presumed to have but one will. 1 Hawk, 
 c. 72, s. 8. 
 
 If a married woman incite her husband to the commission of a 
 felony, she is an accessory before the fact ; 1 Hale, 516 ; 2 Hawk, 
 c. 29, s. 34 : R. v. Manning, 2C.SK. 903, ».; but she cannot be treated 
 as an accessory for receiving her husband, knowing that he has com- 
 mitted a felony; 1 Hale, 47; nor for concealing a felon jointly with 
 her husband ; Id.; 1 Hawk. c. 1, s. 10 ; nor for receiving from her 
 husband goods stolen by him ; R. v. Brooks, Dears. C. C. 184. See 
 R. V. Archer, supra. And she will not be answerable for her hus- 
 band's breach of duty, however fatal, though she be privy to his 
 misconduct, if no duty be cast upon her, and she is merely passive. 
 R. V. Squires, 1 Russ. 16. 
 
 If a married woman, indicted jointly with her husband, be described 
 in the indictment as his wife, she need not prove her marriage, but 
 
24 Indictment. 
 
 ■will be entitled to protection if it appear that she acted under his 
 coercion ; B. v. Knight, 1 C. S P. 116 ; but the mere description will 
 be no ground for dismissing the indictment as to the wife, for the 
 indictment is joint and several, according to the facts as they may- 
 appear. 1 Sale, 46. If she be described as a single -woman, she 
 must prove her marriage ; JR. v. Jones, Kel. 37 ; and such evidence 
 must be given as will satisfy the jury of her marriage, although it is 
 not absolutely necessary that the actual marriage should be proved. 
 R. V. Atkinson, 1 Rnss.20 : B. v. HassaU, ^ C. <*/". 434 : R. v. Wood- 
 ward, SCdP. 561. /ciy ^ P;/c h^t^u^ //"Cc^ 39/ 
 
 Ignorance.] — Ignorance of the law will not excuse from the conse- 
 quences of guilt any person who has capacity to understand the law, 
 1 Hale, 42 ; see R. v. Orawshaw, 1 Bell, C. C. 303. If the offence be 
 committed in England, a foreigner cannot be excused because he 
 does not know the law. R. v. Esop, T C.&P. 456. And the same if 
 it be committed in an English ship on the high seas, which is in law 
 part of the territory of England. R. v. Lopez, R. v. Battler, 1 Dears. 
 & B. C. C. 525. Where, however, a defendant was indicted for mali- 
 ciously shooting at A. B. upon the high seas, and the offence was per- 
 petrated within a few weeks after the stat. 39 G. 3, c. 37, passed, and 
 before notice of it could have reached the place where the offence 
 was committed, the judges held, that as he could not have been tried 
 before that act passed, and as he could not have heard of it, he ought 
 to be pardoned. R. v. Bayley, R. & R. 1. Ignorance or mistake of 
 the/aci may in some cases be allowed as an excuse for the inadver- 
 tent commission of a crime ; as, for instance, if a man, intending to 
 kill a thief in his own house, kill one of his own family, he will be 
 guilty of no offence. 1 Hale, 42, 43 ; 4 Bl. Com. 27 : R. v. Lexett, 
 •Cro. Car. 538. But this rule proceeds upon a supposition that the 
 original intention was lawful ; for if an unforeseen consequence ensue 
 from an act which was in itself unlawful, and its original nature 
 wrong and mischievous, the actor is criminally responsible for what- 
 ever consequence may ensue. 4 Bl. Com. 27. 
 
 Sect. 3. 
 
 the form of an indictment. 
 
 An indictment consists of three parts : the commencement, the 
 statement, and the conclusion. We shall treat of each of these in its 
 order. 
 
 1. The Commencement. 
 
 The commencement of every indictment is thus: — " Middlesex to 
 wit: — The jurors for our lady the Queen wpon their oath present, that," 
 d:c. [so proceeding to state the offence for which the defendant is to 
 be prosecuted]. If one of the grand jurors be a quaker, or other 
 person entitled to affirm instead of taking an oath, the indictment 
 ought to commence, — The Jurors for our lady the Queen upon their 
 oath and affirmation present, &c. ; 9 C tfe P. 78 ; but this is not neces- 
 sary where, in any legal proceedings, other legal proceedings are set 
 
Indictment. 25 
 
 out by way of recital. 6 (6 7 Vict. c. 85, s. 2. An indictment com- 
 mencing — " The jurors of our lady the Queen,^' Sc, was held not to 
 be bad in arrest of judgment, or on writ of error: the words "of our 
 lady the Queen," may be rejected as surplusage, the jurors intended 
 being those mentioned in the caption of the indictment. R. v. Turner, 
 2M.dk Roh. 214 : Broome v. R., 12 Q. B. 834. And now by 14 <& 15 
 Vict. c. 100, s. 25, objections of this nature must be made before the 
 jury are sworn, and not afterwards; and if so made, the indictment 
 may forthwith be amended by order of the court. 
 
 Fc««e.]— The venue in the margin is the only part of the com- 
 mencement of an indictment that requires attention. The general 
 common law rule upon the subject is, that the venue in the margin 
 should be the county in which the offence was committed; see 2 Hale, 
 160 ; or, if the jurisdiction of the court in which the bill of indict- 
 ment is to be preferred extend only to part of the county, or, as is 
 the case with the Central Criminal Court, include more than one 
 county, 4 (6 5 TT. 4, c. 36, or be confined within the limits of a 
 borough (as to which, see 5 cfe 6 W. 4, c. 76 : R. v. Filler, 1 C. & P. 
 337, and R. v. Js. of Gloucestershire, ^ A.& E. 689), the venue in the 
 margin should be co-extensive with the jurisdiction of the court; 
 that is, it should be descriptive of the limit to which the jurisdiction 
 of the court is confined, and the offence must have been committed 
 within the limit so described. R. v. Stanhury, L. & C. 128; 31 L. J. 
 {M. C.) 88. This is the general rule of the common law; but many 
 exceptions have been made to it by statute. 
 
 1. In indictments for extortion, the venue, it is said, may be laid in 
 any county. 31 Elis. c. 5, «. 4 ; 1 Hawk. c. 68, s. 6, n. (3) ; 2 Stark. 
 Or. PL, 2nd ed. 611, n. (_k). Sed qumre; 2 Hawk. c. 26, s. 50; 2 Chitt. 
 a L. 294 (n). 
 
 2. In indictments for plundering or stealing any part of any ship 
 in distress or wrecked, stranded, or cast ashore, or any articles be- 
 longing to such ship, the venue may be laid either in the county or 
 place in which the offence was committed, or in any county or place 
 next adjoining. 24 <& 25 Vict. c. 96, s. 64. 
 
 3. In indictments for resisting or assaulting officers of the excise, 
 7 <£ 8 C. 4, c. 53, s. 43, or for offences against the revenue of the 
 customs, 16 <fi 17 Vict. c. 107, s. 304, the venue may be laid in any 
 county. For offences against the customs committed upon the high 
 seas, the venue may be laid in any place on land where the offender 
 may be or be brought. 16 & 17 Vict. c. 107, s. 275. See R. v. Cart- 
 ■wright, 4 T. E. 490. In re Nunn, 8 B. <& C. 644 ; 3 Mann. & R. lb. 
 
 4. In indictments for offences relating to the post-office, the venue 
 maybe laid in the county or place where the offence is committed, or 
 where the offender is apprehended or is in custody; and, if the offence 
 be committed in or upon or in respect of a mail, or upon a person 
 engaged in the conveyance or delivery of a post letter-bag, or post- 
 letter, or in respect of a post letter-bag, or post-letter, or a chattel, 
 or money, or valuable security sent by the post, the venue may be laid 
 in the county where the offender is apprehended or is in custody, or in 
 any county or place through any part whereof the mail, or the person, 
 or the post letter-bag, or the post-letter, or the chattel, or the money, 
 or the valuable security sent by the post, in respect of which the 
 offence is committed, shall have passed in the due course of convey- 
 ance or delivery by post : and, if the side, centre, or other part of a 
 highway, or the side, centre, bank, or other part of a river, canal, or 
 
 w. . . c 
 
26 Indictment. 
 
 navigation, constitute the boundary of two counties, the venue may be 
 laid in either county. 7 TF. 4 cfe 1 Vict. c. 36, s. 37. 
 
 5. In indictments for endeavouring to seduce soldiers or sailors 
 from their duty, or for inciting or stirring them up to mutiny, the 
 venue may be laid in any county, whether the offence be committed 
 on the high seas or in England. 37 G. 3, c. 70, s. 2; 57 G. 3, c. 7. 
 
 6. In indictments for forgery, and uttering forged instruments, the 
 venue may be laid and the offender may be tried, etc. in any county 
 or place in which he shall be apprehended or is in citstody, in the 
 same manner in all respects as if his offence had been actually com- 
 mitted in that county or place. 24 & 25 Via. c. 98, s. 41. See R. v. 
 James, IC.&P. 553 ; R. v. Smythies, 1 Den. 498 ; 19 i. J. (M. C.) 31. 
 And accessories before and after the fact in felony, and aiders and abet- 
 tors in misdemeanors, under that act, may be tried, etc. in any county 
 or place in which they shall be apprehended or are in custody, in the 
 same manner in all respects as if their offence, and the offence of their 
 principal, had been actually committed in such county or place. Id. 
 
 7. In indictments for offences against statutes relating to the stamp 
 duties, the venue may be laid either in the county where th« offence 
 was committed, or in the county in which the parties accused, or any 
 of them, shall have been apprehended. 53 G. 3, c. 108, s. 25. 
 
 8. In indictments for offences with reference to the coin of the 
 realm, where any person shall utter any counterfeit coin in any county 
 or jurisdiction, and any other counterfeit coin in any other county or 
 jurisdiction on the same day or within ten days next ensuing, or where 
 two or more persons have acted in concert in different counties or 
 jurisdictions, the offence maybe laid and charged to have been com- 
 mitted, and the offender may be tried, etc. in any one of those coun- 
 ties or jurisdictions. 24 rf; 25 Vict. c. 99, s. 28. 
 
 9. In indictments for bigamy, the venue may be laid either in the 
 county where the offender was apprehended, or is in custody, 24 & 
 25 Vict. c. 100, s. 57, or in the county in which the second marriage 
 took place. Where the indictment is preferred in the county, not 
 where the second marriage was, but where the prisoner was appre- 
 hended or is in custody, it need not state that the prisoner was 
 apprehended or is in custody in the county in which the indictment 
 is preferred. R. v. Whiley, 1 C. & K. 150 (^post, p. 883). If the 
 defendant, being in custody for a felony, be detained for bigamy, he 
 may be indicted for the bigamy in the county in which he is so de- 
 tained. R. V. Gordon, R. & R. 48. 
 
 10. In indictments for escapes, breaches of prison, and rescues, the 
 venue might formerly be laid either in the jurisdiction where the 
 offence was committed, or in that where the offender should be 
 apprehended and retaken. 4 G. 4, c. 64, s. 44. That statute is how- 
 ever wholly repealed by 28 S 29 Vict. c. 126, s. 73, Sched. 3, and it does 
 not appear that the provisions of sect. 44 are anywhere re-enacted. 
 
 11. In indictments for being at large before the expiration of a 
 sentence of transportation or penal servitude, the venue may be laid 
 either in the county where the defendant was apprehended or in that 
 from whence he was ordered to be transported, etc. 5 G. 4, c. 84, 
 «. 22; 20* 21 Vict. c. 3, s. 3. 
 
 12. In indictments against persons in the public service, or in the 
 police, for larceny or embezzlement, the venue may be laid in the 
 county or place where the defendant is apprehended or is in custody, 
 or in which the offence is committed. 24 <& 25 Vict. c. 96, s. 70. 
 
 13. In indictments for felonies or other offences committed in 
 Wales, the venue might formerly have been laid in the next adjacent 
 
Indictment. 27 
 
 English county, 26 H. 8, c. 6, s. 6, 'which extended to felonies subse- 
 quently created. E. v. Wyndham, R.dB.lQl; 3 (hmp. 78 ; 34 cfe 
 35 S. 8, c. 26, s. 84. But these statutes were repealed by implication 
 by Stat, n G.i&l W.4, c. 70, s. 19, and the 26 S. 8, c. 6, is now 
 expressly repealed by 19 cfc 20 Vict. c. 64. In indictments for offences 
 committed in Wales, the venue now must, as in England, be laid in 
 the county in which the offence is committed, unless otherwise pro- 
 vided for by statute. 
 
 14. Where an offence is committed within the county of a city or 
 town corporate, (except in London, Westminster, or the borough of 
 Southwark, 38 G. 3, c. 52, s. 10, so much of that statute as applied to 
 the cities of Bristol, Chester, and Exeter, having been repealed by 
 Stat. 5 c6 6 TF 4, c. 76, s. 109 ; see B. v. Holden, 8 G <& P. 606,) the 
 prosecutor may prefer his indictment to the jury of the next adjoin- 
 ing county, at the sessions of oyer and terminer or gaol delivery, 
 and have the offender tried there. 38 G. 3, c. 62, s. 2. See S. v. 
 Gough, 2 Doug. 791 : E. v. Mellor, R. & R. 144 : R. v. Goff, R. & R. 
 179. Or, if the bill have been found by a jury of the county of the 
 city, etc., any court of oyer and terminer or gaol delivery, holden for 
 such county of the city, etc., may order it to be tried by a jury of 
 the next adjoining county. 38 G. 3, c. 52, s. 3. In both of which 
 cases, the court before which the offender is tried and convicted may 
 order the judgment to be executed, either in the same county, or in 
 the county of a city in which the offence was committed ; 51 G. 3, 
 c. 100, s. 1 ; and may order the expenses of prosecution and wit- 
 nesses, 38 G. 3, c. 62, s. 8, and the expenses the county have been put 
 to by the removal of the prisoner there for trial, etc., 61 G. 3, c. 100, 
 s. 2, to be paid by the person (the treasurer) who would have been 
 ordered to pay the same, if the offender had been indicted and tried 
 in such county of a city, etc. {See 60 G. 3, c. 14, s. 3 ; 7 ff. 4, c. 64, 
 s. 25 ; 6 te 6 PT. 4, c. 76, s. 113 ; 5 c6 6 Vict. c. 38.) And now, by the 
 U d: 15 Vict. c. 55, 3. 19, whenever any justice or justices of the peace, 
 or coroner, acting for any county of a city or county of a town cor- 
 porate, within which her Majesty has not been pleased for five years 
 next before the passing of this act to direct a commission of oyer and 
 terminer and gaol delivery to be executed, and until her Majesty shall 
 be pleased to direct a commission of oyer and terminer and gaol de- 
 livery to be executed within the same, shall commit for safe custody 
 to the gaol or house of correction of such county of a city or town any 
 person charged with any offence committed within the limits of such 
 county of a city or town not triable at the court of quarter sessions of 
 the said county of a city or county of a town ; the commitment shall 
 specify that such person is committed pursuant to this act, and the 
 recognizances to appear to prosecute and give evidence taken by such 
 justice, justices or coroner, shall in all such cases be conditioned for 
 appearance, prosecution, and giving evidence at the court of oyer and 
 terminer and gaol delivery for the next adjoining county; and when- 
 ever any such person shall be so committed, the keeper of such gaol 
 or house of correction shall deliver to the judges of assize for such next 
 adjoining county a calendar of all prisoners in his custody so com- 
 mitted, in the same way that the sheriff of the county would be by 
 law required to do if such prisoners had been committed to the com- 
 mon gaol of such adjoining county; and the justice, justices or co- 
 roner, by whom persons charged as aforesaid may be committed, 
 shall deliver or cause to be delivered to the proper oflScer of the court 
 the several examinations, informations, evidence, recognizances, and 
 
 c2 
 
28 Indictment. 
 
 inquisitions relative to such persons at the time and in the manner 
 that would be required in case such persons had been committed to 
 the gaol of such adjoining county by a justice or justices, or coroner, 
 having authority so to commit, and the same proceedings shall and 
 may be had thereupon at the sessions of oyer and terminer and ge- 
 neral gaol delivery for such adjoining county, as in the case of persons 
 charged with offences of the like nature committed within such county. 
 
 By sect. 21, all persons so committed shall in due time, without 
 writ of habeas corpus or other writ for that pm-pose, be removed by 
 the gaoler or keeper of such gaol or house of correction, with their 
 commitments and detainers, to the common gaol of the county for 
 trial, and such removal shall not be deemed to be an escape. The 
 23rd section extends to that act the provisions of the 38 G. 3, c. 52, 
 and 51 G. 3, c. 100, as to the execution of the sentences to be passed 
 on such convicts, and as to the payment of expenses. And sect. 24 
 declares, that, for the purposes of this act, the counties named in the 
 second column of schedule (C) to the 5(& GW.i, c. 76, shall be con- 
 sidered next adjoining the counties of cities and towns corporate in 
 the first eolumn of the same schedule in conjunction with which they 
 are respectively named ; that is to say, Northumberland is considered 
 the next adjoining county to Berwick-upon-Tweed and Newcastle- 
 upon-Tyne ; Gloucestershire, to Bristol ; Cheshire, to Chester ; 
 Devonshire, to Exeter ; and Yorkshire, to Kingston-upon-HuU. It 
 is to be observed, however, that at Newcastle-upon-Tyne and Exeter 
 the assizes are now regularly held ; and at Bristol also once a year, 
 namely, in the summer. 
 
 By the 14 S 15 Viet. c. 100, s. 23, where an indictment for an 
 offence committed in the county of a city or town corporate is pre- 
 ferred at the assizes of the adjoining county, such county of the city 
 or town shall be deemed the venue (see B. v. Mellor, R. & R. 144) ; 
 and may either be stated in the margin of the indictment, with or 
 without the name of the county in which the offender is to be tried, 
 or be stated in the body of the indictment by way of venue. 
 
 15. In indictments preferred at the Central Criminal Court (the 
 jurisdiction of which comprehends the city of London and county of 
 Middlesex, and certain specified portions of the counties of Essex, 
 Kent, and Surrey; 4 tfe 5 PF. 4, c. 36, s. 2), the district within the 
 limits of its jurisdiction is to be deemed one county for all purposes 
 of venue, local description, etc. ; and the venue laid in the margin 
 shall be as follows : — " Central Criminal Court, to wit ; " and all 
 offences which in other indictments would be laid to have been com- 
 mitted in the county where the trial is had, and all material facts 
 which would be in other indictments averred to have taken place in 
 the county where the trial is had, shall, in indictments preferred and 
 tried before the said court, be laid to have been committed and 
 averred to have taken place " within the jurisdiction of the said 
 com't." 4 (6 5 TF. 4, c. 36, s. 3. As to the venue in cases where 
 indictments are removed from this court by certiorari, see sect. 11 of 
 this Chapter, post. As to the trial at this court of offences committed 
 out of its jurisdiction, under stat. 19 Vict. c. 16, see the last-mentioned 
 section, post. Persons subject to the mutiny act, who have been com- 
 mitted for the murder or manslaughter of any person subject to that 
 act, may, under certain circumstances, where the offence has been 
 committed in England or Wales, out of the jurisdiction of the Central 
 Criminal Court, be indicted and tried before that Court. 25 <& 26 
 Vict. c. 65. 
 
 16. In indictments for high treason or misprision of treason com- 
 
Indictment. 29 
 
 mitted out of the realm, the venue may be laid in Middlesex, if the 
 trial is to be in the Court of Queen's Bench ; or in such shire as the 
 Queen shall appoint, if she appoint a commission to try the offender. 
 35 H. 8, c. 2, s. 1. See 6 & 6 Ed. 6, c. 11, s. 6. Treasons com- 
 mitted in Ireland or Scotland, since the Unions, and treasons 
 committed in Wales, are not within the meaning of 36 B. 8, c. 2 ; 
 but treasons committed in the Isles of Man, Guernsey, Jersey, 
 Sark, and Aldemey, or in our foreign plantations, (which, although 
 parts of the doininions of the Crown of England, are not parts 
 of the realm, see 3 Inst. 11, 111 ; 4 Inst. 124,) are. When any 
 murder or manslaughter shall be committed on land out of the 
 United Kingdom, whether within the Queen's dominions or with- 
 out, and whether the person killed were a subject of her Majesty 
 or not, every offence committed by any subject of her Majesty, in 
 respect of any such case, whether the same shall amount to the 
 offence of murder or of manslaughter, or of being accessory to 
 murder or manslaughter, may be dealt with, inquired of, tried, deter- 
 mined and punished in any county or place in England or Ireland 
 in which such person shall be apprehended or be in custody, in the 
 same manner in all respects as if such offence had been actually 
 committed in that county or place. 24 & 25 Vict. c. 100, s. 9. A 
 British subject, therefore, who, in a foreign country, within the 
 dominion of a foreign power, murders a British subject or a foreigner 
 is triable in England under the express provisions of this section. 
 This in fact was the state of the law before the passing of 24 & 25 
 Vict. c. 100, see R. v. Aszopardi, 2 Uood. C. C. 288 ; 1 C. <& K. 203 : 
 R. V. Sawyer, B. & R. 294. It will be observed that the above sec- 
 tion refers only to murders and manslaughters committed on land. 
 As to crimes committed by British subjects or foreigners on the high 
 seas, see post, p. 30, pi. 17. In R. v. Bernard, Central Criminal Court, 
 May, 1858, i F. S F. 240, the question was raised whether, under 
 the repealed statute 9 G. 4, c. 31, s. 7, a foreigner resident in Eng- 
 land could be indicted as accessory (by means of acts done by him 
 in England) to a murder committed by a foreigner on foreigners in 
 the kingdom of France ; the prisoner, however, was acquitted. A 
 foreigner who kills another foreigner or an Englishman abroad on 
 land out of the Queen's dominions, or on the high seas on board a 
 foreign ship, is in nowise amenable to the law of England, or triable 
 in England. R. v. Lewis, 1 Dears. S B. C. C. 182 ; 26 L. J. (M. C.) 
 104 : R. V. De Mattos, 1 C.&P. 458 : R. v. Depardo, 1 Taunt. 26 ; 
 R. & R. 134. Nor can a foreigner be indicted in this country for 
 casting away a foreign ship in foreign waters, if the act do not 
 amount to piracy ; but he may be indicted here for a conspiracy in 
 this country to commit such an offence, provided the conspiracy be 
 not limited to doing the act abroad. R. v. Kohn, 4: F. d; F. 68. In 
 indictments for burning or destroying the Queen's ships, magazines, 
 etc., out of the realm, the venue may be laid in any county within 
 the realm. 12 G. 3, c. 24, s. 2. In indictments for offences com- 
 mitted out of this kingdom against the foreign enlistment act, the 
 venue may be laid at Westminster. 59 G. 3, c. 69, s. 9. Misde- 
 meanors committed in India may be tried in the Queen's Bench in 
 England. 13 G. 3, c. 63. And in indictments for offences com- 
 mitted by persons employed in any public sei-vice abroad, the 
 venue may be laid in Middlesex. 42 G. 3, o. 85, s. 1. See R. v. 
 Shawe, b M. & Sel. 403. Oppressions, crimes, and offences com- 
 mitted abroad by colonial governors, lieutenant governors, deputy 
 governors, or commanders in chief, shall be inquired of, heard and 
 
30 Indictment. 
 
 determined in the Queen's Bench in England, or before such com- 
 missioners and in such county of this realn[i as shall be assigned by 
 her Majesty's commission. 11 di 12 W. 3, t,-. 12. 
 
 17. All offences alleged to have been committed on the high seas, 
 and other places within the Admiralty of England, may be heard 
 and determined by her Majesty's justices of assize or others her 
 Majesty's commissioners by whom any court shall be holden under 
 any of her Majesty's commissions of oyer and terminer or general gaol 
 delivery, and they shall have severally and jointly all the powers 
 which by any act are given to the commissioners named in any com- 
 mission of oyer and terminer for the trying of offences committed 
 within the Admiralty of England, and may deliver the gaol, in every 
 county and franchise within the limits of their several commissions, 
 of any person committed to or imprisoned therein for any offence 
 alleged to have been committed upon the high seas, etc., and all in- 
 dictments found, and other proceedings had, by and before the said 
 justices and commissioners shall be valid : and the court is em- 
 powered to order the payment of the expenses of the prosecution of 
 such offences, in the manner prescribed by the 7 G. 4, c. 64, «. 27. 7 
 (f; 8 Vict. c. 2, 8. 1. And by sect. 2, in aU indictments preferred 
 before the said justices and commissioners under that act, the venue 
 laid in the margin shall be the same as if the offence had been com- 
 mitted in the county where the trial is had ; and all material facts, 
 which, in other indictments, would be aven-ed to have taken place in 
 the county where the trial is had, shall, in indictments preferred 
 under that act, be averred to have taken place " on the high seas." 
 (The offence need not, therefore, now be averred to have been com- 
 mitted within the jurisdiction of the Admiralty. R. v. Jones, 1 Den. 
 C. C. 101 ; 2 C (§ X. 165.) Sect. 3 provides for the commitment for 
 trial of persons charged with such offences ; and sect. 4 saves the 
 jurisdiction of the Central Criminal Court. By the Merchant Ship- 
 ping Act, 17 (& 18 Vict. c. 104, s. 267, all offences against property 
 or person committed in or at any place either ashore or afloat out of 
 her Majesty's dominions by any master, seaman, or apprentice, who 
 at the time when the offencfe is committed, is, or within tlu-ee months 
 previously has been employed in any British ship, shall be deemed 
 to be offences of the same nature respectively, and be liable to the 
 same punishments respectively, and be inquired of, heard, tried, de- 
 termined, and adjudged in the same manner, and by the same courts, 
 and in the same places as if such offences had been committed within 
 the jurisdiction of the Admiralty of England ; and the costs and ex- 
 penses of the prosecution of any such offences may be directed to be 
 paid as in the case of costs and expenses of prosecutions for offences 
 committed within the jurisdiction of the Admiralty of England. 
 The 18 (& 19 Vict, c 91, s. 21, also enacts, that if any person, being 
 a British subject, charged with having committed any crime or 
 offence on board any British ship on the high seas, or in any foreign 
 port or harbour ; or ijf any person, not being a British subject, charged 
 with having committed any crime or offence on board any British 
 ship on the high seas, is found (that is to say, is found to be at the 
 time of his trial, B. v. Lopez, 1 Dears. & B. C. C. 525) within the 
 jurisdiction of any court of justice in her Majesty's dominions, which 
 would have had cognizance of such crime or offence if committed 
 within the limits of its ordinary jurisdiction, such court shall have 
 jurisdiction to hear and try the case as if such crime or offence had 
 been committed within such limits. By 30 xSh 31 Vict. c. 124, «. 11, if 
 a British subject commits a crime onboard a British ship, or on board 
 
Indictment. 31 
 
 a foreign ship to which he does not belong, any court in the Queen's 
 dominions, which would have had cognizance of such crime if com- 
 mitted on board a British ship within the limits of the ordinary 
 jurisdiction of such court, shall have jurisdiction to hear and deter- 
 mine the case as if the said crime had been committed as last afore- 
 said. In each of the recent acts for the consolidation of the criminal 
 statute law a provision is contained, by which all indictable offences 
 in those acts respectively mentioned, which shall be committed 
 within the jurisdiction of the Admiralty, shall be deemed to be 
 offences of the same nature and subject to the same punishments as 
 if they had been committed on the land in England or Ireland, and 
 may be dealt with, inquired of, tried, and determined in any county 
 or place in England or Ireland in which the offender shall be appre- 
 hended or be in custody, in the same manner in all respects as if the 
 offence had been committed in that county or place. 24 d 25 Vict. 
 c. 96 [Larceny, etc.], s. 115 ; c. 97 [Malicious Injuries to Property], 
 s. 72; c. 98 [Forgery], «. 50; c. 99 [Offences relating to the Coin], 
 s. 36 ; c. 100 [Offences against the Person], s. 68. If a person be 
 apprehended in a borough for a larceny committed on the high seas, 
 he may be tried for that larceny before the quarter sessions of the 
 borough by virtue of the 24 <& 25 Vict. c. 96, s. 115. B. v. Peel, L. & 
 C.2il;i2L.J.(M. a)65. 
 
 A person whether a, British subject or a foreigner, who is on board 
 a British ship on the high seas, is subject to the laws of England the 
 same as if he were on British soil, such a ship being in law part of 
 the territory of the United Kingdom. R. v. Lopez, R. v. Sattler, 1 
 Dears. & B. C. C. 525 : R. v. Lesley, 1 Bell, C. C. 220. Nor is the 
 liability of the defendant, being a foreigner, affected by the fact that 
 he was in the first instance brought illegally and by force on board 
 the ship, unless the offence was committed merely for the purpose of 
 freeing himself from such unlawful restraint. Therefore, where the 
 defendant, a foreigner, having committed a crime in England, had 
 fled to Hamburg, and was there arrested and forced on board an 
 English ship, and while he was kept in custody on board such ship 
 on the high seas, killed the officer who had arrested him, not for the 
 purpose of escaping, but of malice prepense, it was held that, even 
 assuming such arrest and detention to be illegal, he was guilty of 
 murder. R. v. Sattler, supra. The prisoner was one of the crew of 
 a ship built in Holstein, whence she sailed to London. All the 
 officers and crew were foreigners. K., the registered sole owner, 
 was an alien bom, but described in the register as " of London, mer- 
 chant." The ship sailed from London under the British flag. While 
 on the voyage the prisoner killed the master on board the vessel 
 when several thousand miles from England, and 200 miles from land. 
 On the trial of the prisoner for murder these facts were proved, and 
 no evidence was given that E, had been naturalized or had obtained 
 letters of denization ; under these circumstances it was held that 
 there was no evidence that the ship was British, and that conse- 
 quently the prisoner could not be convicted in England for .this 
 offence. R. v. BJomsen, L. & C. 545; 34 L. J. (M. C.) 180. -v^ » 
 
 Before the above statutes, treasons, felonies, etc., committed upon 
 the high seas, within the jurisdiction of the Admiralty, must have 
 been inquired of, etc,, in such shire of the realm as should be 
 specially limited for that purpose by the Queen's commission. 28 
 S. 8, c. 15, d. 1. Acts of hostility by a subject of this realm against a 
 subject at sea, under colour of a foreign commission ; 11 c§ 12 W. 3, 
 
32 Indictment. 
 
 c. 7, s. 8 ; 18 ff. 2, c. 30, s. 1 ; see M. v. ^ans, 2 ^as*, P. C. 798 ; 
 forcibly boarding a merchant ship, and throwing over or destroy- 
 ing the goods ; 8 ff. 1, c. 24, s. 1 ; trading \nth pirates or fitting 
 out a vessel for that purpose ; 8 ff. 1, c. 24, s. 1 ; master or seamen 
 running away with the ship, goods, etc., or laying violent hands 
 on or confining the master, or making a revolt in the ship, etc.; 
 
 11 c6 12 W.3, c. 7, s. 9 ; see B. v. M'-Gregor, 1 C. & K. 429 ; deal- 
 mg in slaves upon the high seas, or in any place where the admiral 
 has jurisdiction, except as therein mentioned ; 5 (?. 4, c. 113 ; see B. 
 v. Zulueta, IC.&K. 215; all these offences, if committed upon the 
 high seas, were to be inquired of in the same manner ; as also the 
 offence of accessory before or after the fact, on land, or at sea, to 
 piracy. 11 tfe 12 TF. 3, c. 7, s. 10. See 8 G. 1, c. 24, s. 3. It maybe 
 necessary to mention here, that rivers in this country to the furthest 
 point of land next the sea, creeks and arms of the sea within the 
 body of a county, and the seashore between the high and low water- 
 marks when the tide is out, are not within the jurisdiction of the 
 Admiralty, or within the meaning of the term " high seas" in the 
 above statutes. See Constabh's Case, 5 Bep. 105, 6 ; Hale, De Jure 
 Mans, c. 4, p. 10 ; Admiralty Case, 12 Bep. 79 ; B. v. Bruce, B. & R. 
 242 ; 2 Leach, 1098 : B. v. Cunningham, 1 Bell, C. C. 72. But the 
 jurisdiction of the Admiralty extends over British ships, not only on 
 the high seas, but also in foreign rivers, below the bridges, where the 
 tide ebbs and flows, and where great ships go, although the municipal 
 authorities of the foreign country may be entitled to concurrent 
 jurisdiction. B. v. Anderson, L. B., 1 C. C. R. 161 ; 38 L. J. {M. C.) 
 
 12 ; and therefore where a foreigner was convicted at the Central 
 Criminal Court of manslaughter, committed on board a British ship 
 in the river Garonne, in France, about 35 miles from the sea, and 
 about 300 yards from the nearest shore, within the flow and ebb of 
 the tide, the conviction was upheld. Id. Upon an indictment for 
 larceny out of a vessel lying in a river at Wampu, in China, the pro- 
 secutor gave no evidence as to the tide flowing or otherwise where 
 the vessel lay ; but the judges held that the Admiralty had jurisdic- 
 tion, it being a place where great ships go. B. v. Allen, 1 Mood. C. 
 C. 494. The offences above mentioned, when a commission was 
 issued for the trial of them under 28 H. 8, c. 15, were inquired of, 
 tried, and determined before the judge of the Admiralty Court, and 
 two of the judges of the common-law courts, under a commission of 
 oyer and terminer ; and, in the indictment, no county was inserted in 
 the margin as venue, but instead of it merely the words " Admiralty 
 of England." Where offenders are committed to or detained in the 
 gaol of Newgate for the offences above mentioned, the Central Cri- 
 minal Court Act, 4 cfe 5 TF. 4, c. 36, s. 22, enacts, that it shall and may 
 be lawful for the justices and judges of oyer and terminer and gaol 
 delivery, to be named in and appointed by the commissions to be 
 issued under the authority of the act, or any two or more of them, to 
 inquire of, hear, and determine any offence or offences committed or 
 alleged to have been committed on the high seas, or other places within 
 the jurisdiction of the Admiralty of England, and to deliver the gaol 
 of Newgate of any person or persons committed to or detained therein 
 for any offence or offences alleged to have been done or committed 
 upon the high seas within the jurisdiction of the Admiralty of Eng- 
 land ; and all indictments found, and trials and other proceedings had 
 and taken by and before the said justices and judges, shall be valid 
 and effectual to all intents and purposes whatsoever. The same sec- 
 
Indictment. 33 
 
 tion enables the justices and judges to order the payment of costs, in 
 the manner prescribed by the stat. 7 G. 4, c. 64, s. 27. (See also 18 
 c§ 19 Vict. c. 91, s. 21, ante, p. 30.) Where any person shall, within 
 the jurisdiction of the Admiralty of England or Ireland, become 
 accessory to any felony, whether at common law or by statute, and 
 whether committed within that jurisdiction or elsewhere, or begun 
 within it and completed elsewhere, or begun elsewhere and completed 
 within it, his offence shall be felony, and the venue in the margin of 
 the indictment shall be the same as if the offence had been com- 
 mitted in the county or place in which he is indicted, and his offence 
 shall be aven-ed to have been committed "on the high seas." 24 d; 
 25 Vict. c. 94, s. 9. As to the trial of offenders in the colonies for 
 crimes committed on the high seas, or in places in which the Crown 
 has power or jm-isdiction out of her Majesty's dominions, see 
 6d!l Vict. c. 94, and 12 <& 13 Vict. c. 96. 
 
 18. In informations or indictments against the master of a ship for 
 forcing on shore or leaving behind, on shore or at sea, in any place 
 in or out of her Majesty's dominions, any person belonging to his 
 crew, the offence may be prosecuted in any court having criminal 
 jurisdiction in her Majesty's dominions, at home or abroad, where 
 such master or other person shall happen to be. 17 d: 18 Vict. c. 104, 
 ss. 207, 620. 
 
 19. Where any person, being feloniously stricken, poisoned, or 
 otherwise hurt upon the sea, or at any place out of England or Ireland, 
 shall die in England or Ireland ; or being feloniously stricken, etc., 
 in England or Ireland, shall die of the same at sea, or at any place 
 out of England or Ireland, the offence (whether in the case of prin- 
 cipal or accessory) may be dealt with, etc., in the county or place in 
 England or Ireland, in which the death, stroke, poisoning, or hurt 
 happened. 24 S 25 Vict. e. 100, s. 10. Where a man in a boat at 
 a short distance from the shore was shot by a person on the shore, 
 and died instantly, it was holden that the stroke and death were both 
 upon the high seas, and therefore triable according to the above sta- 
 tute of H. 8, and not according to the repealed stat. 2 G. 2, c. 21, of 
 which the statute of 24 tfe 25 Vict, is, with respect to murder, in effect, 
 a re-enactment. E. v. Combe, 1 Leach, 388 ; 1 East, P. C. 367. 
 
 20. Where a felony or misdemeanor is committed on the boundary 
 of two or more counties, or within the distance of 500 yards of the 
 boundary, or is begun in one county and completed in another, the 
 venue may be laid in either county, in the same manner as if it had 
 been wholly committed therein. 7 (?. 4,c. 64, s. 12. The first branch 
 of this enactment extends to the boundaries of counties only, and not 
 to prosecutions in limited jurisdictons. R. v. Walsh, 1 Mood. C. C. 
 175. This statute does not enable the prosecutor to lay the offence 
 in one county and try it in the other ; but only to lay and try it in 
 either. R. v. Mitchell, 2 Q. B. 636 ; 2 G. <& D. 274. It seems that 
 in cases of murder or manslaughterj where the cause of death arises 
 in one county, and the death takes place in another, the prisoner 
 may, under this statute, be indicted in either county. 1 Russ. C. & 
 M. by Greaves, 763 (ith ed.) 
 
 21. If a man commit a larceny, simple or compound, io one county, 
 and carry the goods with him into another,.he may be indicted for the 
 simple or compound larceny in the county in which he committed it, 
 or he may be indicted for it as for a simple larceny in the county into 
 which, or in any of the counties through which, he carried the goods ; 
 for, in contemplation of law, there is such a taking and carrying 
 
 C 5 
 
34 Indictment. 
 
 away as constitute tlie offence of larceny in every place throueh 
 which, at any distance of time, E. v. Parkin, 1 Mood. C. C. 45, the 
 goods were carried by him. 1 Bale, 507; 2 Jffah, 163 ; 3 Inst. 113; 
 1 Hawk. c. 33, g. 52 ; 4 Bl. Com. 304 ; 2 East, P. C. 771. The lar- 
 ceny itself is ambulatory, but the aggravated circumstances are 
 fixed and stationary. 1 Hale, 536 ; R. v. Thompson, 2 Buss. 174. A 
 country bank note was stolen during its transit through the post office 
 from SwindTju, in Wiltshire, to Bristol, and the same note was after- 
 wards inclosed by the defendant in a letter posted by him in Somer- 
 setshire, and addressed to the bankers at Swindon, requesting payment 
 of it, wliieh letter with its contents arrived in due course at Swindon ; 
 the defendant was held triable in Wiltshire, the possession of the post 
 office servants or of the bankers in Wiltshire being held for this pur- 
 pose to be his possession. B. v. Chyer, 1 Dears. & B. C. C. 324. So, 
 if a man, having stolen or otherwise feloniously taken any chattel, 
 money, or valuable security, or other property whatsoever, in any one 
 part of the United Kingdom, afterwards have the same in his posses- 
 sion in any other part of the United Kingdom, he may be indicted, 
 etc. in that part of the United Kingdom in which he so had the pro- 
 perty, in the same manner as if he had actually stolen it there. 24 
 (& 25 Vict. c. 96, s. 114. Where a chattel was stolen in Liverpool, 
 and was sent thence by the thief by rail, and delivered by the railway 
 company to the receiver in the county of M. for the purpose of being 
 disposed of by the receiver, and there was no evidence of any posses- 
 sion by the thief in the county of M., unless either the possession of 
 the railway company or of the receiver could be deemed his posses- 
 sion, it was held that the thief retained control over the chattel in 
 M., was therefore in possession thereof in M., and was liable to be 
 tried in M. under 24 (fc 26 Vict. c. 96, S. 1 14 ; B. v. Bogers, L. B., 1 
 C. C.R. 136 ; 37 L. J. (M. C.) 83. But if the natm-e of the property 
 be changed, an indictment for stealing the article in its original state 
 cannot be preferred in the county into which, when so changed, the 
 property is carried. B. v. Edwards, B. & R. 497 : B. v. Halhway, 
 X C. <b P. 127. Nor, where several commit a joint felony, in the 
 county of A., and there divide the goods, and afterwards separately 
 carry each his respective share into the county of B., can they be 
 indicted for a joint felony in the latter county. B. v. Bcumet, 2 Buss. 
 174. But if two persons steal a thing in one county, though one of 
 them alone carry the property into another county, yet, if both after- 
 wards co-operate to secure the thing in the latter county, both may 
 be indicted in the latter county ; for the subsequent concurrence may 
 be connected with the .previous taking. R. v. Comity, 2 Ross. 175 : 
 R. V. M^Donagh, Carr. Supp. 23. The taking into the second county, 
 however, must be animo fwrandi ; the mere possession there is not 
 sufficient. A constable took the defendant with two stolen horses in 
 Surrey, and afterwards, at his request, rode with him on the horses 
 into Kent, where he escaped ; the defendant was afterwards indicted 
 in Kent, and the judges were unanimously of opinion that there was 
 no evidence of stealing in Kent. R. v. Simmonds, 1 Mood. C. C. 408. 
 If, however, the original taking be one of which the common law 
 cannot take cognizance, as if the goods be stolen at sea, the thief 
 cannot be indicted for the larceny in any county into which he may 
 carry the goods, but the larceny must be tried as other cases within 
 the jurisdiction of the Admiralty. 3 Inst. 113 ; 1 Hawk. c. 33, s. 52. 
 A person who stole goods in the island of Jersey, had them in his 
 possession in the county of Dorset, in which he was indicted and 
 convicted ; but it was holden that the conviction was wrong, because 
 
Indictment. 35 
 
 the original taking 'was suelj whereof the common law covild not take 
 notice, and the island of Jersey not being considered part of the 
 United Kingdom, the case was not within the repealed stat. 7 (6 8 
 G. 4, c. 29, s, 76, of which the 24 S 25 Vict. c. 96, g. 114, is a re- 
 enactment, if. V. Prowe?, 1 Mood. C. C. 349. See R. v. Madge, 
 9 G c6 P. 29 : B. V. Deiruiel, 11 Co^, 207. So, where A. ripped 
 lead froijtt a church in Buckinghamshire, and afterwards having it in 
 his possession in Middlesex, was indicted in the latter county for a 
 simple larceny at common law, it was holden that he could not be 
 indicted in the latter county, the original offence not being a larceny 
 at common law, but a statutable felopy only. R. v. Millar, 1 C.& P. 
 665. By the 7 <fe 8 Vict. c. 61, «. 1, detached parts of counties are 
 to be considered for all purposes as forming part of those counties 
 of which they ai'e considered part for the purposes of the election of 
 knights of the shjre, under 2 <£ 3 Tf. 4, c. 64. See alaoi&i Vict. c. 82. 
 
 22. In indictments for felonies or misdemeanors committed upon 
 any person, or on or iu respect of any property, in or upon any coach, 
 cart, or other carriage whatsoever employed in any journey, or on 
 board any vessel whatsoever employed in any voyage or journey upon 
 any navigable river, canal or inland navigation, the venue may be 
 laid in any county through which the coach, etc., or vessel shall have 
 passed in the course of the joiuTiey or voyage during which the felony 
 or misdemeanor was committed, in the same manner as if it had been 
 actually committed therein ; and where the side, bank, centre or other 
 part of the highway, river, etc., shall constitute the boundary of two 
 counties, the venue may be laid in either of the coimties through, or 
 adjoining to, or by, the boundary of ajiy part whereof the coach, etc., 
 or vessel shall have passed in the course of the journey or voyage. 
 7 O. 4, c. 64, «. 13. This enactment is not confined to the carriages 
 of common carriers, or to public conveyances, but extends to any 
 carriage employed in any journey. R. v. Sharpe, Dea/rs. C. C. 415. 
 
 23. In indictments for conspiracies, the venue may be laid in any 
 county in which it can be proved that an act was done by any one of 
 the conspirators in furtherance of their common design. See B. v. 
 Brisac, 4 Ecist, 164- So, in indictments for compassing the Queen's 
 death, or for any of the treasons in stat. 36 G. 3, c. 7, s. 1, (made 
 perpetual by 57 G. 3, c. 6, s. 1,) the venue maybe laid in any county 
 in which a sufficient overt act can be proved. B. v. Lord Preston, 4 
 St. Tr. 410, 455 : B. v. Vane, Eel. 14, 15. See Post. 9. In an indict- 
 ment for sending a threatening letter, the venue may be laid either 
 in the county where the prosecutor received it, B. v. Girdioood, 2 
 East, P. C. 1120 ; 1 Leach, 142 : B. v. Esser, 2 East, P. C. 1125, or 
 in the county from which the offender sent it. See 1 Camp. 215 ; 2 
 Camp. 506 ; 3 JS. S Aid. 717. So, if a libel, B. v. Burdett, 4 B. & 
 Aid. 9b: B, V. Watson, 1 Camp. 215, or a letter containing a challenge, 
 be sent from the county of A. to the county of B^ the venue may be 
 laid in either county. So, if an act done in one county prove a nui- 
 sance to another, in an indictment for it, the venue may be laid in 
 either county, although it has been said to be more correct to lay it 
 in the county in which the act was done. Stavmdf. b. 2, 91. In in- 
 dictments for embezzlement, where the money has been received in 
 one county, and the receipt denied in another county, the venue has 
 been holden to be well laid in either county. .B. v. Taylor, 3 Bos. <6 
 P. 596 ; B. & B, 68 : B. v. Holson, B. & B. 56. And now, in this 
 and in aU cases in which the offence is begun in one county, and 
 
36 Indictment. 
 
 completed in another, the venue may be laid in either county. 7 G. 
 4, c. 64, s. 12 (mte, p. 33, pi. 20). 
 
 24. Accessories before the fact to aaiy felony wholly committed 
 within England or Ireland may be tried by any court which shall have 
 jurisdiction to try the principal felony, or any felonies committed 
 in any county or place in which the act by reason whereof such 
 person shall have become such accessory shall have been com- 
 mitted : and in every other case accessories before the fact maybe tried 
 by any court having jurisdiction to try the principal felony or any fe- 
 lonies committed in any county or place in which the accessory shall 
 be apprehended or be in custody; whether the principal felony shall 
 have been committed on the sea or on the land, or begun on the sea 
 and completed on the land, or begun on the land and completed on the 
 sea, and whether within her Majesty's dominions or without, or partly 
 within them and partly without. 24 <& 25 Vict. c. 94, s. 7. See R. 
 V. Wallace, 2 Mood. C. C. 200; C. & Mar. 200. An accessory 
 before the fact may however now, by virtue of the first section of 
 the same statute (ante, p. 13), be indicted, etc. in all respects as if 
 he were the principal felon. In the highest and lowest offences, high 
 treason and misdemeanor, all are principals, and must be indicted 
 as such ; that is, all persons who procure, incite, aid, abet or assist in 
 the commission of a misdemeanor, maybe indicted as principals in the 
 county in which the misdemeanor is committed, whether the procuring 
 or inciting took place in that county or not, see JR. v. Johnson, 7 East, 
 65, or in that in which the misdemeanor was begun by their procure- 
 ment ; (ante, p. 33.pl. 20 ;) and in high treason, the venue may be 
 laid in any county in which a sufficient overt act can be proved. If a 
 person in one county procure an innocent agent to commit a felony 
 in another county, he is in that case (independently of the 24 <& 25 
 Vict. c. 94, s. 2) deemed a principal in the offence, and may be in- 
 dicted for having actually committed it, the venue being laid either 
 in the county in which it was committed, Fost. 349 ; see B. v. Brisac, 
 4 East, 164, or in that in which it was begun by his procurement. 
 {Ante, p. 33, pi. 20.) 
 
 25. The above-mentioned provisions of the 24 & 25 Vict. c. 94, 
 s. 7, apply equally to the offence of an accessory after the fact to a 
 felony. As to accessories where the offence is committed within the 
 jurisdiction of the Admiralty, see ante, p. 33. 
 
 26. Receivers of stolen property, whether charged as accessories 
 after the fact, or with a substantive felony, or with a misdemeanor 
 only, may be tried in the county or place in which they have or had 
 the property in their possession, or in which the principal may by law 
 be tried, in the same manner as they may be tried in the county in 
 which the property was actually received ; 24 tfe 25 Vict. c. 96, s. 96. 
 Therefore, where the stealing is in county A., and the receiving in 
 county B., both are triable in A., and the indictment may allege both 
 the stealing and receiving to have been in A. R. v. Hinley, %M.& 
 Rob. 524. But where A., B. and C. were indicted for stealing a sheep 
 in Dorsetshu-e, and one count of the indictment also charged C., as 
 for a substantive felony, with receiving the sheep in Somersetshire, 
 not naming any one as the thief, he was held not to be triable for such 
 receiving in Dorsetshire. R. v. Martin,. 1 Den. C. C. 398. If pro- 
 perty stolen in one part of the United Kingdom be received in 
 another, the receiver may be indicted in that part of the United 
 Kingdom in which the property was received. 24 <6 25 Vict. c. 96, 
 
Indictment. 37 
 
 s. 114. It must, however, have been stolen in the United Kingdom, 
 and therefore where property was stolen in Gruernsey, which is not a 
 part of the United Kingdom, it was held that no indictment would 
 lie for receiving it here. if. v. Dehruiel, 11 Cox, 207. 
 
 Where, by the indictment or information, the court appears to have 
 jurisdiction over the offence, no objection could, since the 7 Q, 4, c. 
 64, s. 20, be taken by motion in arrest of judgment, or by writ of 
 error, for the want of a proper or perfect venue. {See R. v. Albert, 
 
 5 Q. B. 37 ; Dav. & M.9,9>: R. v. Stowell, 5 Q. B. 44 ; Dav. & M. 
 189 : R. V. Gregory, 7 Q. B. 274 : R. v. O'Connor, 5 Q. 5. 16.) And 
 now by 14 & 16 Vict. c. 100, e. 24, no indictment shall be holden in- 
 sufficient for want of a proper or perfect venue. 
 
 CapUon.J — The caption is no part of the indictment ; it is merely 
 the style of the court where the indictment was preferred, which is 
 prefixed as a kind of preamble to the indictment upon the record, 
 when the record is made up, or when it is returned to a certiorari. 
 The following is a form of the caption to an indictment in a court of 
 quarter sessions : — 
 
 " Westmoreland : At the general quarter sessions of the peace, 
 
 holden at Appleby, in and for the covmty aforesaid, the day of , 
 
 in the year of the reign of our sovereign lady Victoria, of the 
 
 United Kingdom of Great Britain and Ireland Queen, Defender of 
 the Faith, before A. B. and C. D., Esquires, and other their associates, 
 justices of our said lady the Queen, assigned to keep the peace of our 
 said lady the Qusen in the said cownty, and also to hear and determine 
 divers felonies, trespasses, and other misdemeanors, in the said county 
 committed, by the oath of" [the grand jurors, naming them] "good 
 and lawful men of the cownty aforesaid, sworn and charged to inquire 
 for our said lady the Queen, and for the body of the covmty aforesaid, 
 it is presented," that J. S., etc., so continuing the indictment. See 2 
 Hale, 166 : R. v. Feamley, 1 Leach, 425. And see the forms, 4 
 Went. 41, 105, 132, 150, 174, 222 ; 6 Went. 1, 357, 373 ; Cr. Qr. 
 Com. 327 ; 2 Hawh. c. 25, ss. 118, 126, 127, 128 ; 2 Salk. 605 ; 2 
 Stra. 865 : R. v. Warre, 1 Str. 698: R. v. Hall, 1 T. R. 320. 
 
 It has been usual to insert the names of twelve grand jurors at the 
 least in the caption, and Lord Hale says that this is necessary; fur 
 it may be the presentment was by a less number than twelve, in 
 which ease it is not good ; 2 Hale, 167 ; but in R. v. Aylett, 6 Ad, 
 
 6 Ell. 247, n., where it was objected upon error that the caption did 
 not contain the names of any of the jurors, the House of Lords, after 
 consulting the judges, affirmed the judgment of the court of Queen's 
 Bench, that this was not essential ; and in R. v. Marsh, 6 Ad. <& Ell. 
 236, the chief justice agreed that the insertion of the names is not 
 necessary. See also R. v. Davis, 1 C. & P. 470. The caption ought 
 to state them to be jurors of the county ; Whitehead v. R., 7 Q. B. 
 582 ; it must also state them to be probi et legates homines, 2 Hale, 
 167 ; see Mansell v. R., S E.S B. 54. As to the mode of rectifying a 
 mistake in the caption, see R. v. Justices of MiddleseXyb B.Jh Ad. 
 1113, and R. v. Marsh, 6 Ad. & Ell. 236. ^/.^ ^y^U^f-wu^w- 
 
 2. The Statement. 
 
 In this part of the indictment, all the ingredients 6{ the offence 
 with which the defendant is charged, the facts, circumstances, and 
 
38 Indictment. 
 
 intent constituting it, must be set forth with certainty and precision, 
 without any repugnancy and inconsistency, and the defendant must be 
 charged directly and positively with having committed it. 
 
 , Certainty as to the party indicted.'] — The defendant must be de- 
 scribed in the indictment by his christian name and surname. 2 
 Sale, 175. The inhabitants of a parish, however, may be indicted 
 for not repairing a highway, or the inhabitants of a county for not 
 repairing a bridge, without naming any of them. 2 Roll. Abr. 19. 
 
 The christian name of the defendant must be such as he obtained 
 at baptism or confirmation, see 2 Roll. Ahr. 145 ; Co. Litt. 3, or both. 
 Weilden v. Holmes, 6 Mod. 115, 116. It is said that a man can have 
 but one christian name ; 2 Sale, 175 ; but this must be understood 
 to mean merely that he cannot be named " John alias James," or the 
 like ; that is, that a second christiaji name cannot be given to him 
 after an alias dictus; see R. y. Newham, 1 Ld. Raym. 562 ; Scott v. 
 Soans, 3 East, 111 ; but it is quite clear, that if a man has acquired 
 two names at baptism, or one at baptism, and another by confirma- 
 tion, he may be indicted by both ; and if these be misplaced, as if 
 his name be Richard James, and he be named in the indictment 
 James Richard, it is as much a misnomer, and may be pleaded in 
 abatement in like manner, as if other and different names were 
 stated. Jones v. Macquillin, 5 T. R. 195. 
 
 The surname may be such as the defendant has usually gone by or 
 acknowledged ; and if there be a doubt which one of two names is 
 his real surname, the second may be added in the indictment after 
 an alias dictus. Bra. Misnom. 47, thus : " Richard Wilson, otherwise 
 called Richa/rd Layer." 
 
 If the name of the prisoner be unknown, and he refuse to disclose 
 it, he may be described as a person whose name is to the jurors un- 
 known, but who is personally brought before them by the keeper of 
 the prison ; but an indictment against him as a person to the jurors 
 unknown, without something to ascertain whom the grand jury meant 
 to designate, would be insufficient. jB. v. , R. & R. 489, 
 
 The Stat. 1 H. 5, c. 5, required that there should also be given to 
 defendants in an indictment the additions of their " estate or degree, 
 or mystery," and also of the " towns, or hamlets, or places amd 
 counties of which they were or be, or in which they be or were con- 
 versant :" and many authorities are to be found in the books as to 
 the sufficiency of the statement of these matters ; estate and degree 
 meaning the defendant's rank in life, mystery meaning his trade, art, 
 or occupation. And formerly, if either the name of the defendant or 
 the addition, either of degree or mystery, or of place, were omitted 
 or wrongly stated, it was matter for plea in abatement. But the 
 stat. 7 G. 4, c. 64, s. 19, enabled the court, if satisfied by affidavit or 
 otherwise of the truth of a plea of misnomer, or want of addition, or 
 wrong addition, forthwith to amend the indictment or information, 
 and call upon the party to plead as if no such dilatory plea had been 
 pleaded. And now, by 14 & 15 Vict. c. 100, s. 24, no indictment for 
 any offence shall be holden insufficient " for want of or imperfection 
 in the addition of any defendant," and the addition may therefore, 
 and in all the forms given in this work will henceforth, be omitted 
 altogether. An erroneous statement of the names of the defendant 
 may also now be amended under the first section of the last-men- 
 tioned act, which enables the court, whenever on the trial of any 
 indictment for any felony or misdemeanor there shall appear to be 
 
Indictment. 39 
 
 any variance between the statement in the indictment and the evi- 
 dence offered in proof thereof, in (amongst other things) " the 
 christian name or surname, or both christian name and surname, or 
 other description whatsoever, of any person or persons whomsoever 
 therein named or described," if it shall consider such variance not 
 material to the merits of the case, and that the defendant cannot be 
 prejudiced thereby in his defence on such merits, to order the indict- 
 ment to be amended according to the proof in the manner and upon 
 the terms therein mentioned (see post, Part II. Ch.I.) 
 
 Certainty as to the person against whom the offence was committed.'] 
 — In indictments for offences against the persons or property of in- 
 dividuals, the christian name and surname of the party injured must 
 be stated, if the party injured be known ; 2 Hawk. c. 25, ss. 71, 72 ; 
 as, for the murder of " John Styles" larceny of the goods of " John 
 Styles," burglary in the dwelling-house of ^^ John Styles," and therein 
 stealing the goods of " Johm Nokes," and the like. The name so 
 stated must be either the real name of the party injured, or that by 
 which he is usually known ; R. v. Norton, R. & R. 510 : R. v. Ber- 
 riman, b C.& P. 601 : Anon., & C. (& P. 408 : R. v. J. Williams, 7 
 C. & P. 298 : {see post, " Larceny:") as, for instance, upon an indict- 
 ment for the murder of a bastard child, it cannot be described by 
 the name of its mother, unless that name have been gained by repu- 
 tation. R. V. Clan-k, R. & R. 358 : R. v. Ellen Waters, 1 Mood. C C. 
 457 : R. V. Mary Evans, % db P. 765 : R. v. Stroud, 2 Mood. C. C. 
 270 ; \ C.& K. 187. A bastard is quasi nullius filius, and can have 
 no name or reputation as soon as he is bom. Co. Litt. 36. Where, 
 therefore, upon an indictment for the murder of a female bastard 
 child, whose name was to the jurors unknown, it appeared that the 
 child had not been baptized, but that the mother, the prisoner, had 
 said that she should like to have it called Mary Ann, and had herself 
 called it Mary Ann and little Mary, it was held that the child had not 
 acquired a name by reputation. R. v. Smith, 1 Mood. C. C. 402. A 
 child cannot be described as " a certain male infant of tender age, to 
 wit, of the age of, etc., and not baptized :" the indictment must either 
 state its name, or (if it have no name, either by baptism or reputation, 
 see R. V. Stroud, 2 Mood. C. C. 270 ; 1 C. (& K. 187) state it to be to 
 the jm-ors unknown. R. v. Biss, 2 Mood. C. C. 93 ; % C. & P. 773 : 
 R. V. Hicks, 1M.& Rob. 302. But the absence of a name was held 
 to be sufficiently accounted for by the child being described as 
 " then lately before born of the body of A. B. ;" R. v. Hogg, 2 M. t& 
 Roh. 380 ; see R. v. Willis^ 1 Den. C. C. 80 ; 1 C. & K. 722 ; or " a 
 certain infant female child bom of the body of A. B., and of tender 
 age, to wit, of the age of two days, and not named." R. v. Sarah 
 Waters, 1 Den. C. C. 356. TVTiere the defendant was indicted for 
 killing a woman whose name was to the jurors unknown, and who 
 he sometimes said was his wife, and sometimes not, and there was 
 no evidence of any name by which she was known, it was held, that 
 if she was not his wife, and if her name could not be ascertained by 
 any reasonable diligence, the description was correct. R. v. Camp- 
 bell, 1 C. '<& K. 82. No addition is requisite ; 2 Hale, 182 ; and it 
 has been said that if stated it need not be proved; R. v. Graham, 2 
 Leach, 547 : R. v. Ogilvie, 2 C. & P. 230 ; however in R. v. Deeley, 
 1 Mood. C. C. 303 ; 4 C. c6 P. 579, where a defendant was indicted 
 for marrying E. C, vndow, his first wife being alive, it was holden 
 that the addition was material. AVhere it appeared that the party 
 
40 rndictment 
 
 injured had a mother of the same name, the court held that it was 
 not necessary to distinguish her in the indictment by the addition 
 " the younger," although it was objected that in such a case, where , 
 such an addition is not given, the presumption is, that it is the parent 
 and not the child that is intended ; and some cases were cited to that 
 effect. H. V. Peace, 3 £. <& Aid. 579. But where the person injured 
 has a name of dignity, as a peer, baronet, or knight, he should be 
 described by it ; and it should seem, that if he were described as a 
 knight, when, in fact, he is a baronet, or the contrary, the variance 
 would (unless amended) be fatal, because a name of dignity (baronet, 
 for instance) is not merely an addition, but is actually a part of the 
 name. 2 Hawk. c. 25, ss. 71, 72. A baron has been held well described 
 as Lord A. B. v. Pitts, 8 C. (& P. 771 : B. v. Elliott, Id. 772, n. An 
 indictment for a libel upon a person who was formerly the reigning 
 Duke of Brunswick and Luneburg, but was then residing as a private 
 person in this country, but commonly called the Duke of Brunswick, 
 was held to describe him sufficiently as " C, Duke of Brunswick and 
 Luneburg." B. v. Gregory, 8 Q. B. 508. So " His Royal Highness 
 the Duke of Cambridge" has been (considered sufficient, without 
 setting forth any of his christian names. B. v. Frost, Dears. C. C. 
 474. 
 
 An indictment for stealing the shroud of a dead person must state 
 it to be the goods and chattels of the executor or administrator ; 2 
 Hale, 181 ; or if there be no will and no administration, it should 
 seem that it may be laid to be the goods of the person who defrayed 
 the expenses of the burial, or formerly of the ordinary, if the shroud 
 were purchased with the money of the deceased. So, if a coffin be 
 stolen, it may be described in the same manner ; or if, from length 
 of time, it be difficult to ascertain the personal representatives of 
 the deceased, it may be laid as the property of a person unknown ; 
 but it cannot be described as the property of the churchwardens of 
 the parish from which it was stolen. Anon., 2 East, P. C. 652. If 
 goods, the property of a deceased person, be stolen after his death, 
 and before administration granted, the property must formerly have 
 been laid in the ordinary, and not in the administrator ; for the rights 
 of the administrator commence only from the date of the letters of 
 administration, and in this respect differ from those of an executor, 
 which take effect from the death of his testator. B. v. Smith, 1 C. & 
 P. 147. Where the stealing was from the person of a corpse in the 
 highway, in the diocese of W., and it appeared that the last place of 
 abode of the deceased person was in the diocese of G., but that he 
 had left it, and was on his way to come to live with his father in the 
 diocese of W., the property was held to be well laid in the bishop 
 of W. B. V. Tippin, C. & Mair. 545. Where some of the 
 articles mentioned in an indictment for larceny were shown to have 
 been in the possession of the deceased at the time of her death ; as 
 to the others, it was shown that they had belonged to the deceased, 
 and were taken, on the day of her funeral, by the defendant, to the 
 house of A. ; and it was proved that search had been unsuccess- 
 fully made for a will in the deceased's drawers and boxes ; and 
 that no administration had been taken out ; it was held, first, that 
 there was sufficient evidence of an intestacy, and that the pro- 
 perty was rightly laid in the ordinary ; secondly, that a conviction 
 for larceny of all the articles mentioned in the indictment was proper. 
 B. V. Johnson, 1 Dears. & B. C. C. 340. And it would seem that 
 where the property should formerly have been laid in the ordinary, 
 
Indictment. 41 
 
 it should now be laid in the judge of the Court of Probate. The 
 21 (& 22 Vict. c. 95, s. 19, enacts, that " from and after the decease of 
 any person dying intestate, and until letters of administration shall 
 be granted in respect of his estate and effects, the personal estate 
 and effects of such deceased person shall be vested in the judge of 
 the Court of Probate for the time being, in the same manner and 
 to the same extent as heretofore they vested in the ordinary." On 
 an indictment for larceny, it was proved that the larceny took place 
 after the death of the owner of the goods, and there was no proof of 
 any will or letters of administration. The indictment laid the pro- 
 perty as that of A. and B., who were not shown to be either exe- 
 cutors or administrators of the deceased, but it was proved ' that on 
 the death of the owner they had taken on themselves the general 
 charge of his property. The indictment Was held to be good, and 
 the property to be well laid in A. and B. B. v. King, i F. <& F. 
 493. If property be stolen out of the possession of a bailee, it may 
 be described in the indictment as the property either of the bailor 
 or the bailee ; 2 Hale, 181 ; although the goods were never actually 
 in the real owner's possession, but in possession of the bailee only. 
 R. V. Remnant, R. t& R. 136 : 4 C <6 P. 391. As, for instance, goods 
 left at an inn, R. v. Todd, 2 East, P. C. 653, or entrusted to a person 
 for safe keeping, R. v. Taylor, 1 Leach, 356 : R. v. Statham, lb. ; or 
 to a carrier to carry, R. v. JDeahin, 2 East, P. C. 653 ; see R. v. 
 Spears, 2 Leach, 826 ; 2 East, P. C. 668 ; cloth to a tailor to make 
 into clothes ; linen to a laundress to wash, R. v. Packer, 2 East, P. C. 
 653 ; 1 Leach, 357 ; goods pawned and the like — may be laid to be 
 the goods and chattels of the person to whom they are so entrusted, 
 etc., or of the owner, at the option of the prosecutor. See 2 Hale, 
 181 ; 1 Hale, 613 ; 2 East, P. C. 652 ; 1 Hawk. c. 33, s. 47 ; 2 Leach, 
 875. So, where cattle were alleged in the indictment to be the pro- 
 perty of a person, who, it appeared in evidence, was merely the 
 agister, and not the actual owner, the judges held it to be sufficient. 
 R. V. Woodward, 2 East, P. C. 653. The property in money stolen 
 by the prisoner from the shop of an industrial society, in which he is 
 a partner, is well laid in the sole manager of the business, who is also 
 a partner in the society and in possession of the shop, and responsible 
 to the society for all moneys coming into his possession. R. Y.Web- 
 ster, L. & C.ll ; 31 L. J. {M. C.) 17. So, where the prisoner stole 
 money from the shop of an industrial society of which he was a mem- 
 ber, and one of the committee of management, and the shop was 
 under the management of a boy of thirteen, who accounted daily to 
 the treasurer of the society for the moneys received by him, it was 
 held that the property in the money was well laid in the boy. R. v. 
 Burgess, L. <& C. 299; 32 L. J. (M. C.) 185. A box belonging to a 
 benefit society was stolen from a room in a public-house ; two of 
 the stewards had keys of this box, and by the rules of the society the 
 landlord ought to have had a key, but, in fact, had not ; it was holden 
 that the prisoner might be convicted on a count laying the property 
 in the landlord alone. R. v. Wymer, A C. (& P. 391. See R. v. Cain, 
 C. & M. 309 ; 2 Mood. C. C. 204. Iron stolen from the bed of a canal, 
 while it was beiag cleansed, was held to be well laid as the property 
 of the canal company, though they were not themselves carriers of 
 goods. R. V. Rowe, 1 Bell, C. C. 93. But where a bailor steals his 
 own goods from his bailee, they must be described in the indictment 
 as the goods of the bailee. R. v. Wilkinson, R. <& R. 470 : R. v. 
 Bramley, Id. 478. Where a bailee by mistake parts with the pos- 
 
42 Indictment. 
 
 session of a chattel to a person not entitled to it, Ms special property 
 in it is not divested, and it may be described as his ia the indict- 
 ment, a. V. Vincent, 2 Dm. C. C. 464. Goods must not, however, 
 be described as the property of one who has neither the actual nor 
 constructive possession of them. B. v. Adams, B. & B. 225. Thus, 
 if it appear that the person named as owner is merely servant to the 
 real owner, the defendant must be acquitted ; 2 East, P. C. 652 ; for 
 a servant has not a special property in the goods, the possession of 
 the servant being the possession of the master. B. v. Hutchinson, 
 B. t& B. 412 ; 2 Buss. 168. So, where the person named as owner 
 appears to be a married woman, the defendant must, unless the in- 
 dictment is amended, be acquitted ; (excepting where the husband 
 and wife have been judicially separated ; 20 ^ 21 Viet. c. 85, s. 25, 
 or where the wife has obtained a protection order under 20 <& 21 Vict, 
 c. 85, s. 2rL: because in law the goods are the property of the hus- 
 band; 1.^^6,513; even though she be living apart fi-om her husband 
 upon an income arising from property vested in trustees, for her sepa- 
 rate use, because the goods cannot be the property of the trustees ; 
 and, in law, a married woman has no property. B. v. French, B. & 
 B. 491 ; see B. v. Wilford, Id. 517. But where the goods were stolen 
 from a feme sole, and before indictment found she married, it was 
 holden, that describing her as the owner of the goods by her maiden 
 name was suflScient. B. v. Tv/mer, 1 Leach, 536. Goods let with a 
 ready-ftirnished lodging must, if a larceny of them be committed by 
 a third person, be described as the goods of the lodger, for the owner 
 neither has nor is entitled to the possession ; B. v. Belstead, B. & B. 
 411 : B. V. Brunswick, 1 Mood. C. C. 26 ; 2 Buss. 154 ; but if a larceny 
 be committed by the lodger, then the goods may be described as the 
 property of the owner, or person letting to hire. 24 d; 25 Vict. c. 
 96, s. 74 : see B. v. HeaUy, 1 Mood. C. C. 1. Goods seized under a 
 writ of fieri facias may be described as the goods of the party against 
 whom the writ issued ; for, although they are in custodid legis, the 
 original owner continues to have a property in them until they are 
 sold. B. V. EastaU, 2 Bms. 153. So, if A. steals the goods of B., and 
 afterwards C. steals the same goods from A., they may be described 
 as the goods of either B. or A., for the possession of the former is 
 not divested by the tortious taking. B. v. Wilhins, 1 Leach, 522, 
 523 ; 1 Hale, 537 ; 2 East, P. C. 654. Clothes or other necessaries 
 furnished by a father to his child may, it seems, be laid as the property 
 either of the father or of the child, particularly if the child be of 
 tender age ; B. v. Hayne, 12 Co. 113 ; 2 East, P. C. 654 ; but it is 
 safer, perhaps, to allege them to be the property of the child. See B. 
 V. Forsgate, 1 Leach, 463, 464, n. : B. v. Hughes, C. & Mar. 593. 
 
 Formerly, where goods stolen were the property of partners, or 
 joint owners, all the partners or joint owners must have been cor- 
 rectly named in the indictment, otherwise the defendant would have 
 been acquitted. But now, whenever it may be requisite, in any in- 
 dictment or information for any felony or misdemeanor, to state the 
 ownership of any property whatsoever, whether real or personal, 
 belonging to or in the possession of more than one person, whether 
 partners in trade, joint tenants, parceners or tenants in common, 
 (including joint- stock companies and trustees,) one person only need 
 be named, and the property maybe described as belonging to the one 
 person so named, and another or others, as the case may be ; which 
 description will also be sufficient whenever it may be necessary to 
 mention such persons in any indictment or information. 7 G. 4, o. 64, 
 
Indictment. 43 
 
 s. 14. The words of this statute are " another or others ;" and there- 
 fore, Tvhere a prisoner was indicted for stealing paper, the property 
 of George Eyre and others, and it appeared in evidence that the paper 
 was the property of George Eyre and another only, viz. Andrew 
 Strahan, his partner, the prisoner was acquitted — Per Denman, Com. 
 Serj., S. V. Hampton, Greenw. Col. Stat. 143. See S. v. Kealey, 2 Den. 
 C. C. 68. But it is not necessary that a strict legal partnership 
 should exist. Where C. and D. carried on business in partnership, 
 and the widow of C, upon his death, without taking out administra- 
 tion, acted as partner, and the stock was afterwards divided between 
 her and the surviving partner, but, before the division, part of the 
 stock was stolen, it was holden that the goods were properly described 
 as the joint property of the surviving partner and the widow, upon 
 an objection that the children of C. ought to have been joined, or the 
 goods described as the property of the surviving partner and the 
 ordinary, no administration having been taken out. R. v. Gaby, 
 R. & R. 178. And where a father and son took a farm on their joint 
 account, and kept a stock of sheep, their joint property, and, upon 
 the death of the son, the father carried on the business for the joint 
 benefit of himself and his son's children, who were infants, it was 
 holden, upon an indictment for stealing sheep bred from the joint 
 stock, some before and some after the death of the son, that the 
 property was well laid in the father and his son's children. R. v. 
 Scott, R.&R.l^; 2 East, P. C. 655. In an indictment for stealing 
 a bible, a hymn-book, etc., from a methodist chapel, the goods were 
 laid as the property of John Bennett and others, and it appeared 
 that Bennett was one of the society and a trustee of the chapel : 
 Parke, J., held that the property was laid correctly. R. v. Boulton, 
 5 as P. 637. 
 
 In indictments or informations by or on behalf of joint-stock bank- 
 ing copartnerships, for stealing or embezzling money, goods, effects, 
 bills, notes, securities or other property belonging to them, or for any 
 fraud, forgery, crime or offence committed against or with intent to 
 injure or defraud such co-partnerships, the money, etc. may be stated 
 to be the property of, and the intent may be laid to defraud, any one 
 of the public officers of such copartnerships ; and the name of any 
 one of their public officers may be used in all indictments or informa- 
 tions where it otherwise would be necessary to name the persons 
 forming the company. 7 G. 4, c. 46, s. 9. Doubts had existed whether 
 in such case the intent must be laid to be to defraud the public 
 officer, or whether this statute was in this respect cumulative only, 
 and the prosecutor might therefore, at his option, describe the 
 property, or lay the intent, according to this statute, or according to 
 the Stat. 7 G. 4, c. 64, s. 14 (ante,p. 42) or the (repealed) stat. 11 &. 4 c6 
 1 W. 4, c. 66, «. 28, by which it was sufficient in any indictment for 
 forgery to name one person only, where the intent was to defraud a 
 company, society or number of persons, and to allege the offence to 
 have been committed with intent to defraud the person so named, 
 and another or others, as the case might be : see R. v. Burgiss, 7 C. 
 <& P. 490 : R. V. James, Id. 553 : it seems, howeyer, to have been at 
 one time considered to be settled that, whether in an indictment 
 against a person not a member of the company, under 7 G. 4, c. 46, 
 s. 9, or in an indictment under the stat. 1 <£ 2 Vict. c. 96 (continued 
 and extended by 3 <fc 4 Vict. c. Ill, and made perpetual as so ex- 
 tended by 5 t6 6 Vict. c. 85, «. 1), against a shareholder in a joint- 
 stock banking company, for stealing or embezzling the goods or 
 money of the company, the intent must be alleged to be to defraud, 
 
44 Indictment. 
 
 or the property mu.it be laid in, a public officer of the company, 
 duly appointed and registered under the acts. Chapman v. Milvain, 
 5 Exch. 61 : see R. v. Atkinson, 2 Mood. C. G. 278 ; C. & Mar. 525. 
 But it has now been holden that the 7 G. 4, c. 64, s. 14, applies, 
 and that, under it, an indictment laying the property in one of the 
 members of the company, and others, is proper. R. v. Pritchard, L. 
 c6 a. 34 ; 30 L. J. (M. C.) 169. Where a banking company is 
 registered under " The Companies Act, 1862," 25 & 26 Vict. c. 89, it 
 would seem that the property ought to be laid in the company by its 
 corporate name. See sect. 18 of that stat. 
 
 In indictments or informations for any felony or misdemeanor com- 
 mitted in, upon, or with respect to any bridge, court, gaol, house of 
 correction, infirmary, asylum, or other public building, erected or 
 maintained in whole or in part at the expense of any county, riding, 
 or division, or on or with respect to any goods or chattels whatsoever, 
 provided for or at the expense of any county, etc., to be used for 
 making, altering or repairing any bridge or any highway at the ends 
 thereof, or any court, etc., or to be used in or with any such court 
 or other building, the property, whether real or personal, may be 
 described as belonging to the inhabitants of such coimty, etc., without 
 specifying their names. 7 G. 4, c. 64, e. 15. 
 
 In indictments or informations for any felony or misdemeanor com- 
 mitted in, upon, or with respect to any workhouse or poor-house, or 
 on or with respect to any goods or chattels whatsoever, provided for 
 the use of the poor of any parish or parishes, township or townships, 
 hamlet or hamlets, place or places, or to be used in any workhouse or 
 poor-house in or belonging to the same, or by the master or mistress 
 of such workhouse or poor-house, or by any workmen or servants 
 employed therein, the property may be described as belonging to the 
 overseers of the poor for the time being of such parish, etc., without 
 specifying their names. 7 G. 4, c. 64, s. 16. See bb G. 3, c. 137, s. 1 : 
 R. V. Went, R. & R. 359. And by 5 <fe 6 TT. 4, c. 69, s. 7, the guar- 
 dians of the poor of every union formed by virtue of the i <& b W. i, 
 c. 76, and of every parish placed under the control of a board of 
 guardians by virtue of that act, are made a corporation, by the name 
 
 of the "Guardians of the poor of the union, (or of the parish 
 
 of ,) in the county of ;" and as such corporation are em- 
 powered to accept, take, and hold for the benefit of the union or 
 parish any buildings, lands, or hereditaments, goods, efiects, or other 
 property ; and by that name to bring actions, to prefer indictments, 
 etc.; and in every such action or indictment relating to any such 
 property, it shall be sufficient to lay or state the property to be that 
 
 of the guardians of the union, or of the parish of . See 5 
 
 <& 6 Vict c. 57, s. 16. 
 
 If any felony or misdemeanor be committed on or with respect to 
 any materials, tools, or implements provided for making, altering, or 
 repairing any highway, within any parish, etc., otherwise than by the 
 trustees or commissioners of any turnpike road, the property may be 
 described as belonging to the surveyor or surveyors of the highway or 
 highways for the time being, without specifying their names. 7 G. 
 4, c. 64, s. 16. So if any felony or misdemeanor be committed on or 
 with respect to any house, building, gate, machine, lamp, board, stone, 
 post, fence, or other thing, erected or provided in pursuance of any 
 act of parliament for making any turnpike road, or any of the con- 
 veniences, or appurtenances thereunto respectively belonging, or any 
 materials, tools, or implements provided for making, altering, or re- 
 pairing any such road, the property may be described as belonging 
 
Indictment. 45 
 
 to the trustees or commissioners of the road, without specifying their 
 names. 7 G. 4, c. 64, «. 17. 
 
 In indictments or informations for any felony or misdemeanor 
 committed on or with respect to any sewer, or other matter within or 
 under the view, cognizance, or management of any commissioners of 
 sewers, it will be sufficient to state any such property to belong to 
 the commissioners of sewers, within or under whose view, cognizance, 
 or management, any such things may be ; and the names of the com- 
 missioners need not be specified. 7 G. 4. c. 64, s. 18. 
 
 Moneys, chattels, or valuable securities stolen or embezzled by 
 persons in the public service, or by constables or other persons em- 
 ployed in the police of any county, city, borough, district, or place 
 whatsoevei-, may be described as the property of the Queen. 24 S 
 25 Vict. c. 96, ss. 69, 70. 
 
 Goods stolen in the house of a person who had been convicted of 
 felony, and is undergoing his sentence, may be described as the pro- 
 perty of the Queen, although there has been no office found ; but the 
 house cannot be so described without office found. R. v. Whitehead, 
 9C.<&P. 429 ; 2 Mood. C. C. 181. 
 
 The moneys, goods, chattels, securities for money, and all other 
 effects whatever, belonging to any friendly society, must be described 
 to be the property of the trustees of the society for the time being. 
 18 (& 19 Vict. c. 63, s. 18 : (from which it follows that the trustees 
 cannot be guilty of larceny in stealing the property of the society. 
 B. V. Loose, 1 Bell, C. C. 259, unless, indeed, besides being trustees, 
 they are also part beneficial owners thereof, 31 d: 32 Vict. c. 116, 
 s. 1). The property in money, &c. belonging to industrial and pro- 
 vident societies registered under 25 <fc 26 Viet. c. 87, or 30 <& 31 
 Vict. c. 117, should be laid in the society by its corporate name. 
 See sect. 4 of the last-mentioned statute. In the case both of friendly 
 societies and industrial and provident societies, the property may 
 also be laid in the person in whose possession the money, &c. was 
 at the time it was stolen, and who was accountable to the society for 
 it. See ante, p. 41. 
 
 In indictments for stealing, pawning, selling, buying, exchanging, 
 receiving, embezzling, secreting, or not accounting for clothes, linen, 
 or other goods, belonging to the hospital at Chelsea, or the commis- 
 sioners thereof, the property may be laid to be in " The Lords and 
 others. Commissioners of the royal hospital for soldiers at Chelsea, 
 in the county of Middlesex ;" and in all prosecutions upon the stat. 
 7 G. 4, c. 16, it will be sufficient to charge the act as done with in- 
 tent to defraud " the Lords and others. Commissioners of the royal 
 hospital for soldiers at Chelsea, in the county of Middlesex." 7 G. 4, 
 c. 16, s. 31. 
 
 In indictments for stealing post letters, etc., etc., the property may 
 be laid in the Postmaster-General ; 7 W. i <& 1 Vict. c. 36, s. 40 ; 
 and in indictments for offences committed in respect, of telegraphic 
 messages sent by or entrusted to the Postmaster-General, the pro- 
 perty of such telegraphic messages may be laid in him. 31 tfc 32 
 Vict. c. 110, s. 21 ; 32 <6 33 Vict. c. 73, s. 23. 
 
 In indictments for stealing or embezzling property vested in the 
 trustee of a banknipt, by virtue of his appointment, such trustee may 
 be designated as "the trustee of the property of A. B., a bankrupt," 
 without inserting the. proper name of the trustee. 32 & 33 Vict. c. 
 71, s. 83, par. 7. See also 14 d 15 Vict. c. 100, s. 'i.i,post,p. 47. 
 
 Property vested in a body of persons must not be laid as the pro- 
 
46 Indictment. 
 
 perty of that body, unless it be incorporated, but must be described 
 as the property of the individuals who constitute that body, or some 
 of them, as in the case of partners, trustees, or joint-stock companies. 
 R. V. Sherrington, 1 Leach, 613: R. v. Beacall, 1 Mood. C. C. 15. But 
 when goods of a corporation are stolen, they must be laid to be the 
 property of the corporation, in their corporate name, and not in the 
 names of the individuals who comprise it; R. v. Patrick, 3 East, 
 P. C. 1059 ; 1 Leach, 253 ; and there is a difference in this respect 
 between an ancient corporation and a corporation newly created j an 
 ancient corporation may by use have a special name, differing in sub- 
 stance from that by which they were originally incorporated, and 
 they may plead and be impleaded by that name ; but a corporation 
 created within memory must plead and be impleaded by the name 
 by which they were incorporated. Hob. 211 ; Noy, 54; 2 Browrd. 
 292 ; Latch. 229 ; 11 Co. 24 ; Dy. 279 ; 3 Mod. 6 ; Oro. Elix. 351 ; 
 Bac. Abr., Corp. (C. 3). And see 10 Co. 87 ; 1 Leach, 513. Most 
 of the trading companies, familiarly known as joint stock companies, 
 are now incorporated under " The Companies Act, 1862," 25 <& 26 
 Vict. c. 89 ; see sect. 18 of that statute. Where on an indictment 
 against the prisoner as servant to A. and others, for embezzlement, 
 pi"Oof was given that the prisoner was servant to a trading company, 
 calling itself " The R. Coal Company, Limited ;" that this name was 
 over the office door of the company ; that there were eighty share- 
 holders, of whom A. was one ; that its affairs were managed by 
 directors ; that its shares were transferable by certificate without the 
 consent of the other shareholders ; and that a minute book of reso- 
 lutions was kept, but no certificate of incorporation was put in evi- 
 dence, — it was held that there was no evidence that the company 
 was incorporated, and that on the evidence the prisoner was properly 
 alleged in the indictment to be the servant of A. and others. R. 
 V. Frankkmd, L. & C. 276 ; 32 L. J. {M. C.) 69. 
 
 If the name of the party injured be unknown to the prosecutor, as 
 in the case of the murder of a stranger, or larceny from the person 
 of a stranger who does not come forward to prosecute, or the like, 
 he may be described in the indictment as a person unknown ; 2 
 Hale, 181 ; thus, a man may be indicted for the murder of, or for 
 stealing the goods of, " a certain person to the jurors aforesaid un- 
 known.'" 
 
 If at the trial it appear in evidence that the party injured is mis- 
 named, or that the owner of the goods or house, etc. is another and 
 different person from him named as such in the indictment, the vari- 
 ance (unless amended) is fatal, and the defendant must be acquitted. 
 2 East, P. C. 651, 781. But if the name proved be idem sonans with 
 that stated in the indictment, and different in spelling only, the vari- 
 ance will be immaterial. Thus, Segrave for Seagrave, Williams v. 
 Ogle, 2 Str. 889 ; Bendetto for Beniditto, Ahitbol v. Beniditto, 2 
 Taunt. 401 ; Whyneard for Winyard, pronounced Winnyard, R. v. 
 Foster, R. & R. 412 ; M'Nicole for M'NicoU, R. v. Wilson, 1 Den. 
 C..C. 284, is no variance. But it has been decided that M'Cann and 
 M'Carn, R. v. Tannett, R. & R. 351 ; Shakespeare and Shakepear, 
 R. V. Shakespeare, 10 East, 83; Tabart and Tarbart, Bingham v. 
 Dickie, 5 Tavmt. 814 ; Shutliff and Shirtliff, 1 Chit. C. L. 216 ; 3 Chit. 
 Bum, 341, are not the same in sound. The question whether the 
 names are idem sonamtia is a question of fact for the jury to deter- 
 mine. R. v.Davis,2 Den. C. C. 231. If the defendant be described 
 as a certain person to the jurors unknown, and it appear in evidence 
 
IruMctment. 47 
 
 that his name is known, it is a variance. See JR. v. Walker, 3 Camp. 
 264 : R. V. Mobinson, 1 ffoU, 695. In an indictment for receiving 
 stolen goods, if the principal felon be unknown, he may be described 
 as a certain person to the jurors aforesaid unknown ; R. v. Thomas, 
 2 East, P. C. 781 ; if, however, it appear in evidence that the prin- 
 cipal felon is known, it is a variance ; R. v. Walker, 3 Camp. 264 : 
 but the receiver will not be entitled to his acquittal merely because 
 the same grand jury have found a bill imputing the principal offence 
 to J. S. R. V. Bush, R. & R. 372. 
 
 If the party injured be designated by a name of office or other 
 descriptive appellation instead of his real name, it cannot be objected 
 to by writ of error or motion in arrest of judgment ; for no judgment 
 upon any indictment or information for any felony or misdemeanor, 
 whether after verdict or outlawry, or by confession, default or other- 
 wise, shall be stayed or reversed, for that any person or persons 
 mentioned in the indictment or information is or are designated by a 
 name of office, or other descriptive appellation, instead of his or their 
 proper names. 7 G. 4, c. 64, s. 20. And now, no indictment for 
 any offence shall be held insufficient, for that any person mentioned in 
 the indictment is designated by a name of office, or other descriptive 
 appellation, instead of his proper name : 14 c6 15 Vict. c. 100, s. 24. 
 And although there should appear upon the trial to be a variance be- 
 tween the indictment and the evidence, in the name or description of 
 any person or body politic or corporate therein alleged to be the owner 
 or owners of any property, real or personal, which shall form the sub- 
 ject of any offence charged therein, or in the name or description of 
 any person, or body politic or corporate, therein alleged to be injured 
 or damaged or intended to be injured or damaged by the commission 
 of such offence, or in the christian name or surname, or both christian 
 name and surname, or other description whatsoever of any person or 
 persons whomsoever, therein named or described, the court may order 
 the indictment to be amended, if it consider the variance not material 
 to the merits of the case, and that the defendant cannot be thereby 
 prejudiced in his defence on the merits. Id. s. 1. 
 
 Where it is essential to constitute the offence that the party injured 
 should have been of a certain age (as in an indictment upon the 24 tfc 
 25 Vict. c. 100, s. 61, for carnally knowing a girl above ten and under 
 twelve years of age), the party must be stated in every count of the 
 indictment to be of that age ; and it will not be sufficient to state the 
 age in the first count only, and in a subsequent count merely to de- 
 scribe the party as " the said A. B." R. v. Martin, 9 C. (d P. 215. 
 See R. V. Sarah Waters, 1 Den. C. C. 3S6. 
 
 Certainly as to time and pktce.'\ — Formerly time and place must 
 have been added to every material fact in an indictment ; Staund. 
 95 a : R. V. Holland, 5 T. R. 607 : R. v. Aylett, 1 T. R. 69 : R. v. 
 Haynes, A M. db Sel. 214 ; that is, every material fact stated in an 
 indictment must have been alleged to have been done on a particular 
 day, and at a particular place. As to what were considered to be 
 material facts within this rule, it is necessary to observe that every 
 offence consists of the commission or omission of certain acts under 
 certain circumstances ; and each of these, being a necessary ingredient 
 in the offence, is material, and must be stated in the indictment. An 
 offence of omission, or a mere nonfeasance, cannot indeed strictly be 
 said to have been committed at any time or place ; and therefore, in 
 an indictment for such an offence, the allegation of time and place has 
 
48 ■ Indictment. 
 
 always been held to be, in general, unnecessary ; Com. Dig. Indict- 
 ment, (G. 2) ; 2 Hawk. c. 25, s. 79 ; yet if it be an indictable offence 
 to omit doing an act at a particular time or at a particular place, an 
 indictment for it should undoubtedly have shown that it was not done 
 at that time or at that place. But in an indictment for offences of 
 commission, every act which is a necessary ingredient in the offence 
 must have been laid with time and place, as above mentioned. Thus, 
 where, in an indictment for murder, it was stated that J. S., at such 
 a time and place, having a sword in his right hand, did strike J. N., 
 etc., it was held insufficient ; for the time and place laid related to 
 the having of the sword, and consequently it was not said when or 
 where the stroke was given. 2 Sale, 178 : H. v. Cotton, Oro. El. 738. 
 So, that J. S., at such a time and place, made an assault upon J. N:,\ 
 et eum cum gladio felonice percussit, was holden bad, because it was 
 not said, et time et ibidem pereussit. Dy. 68, 69. Yet an indictment , 
 for a battery where time and place were laid to the assault, but not 
 to the battery, has been holden good ; 2 Hale, 178 ; and this dis- 
 tinction seems to have been established, that in felonies, in favorem 
 vitcB, the greatest strictness above mentioned (namely, that time and 
 place be laid to eveiy material fact) was required ; but in indict- 
 ments for misdemeanors, if time and place were added to the iirst 
 act, it should be construed equally to refer to all the ensuing acts. 
 See R. V. Bank, Oro. Jac. 41. However, in practice, time and place 
 were, until the passing of the stat. 14 c6 15 Vict. c. 100, added to 
 every material fact, as well in indictments for misdemeanors as in 
 indictments for felony. What we have now said relates to acts which 
 are necessary ingredients in the offence ; for mere circumstances 
 accompanying these acts never need have been laid with time and 
 place, March, pi. 127 ; R. v. Johnson, 2 Roll. Rep. 226, unless ren- 
 dered essential by the particular nature of the offence. Thus, in an 
 indictment for bigamy, in averring that the first wife was alive at the 
 time of the second marriage, it was not necessaiy to allege a place 
 where ; Stark. Cr. PI. 62 ; although, from the nature of the offence, 
 the time must necessarily be stated. And now, by the 24th section 
 of the statute just mentioned, 14 c6 15 Vict. c. 100, no indictment for 
 any offence shall be holden insufficient, " for omitting to state the 
 time at which the offence was committed, in any case where time is 
 not of the essence of the offence, nor for stating the time imperfectly, 
 nor for stating the offence to have been committed on a day subse- 
 quent to the finding of the indictment, or on an impossible day, or 
 on a day that never happened." The like defects were cured, after 
 verdict, by a previous statute. 7 G. 4, c. 64, s. 21. 
 
 The time, if laid, should be the day of the month and year upon 
 which the act is supposed to have been committed. A day certain 
 should be stated ; 2 Hawk. c. 25, s. 77 ; and this, at present, is always 
 the day of the month, although naming it as a feast day, or " the 
 Octave of the Holy Trinity," or the like, seems to be sufficient. Com. 
 Dig. Indictment (ff. 2). The year should also be stated ; and the 
 year of the Queen's reign has been usually inserted ; but the year of 
 our Lord is unobjectionable, and is more simple. Alleging the act 
 to have been committed on such a day last past would be sufficient, 
 because it would be rendered certain by the caption of the indictment. 
 In no case is it necessary to state the hour at which the act was done, 
 unless rendered essential by the statute upon which the indictment is 
 framed. 2 Hawk. c. 25, s. 76. And see Comhe y. Pitt, S Burr. liSi : 
 R. V. Clarke, 1 Bulst. 204 ; March, pi. 127 ; 2 Inst. 318. In burglary, 
 
Indictment. 49 
 
 indeed, it is usual to state it ; but alleging the offence to have been 
 committed " in the night" without mentioning the hour, seems to be 
 sufficient ; hat see 1 Hale, 549 : R. v. Waddington, 2 East, P. C. 613 ; 
 2 Hawk. c. 25, ss. 76, 77. In an indictment upon stat. 9 O. 4, c. 69, 
 for unlawfully entering or being in a close by night for the purpose 
 of taking game, armed, it is not necessary to state the hour ot the 
 night. R. V. Davis, 10 B. & C. 89. 
 
 The place (or special venue, as it is technically termed) must be such 
 as in strictness the jury who are to try the cause should come from. 
 At common law, the jury, in strictness, should have come from the 
 town, hamlet or parish, or from the manor, castle or forest, or other 
 known place out of a town, where the offence was committed ; and 
 /^oi^this reason, besides the county, or the city, borough or other part 
 I of the county to which the jurisdiction of the court is limited, it was 
 formerly necessary to allege that every material act mentioned in the 
 indictment was committed in such a place ; and where a city or town 
 contained two or more parishes, or a parish two or more towns, the 
 parish or town in which the offence was committed must have been 
 stated. See 2 Hawh. c. 23, s. 92 : R. v. Machally, 5 Co. 66 h ; Sid. 
 325. For the same reason it was usual in London, to name both the 
 ward as well as the parish, thus : " in the parish of St. Mary-le-how, 
 in the ward of Cheap ; " but this was not requisite, nor was it neces- 
 sary in other cases to mention the hundred in which the parish was 
 situate. This rule was not altered by the repealed statutes 4 (fc 5 Ann. 
 c. 16, and 24 G. 3, c. 18, which extended to civil cases only ; but now 
 the jury in criminal cases are returned from the body of the county 
 and not as formerly from any particular visne; 6 G. 4, c. 50, s. 13 ; 
 and, since that statute, it was sufficient to state only the county, or 
 the city, borough or other part of the county to wliich the jurisdictioTi 
 of the court is limited, in all cases which are not of a local nature. See 
 R. V. Lawrence, 3 Cowp. 78 : R. v. Leadbeater, 3 Bum's J., by Chitty, 
 332 ; R. V. Bowling, Ry. & M. 433 ; 2 Camp. 77. The county, etc., 
 so stated must have been the same as that stated as venue in the margin 
 of the indictment. See 2 Hale, 180. But now, by stat. 14<fe 15 Vict, 
 c. 100, s. 23, " it shall not be necessary to state any venue in the body 
 of any indictment, but the county, city, or other jurisdiction named 
 in the margin thereof shall be taken to be the venue for all the facts 
 stated in the body of such indictment : provided, that in cases where 
 local description is or hereafter shall be required, such local description 
 shall be given in the body of the indictment ; and provided also, that 
 where an indictment for an offence committed in the county of any 
 city or town corporate shall be preferred at the assizes of the adjoining 
 county, such county of the city or town shall be deemed the venue, 
 and may either be stated in the margin of the indictment, with or 
 without the name of the county in which the offender is to be tried, 
 or be stated in the body of the indictment by way of venue." By 
 s. 30 of the same statute, " in the construction of this act the word 
 ' indictment' shall be understood to include • information,' ' inqui- 
 sition,' and ' presentment,' as well as indictment, and also any ' plea,' 
 ' replication,' or other pleading, and any Nisi Privs record ; and the 
 terms ' finding of the indictment' shall be understood to include ' the 
 taking of an inquisition,' ' the exhibiting of an information,' and ' the 
 making a presentment ;' and wherever in this act, in describing or 
 referring to any person or party, matter or thing, any word importing 
 the singular number or masculine gender is used, the same shall bfe 
 understood to include and shall be applied to several persons and 
 
69 Indictment. 
 
 parties as -well as one person or party, and females as well as males, 
 and bodies corporate as well as individuals, and several matters and 
 things as well as one matter or thing ; and the word ' property' shall 
 be understood to include goods, chattels, money, valuable securities, 
 and every other matter or thing, whether real or personal, upon or 
 with respect to which any offence may be committed." The cases in 
 which local description is required, and in which, therefore, under 
 the proviso to s. 23 of 14 dk 16 Vict. c. 100 (ante, p. 49), it is 
 still necessary to insert such description in the body of the indict- 
 ment, are burglary, 2 Euss. C. & M. by Greaves, 47 (4th edit.) ; Ji. v. 
 St. John, 9 C cfe P. 40 ; housebreaking, M. v. Bullock, cited in 1 
 J^po. C. C. 324 ; stealing in a dwelling-house, R. v. Napper, 1 Moo. 
 Q. C. 44 ; being found by night armed with intent to break into a 
 dwelling-house, &c., and to commit a felony therein, R. v.Jarrald, L. S 
 Q. 301 ,; 32 L. J. {M. C.) 258 ; sacrilege. Arch. Or. PI. 237 ; riotously 
 demolishing chm-ches, houses, machinery, &c., jB. v. Richards, 1 M.a: 
 Bob. 177; maliciously firing a dwelling-house, perhaps an out-house, 
 but not a stack, R. v. Woodward, 1 Moo. C. C. 323 ; forcible entry, 2 
 Leon. 186 ; poaching, R. v. RidUy, R. <& R. 515 ; nuisances to high- 
 ways, R. V. Steoenton, 1 C. <& K. 55 ; malicious injuries to sea banks, 
 mill dams, or other local property, 1 Tayl. Ev. 259 (4th edit.). In- 
 dictments for offences within the admiral's jurisdiction (ante, p. 30, 
 pi, 17), should allege each act to have been done " on the high seas,-" 
 it is unnecessary now to add ^'within the jurisdiction of th^ Admiralty 
 of , England;" sometimes the place on laud near which the offence 
 was committed is also stated ; but this is not necessary. 
 
 Although time and place must thus, before the statute just men- 
 tipned, have been laid with certainty, it never was necessary that it 
 should be laid according to the truth ; for if the time stated were pre- 
 vious to the finding of the indictment, and the place within the county 
 or other extent of the court's jurisdiction, a variance between the in- 
 dictment and evidence in the time when the offence was committed, 
 S^lynge, 16 ; 2 Inst. 318 ; 3 Inst. 230; R. v. Aylett, 1 T. R. 70, 71, or 
 iij the place where committed, provided the place proved were within 
 the jurisdiction of the court, 2 Hawk. c. 26, s. 84, was not material ; 
 and for this reason, in practice all the facts in an indictment usually 
 wpre (and still maybe) stated to have occurred at the same time and 
 place, time and special venue being laid as to the first fact, and after- 
 wards referred to by the words " then cmd there," as to the others. 
 There are some exceptions, however, to this rule : — 1. The dates of bills 
 of exchange, and other written instruments, must be tnily stated when 
 npcessarily set out. 2. Deeds must be pleaded either according to 
 the date they bear, or to the day on which they were delivered. 3. If 
 anytime stated in the indictment is to be proved by matter of record, 
 it must be truly stated. 4. If the precise date of a fact be a necessary 
 ingredient in the offence, it must bertruly stated. See R. v. Treheame, 
 IMood. C. C. 298. 5. If the statute upon which the indictment is 
 framed give the penalty to the poor of the parish in which the offence 
 was committed, the parish must be truly stated. 6. Where a place 
 named is part of the description of a written instrument, or is to be 
 pr<)yed by matter of record, it must be truly stated. 7. If the place 
 wi(ere the fact occurred be a necessary ingredient in the offence, it 
 ini)st be truly stated : and any variance in these several respects, 
 between the indictment and evidence, will be fatal, and the defendant 
 m^st (b^ acquitted, unless the variance be amended at the tiial. 9 
 Gr,4^, ,0. 15 ; 11 d 12 Vict. c. 46, «. 4 ; 12 £& 13 Viet.c 45, s. 10 ;, 
 
Indictment. 51 
 
 14 & 15 Vict. c. 100, ss. 1, 24. (See post, " Evidence.") And lastly, 
 where a time is limited for preferring an indictmemt, the time laid 
 should appear to be within the time so limited. See R. v. Brown, 
 M. (& M. 163. 
 
 Where a place is stated as matter of loeal description, any variance 
 between the description of it in the indictment and the evidence 
 would, unless amended, be fatal. Thus, for instance, in indictments 
 for stealing in the dwelling-house, etc., for burglary, for arson, for 
 entering or being in land by night for the purpose of taking game, 
 armed, R. v. Ridley:, R. £ R. 616, or for forcible entry, or the like, 
 if there be any variance between the indictment and evidence in the 
 name of the parish or place where the house is situate, or in any other 
 description given of it, it will be fatal, unless amended. 
 
 Certain^ as to the facts, circumstances, and intent constituting the 
 offence. — Every offence consists of certain acts done or omitted 
 under certain circumstances ; and in an indietment for the offence, it 
 is not sufficient to charge the defendant generally with having com- 
 mitted it, as, that he stole the goods of J., or committed burglary 
 in the house of J. S., or the like ; but all the facts and circumstances 
 constituting the offence must be specially set forth. This rule formerly 
 also applied to indictments for murder and manslaughter ; but it is 
 not now necessary in such indictments to set forth the manner in 
 which or the means by which the death of the deceased was caused. 
 24 c6 26 Vict. c. 100, s. 6. So, the offence must appear upon the face 
 of the indictment to be a distinct substantive offence : you cannot 
 charge a man with being a common thief, a common champertor or 
 conspirator, common malefactor, or common robber ; but if he have 
 committed a larceny, robbery, etc., the indietment must set forth 
 every fact and circumstance which is a necessary ingredient in the 
 offence. Thus, an indictment for extortion, charging that the de- 
 fendant took extorsively for every horse so much, and for every 
 twenty sheep so much, was holden bad r because it charged the de- 
 fendant with extortion generally, and not upon any particular occa- 
 sion. R. V. Roberts, 1 Mod. 103. So, that the defendant was a 
 calumniator, and a common and turbulent breaker of the peace, etc., 
 was holden bad for the same reason. R. v. Taylor, 2 Sir. S43, 1246; 
 2 Sale, 182. And the same where a constable was indicted for be- 
 having badly and negligently in the execution of his office, without 
 specifying any particular instance of negligence, etc. R. v. Wither- 
 ington, 1 Str. 2. The only exceptions to this rule are, — 1. That a 
 man may be indicted for being "a common barretor," without detail- 
 ing the particulars of the barratry. 2. That a woman may be indicted 
 for being " a common scold," without detailing the particulars of her 
 conduct. 3. That a person may be indicted for keeping a common 
 gambliiig-house or bawdy-house, without stating those circumstances 
 which it may be necessary to give in evidence to show that it is a 
 house of that description. See 2 Hawh. c. 25, as. 67, 69. 4. That in 
 an indictment for soliciting or inciting to the commission of a crime, 
 R. y. Hiffgins, 2 East, 6, or for aiding and assisting in the commission 
 of it, it is not necessary to state the particulars of the incitement or 
 solicitation, or of the aid or assistance. And so in an indictment 
 framed upon 37 O. 3, c. 70, which enacts that any person who 
 shall maliciously and advisedly endeavour to seduce any person serv^ 
 ing in his Majesty's foi-ces from his duty and allegiance, shall be 
 guilty of felony, it is unnecessary to state the means by which the' 
 
 d2 
 
52 Indictment. 
 
 prisoner had endeavoured to seduce the soldier from his duty and 
 allegiance. R. v. Fuller, Leach, 916 ; 1 Bos. & P. 180. With re- 
 spect to the description of the solicitation or endemiowr it seems that 
 general words are sufficient, because the endeavour, attempt or solici- 
 tation is in general made up of a number of petty circumstances, 
 which cannot be set out on the record. 1 Stark. Or. PI. 146, 'ind ed. 
 5. In any indictment or information for bribery or undue influence at 
 a parliamentary election, it is sufficient to allege that the defendant 
 was, at the election at or in connexion with which the offence is 
 intended to be alleged to have been committed, guilty of bribery or 
 undue influence (as the case may require). 26 Vict. c. 29, s. 6. 6. 
 In an indictment for an offence, under 32 S 33 Vict. c. 62 (The 
 Debtors Act, 1869), it is sufficient to set forth the substance of the 
 offence cliarged in the words of that act, specifying the offence, or as 
 near thereto as circumstances admit without alleging or setting forth 
 any debt, act of bankruptcy, trading, adjudication, or any proceedings 
 in, or order, warrant, or document of any court acting under The Bank- 
 ruptcy Act, 1869, 32 (& 33 Vict. c. 62, s. 19. In all other cases, 
 every fact or circumstance which is a necessary ingredient in the 
 offence must be set forth in the indictment. 
 
 And if any fact or circumstance which is a necessary ingredient of 
 the offence be omitted in the indictment, such omission vitiates the 
 indictment, and the defendant may avail himself of it by demurrer, 
 motion in arrest of judgment, or writ of error. Thus, in an indict- 
 ment for assaulting an officer in the execution of process, without 
 showing that he was an officer of the court out of which the process 
 issued ; R. v. Osmer, 6 East, 304 ; see R. v. Everett, 9 B. & C. 114 ; 
 for contemptuous or disrespectful words to a magistrate, without 
 showing that the magistrate was in the execution of his duty at the 
 time ; R. v. Lease, Andr. 216 ; against a public officer for non-per- 
 formance of a duty, without showing that he was such an officer as 
 was bound by law to perform that particular duty ; b T. R. 623 ; for 
 obtaining money under false pretences, without showing whose money 
 it was; R. v. Norton, 8 C.-<Sk P. 196 ; R. v. Martin, 8 A. (& E. 481 ; 
 (but see now 24 & 25 Vict. c. 96, s. 88, which renders it unnecessary 
 in an indictment for false pretences to allege any ownership of the 
 money, etc. obtained) ; that he feloniously did lead away a horse, etc., 
 without saying " take:" 2 Hale, 184 : in all these and the like cases 
 the indictment is bad, and the defect may be taken advantage of in 
 the manner above mentioned. See R. v. Clieere, 1 D. & R. 461 ; 4 B. 
 & C. 902 ; \ B.& Ad. 861 ; 8 A. d E. 481. In an indictment for 
 neglecting to provide sufficient sustenance for a child of tender 
 years, the omission to state expressly that the prisoner had the 
 ability to provide does not hurt if the" indictment avers that it was 
 the duty of the prisoner to provide, and that he unlawfully neglected 
 to provide, the ability to provide being implied, and therefore suffi- 
 ciently averred, by the word neglect. R. v. Ryland, L. R., 1 C. C. R. 
 99 ; 37 L. J. {M. C.) 10. 
 
 Every fact and circumstance laid in an indictment, which is not a 
 necessary ingredient in the offence, may be rejected as surplusage, 
 and need not be proved at the trial ; see 7 G. 4, c. 64, «. 20 ; R. v. 
 Jones, 2 B. (& Ad. 611 ; also, if there be any defect in the manner of 
 stating such matter, the defect will not vitiate the indictment. R. v. 
 Walher, 3 Co. 41 a : R. v. Long, 6 Co. 121 b: R. v. Salt, 2 Leach, 693^ 
 And see R. v. Howarth, 8 Stark. 29. The allegation usually inserted 
 in an indictment for perjury, " that so the defendant did commit 
 
Indictment. 53 
 
 wilful and corrupt perjury," may be rejected as surplusage. Ryalh 
 V. R., 11 g. B. 781: R. v. HodgUss, L. R., 1 C. C. R. 212; 39 L. J. 
 (M. C.) 14 ; and upon an indictment containing these words, charging 
 the defendant with taking a false oath in a non-judicial proceeding, 
 (which is not perjury, but a common law misdemeanor,) he may be 
 convicted of such misdemeanor. R. v. Hodgldss, uhi supra. And 
 by 14 & 15 Vict. c. 100, s. 24, it is expressly enacted, that no indict- 
 ment shall be deemed insufficient for want of the averment of any 
 matter unnecessary to be proved. 
 
 Not only must all the facts and circumstances which constitute the 
 offence be stated, but they must be stated with such certainty and 
 precision, that the defendant may be enabled to judge whether they 
 constitute an indictable offence or not, in order that he may demur or 
 plead to the indictment accordingly — that he may be enabled to de- 
 termine the species of offence they constitute, in order that he may 
 prepare his defence accordingly — that he may be enabled to plead a 
 conviction or acquittal upon this indictment, in bar of another prose- 
 cution for the same offence — and that there may be no doubt as to 
 the judgment which should be given, if the defendant be convicted. 
 See R. v. Eome, Comp. 675 : R. v. Rawed, 3 Q. B. 180 ; 2 (?. <£• D. 518. 
 Therefore, in indictments for offences of a local nature, as burglary, 
 arson, and stealing in the dwelling-house, etc., a local description of 
 the house, etc. must be given, namely, the parish or place, and 
 county in which it is situate : in indictments for obtaining money by 
 false pretences, the false pretences must be specified : R. v. Mason, 
 2 T. ^.581 : R. v. Manon, 2 Str. 1127 : in an indictment against a 
 person for not serving the office of constable, the mode of election 
 must be' set out, to show that lie was legally elected ; for if he were 
 not legally elected, he cannot be guilty of a crime in not serving : 
 R. V. Harpwr, 6 Mod. 96 ; an indictment for extortion must show 
 what fee was due, or that nothing was payable, R. v. Lake, 3 Leon. 
 268, as well as the fee exacted: an indictment for stopping up the 
 King's highway must specify what part. R. v. Roberts, Show. 289. 
 Also, for the same reasons, if the indictment charge the defendant 
 with one or other of two offences, in the disjunctive, as that he mur- 
 dered, or caused to be murdered, forged or caused to he forged, 
 2 Eawk c. 25, s. 68 : R. v. Stacker, 1 Salk. 342, 371, levavit vel 
 levari causavit, R. v. Strmghton, 2 Str. 900, conveyed or caused to be 
 conveyed, etc., R. v. Flint, Hardw. 370 ; see R. v. Morhy, 1 Y. & J. 
 22, it is bad for uncertainty : and the same if it ciiarge him in two 
 different characters, in the disjunctive, as, quod A., existenn servus 
 sive deputatus, took, etc. Smith v. Mall, 2 Roll. Rep. 263. So, an in- 
 dictment which may apply to either of two different definite offences, 
 and does not specify which, is bad. R. v. Marshall, 1 Mood. C. C. 
 158.AAnd the uncertainty of one count of an indictment cannot be 
 aided ny reference to the description of the offence in another count, ' 
 R. V. Sarah Waters, 1 Den. C. C. 356. But, after verdict, defective 
 averments in a second count may be aided by reference to sufficient 
 averments in the first count. R. v. Waverton, 2 Den. C. C. 341 ; 17 
 Q. B. 562. 
 
 Certainty to a certain intent in general, however, is all that is 
 required. Co. Lit. 303 a; R.v. Long, 5 Co. 121 a. Certainty is of 
 three kinds : certainty to a certain intent in every particular, which 
 is required only in pleas, etc. of estoppel and pleas in abatement ; 
 certainty to a common intent, which is required in ordinary pleas ; 
 and certainty to a certain intent in general, which is required in de- 
 
54 Indictment. 
 
 clarations and indictments. The latter is a medium between the other 
 two ; not so great a degree of certainty as the first, and a greater 
 degree of certainty than the second. I shall endeavour further to 
 define them. Where certainty to. a certain intent in every particular 
 is required, the court will presume the negative of everything the 
 pleader has not expressly affirmed, and the affirmative of everything 
 the pleader has not expressly negatived; or, in the words of Lord Coke, 
 the pleader must exclude every conclusion against him. Where 
 certainty to a common intent only is required, the court will presume 
 in favour of the pleader every proposition wMch by reasonable intend- 
 ment is impliedly included in the pleading, though not expressed ; 
 and where words are made use of, which admit of a natural sense, and 
 also of an artificial one, or one to be made out by argument or infer- 
 ence, the natural sense shall prevail. Thus, if a plea state that the 
 master and fellows of a college were seised in fee, it shall be intended 
 in right of the college; Fulmerston v. Steward, Plowd. 102 ; if a man 
 plead a feoffinent, livery shall be intended, because it would not other- 
 wise be a feoffinent ; Co. Lit. 303 i; or, if he plead an assignment of 
 dower, it shall be intended by metes and bounds, for otherwise it 
 would not be a legal assignment. Bro. Pleader, 145; Cadwalader v. 
 Brian, Oro. Car. 162. Common intent, however, is a rule of construc- 
 tion only, and not of addition ; it cannot add to a sentence words 
 which are not impliedly included in it; and therefore, in trespass, if 
 the defendant plead a release, without showing at what time it was 
 made, the court cannot presume that it was made after the trespass, 
 Plowd. 46 a, unless the particular trespass be specially mentioned in 
 it. Certainty to a certain intent in general, being a medium between 
 the two degrees of certainty above mentioned, may be inferred firom 
 what has just now been said respecting them ; and it should seem, 
 therefore, that in cases where it is required, everything which the 
 pleader should have stated, and which is not either expressly alleged 
 or by necessary implication included in what is alleged, must be pre- 
 sumed against him. The court, however, will construe the words of 
 the pleading according to their ordinary and usual acceptation, and 
 technical terms according to their technical meaning. .And if the 
 sense of a word be ambiguous in the ordinaiy acceptation of it, it 
 shall be construed according as the context and subject-matter re- 
 quire it to be, in order to render the whole consistent and sensible : 
 thus, the word ^^ until" may be construed inclusive or exclusive of the 
 day to which it is applied according to the context and subject-mat- 
 ter. M. V. Stevens, 5 East, 244. In S. v. Bigg, 1 Str. 18 ; 3 P. Wms. 
 419, the defendant was indicted for erasing the endorsement of a bank 
 note, and it appeared that the words erased were on the face of the 
 note, but the jury found that such was commonly called an indorse- 
 ment; and a majority of the judges held that the description was 
 correct. An indictment will not be vitiated by ungrammatical 
 language, if the real meaning be sufficiently expressed. S. v. Stokes, 
 1 Den. C. C. 307; 2 C. S K. 536. In indictments against officers for 
 neglect of duty or malversation in their offices, it is sufficient to 
 allege that they were such officers at the time of the offence com- 
 mitted, without showing their appointment ; see R. v. Holland, 5 T. 
 R. 623 ; for their regular appointment is presumed from their exer- 
 cising the duties of their offices. If it be stated that the justices of 
 our lady the Queen were assigned by letters patent under " her seal 
 of Great Britain," it shall be presumed to be the great seal, R. v. 
 Yandell, 4 T. R. 521, for it could not be by any other. 
 
Indictment. 55 
 
 ifere matter of inducement does not require so much certainty as 
 the statement of the gist of the ofiFence. B. v. Wright, 1 Vent. 170; 
 Com. Dig. Indictment, (G. 5). Thus, in an indictment for disobe- 
 dience to an order of justices for payment of a church rate, made under 
 53 G. 3i c. 127, an averment, by way of inducement, that a rate was 
 duly made as by law required, and afterwards duly allowed, and that 
 the defendant was by it duly rated, was held sufficient, without set- 
 ting out the facts which constituted the alleged due rating, etc., 
 although in the statement of the offence itself it would not have been 
 sufficient. R. v. Bidwell, 1 Den. C. C. 222. See also R. v. Wade, I 
 B. <& Ad. 861: R. v. Soper, 3 B. <& C. 857: R. v. Sainsiury, 4 T. R. 
 451: R. Y. Westley, 1 Bell, C. C. 193. Where the offence cannot be 
 stated with complete certainty it is sufficient to state it with such 
 certainty as it is capable of. As in the case of a conspiracy to defraud 
 a person of goods, it is not necessary to describe the good's as in an 
 indictment for stealing them; stating them as "divers goods" has 
 
 been holden sufficient. R. v. , 1 Chit. Rep. 698. See also R. v. 
 
 Gill, 2B.& Aid. 204 : R. v. Kennch, 5 Q. A 49; 1 Dav. & M. 208. 
 So, in an indictment for soliciting and inciting another to commit 
 an offence, it is not necessary to state the offence contemplated with 
 the same degree of certainty as in an indictment for the offence itself, 
 even, it should seem, although the offence were afterwards actually 
 committed. In indictments for perjury and offences of the same 
 nature, also, the certainty formerly required according to the rules 
 above mentioned is now no longer necessary ; for by stat. 14 & 15 
 Vict. c. 100, .s. 20 (which re-enacts and extends similar provisions con- 
 tained in 23 G. 2, c. 11), it is necessary only to state the substance of 
 the offence, and by what court or before whom the oath, etc. was 
 taken, etc., without setting out the bill, answer, etc., or any part 
 of any proceeding in law or equity, and without setting out the 
 commission or authority of the court or person before whom the of- 
 fence was committed. If, however, the prosecutor choose to state the 
 offence with greater particularity than is required by this statute, 
 he will be bound by the statement, and must prove it as laid. R. v. 
 Dowlin, 5 T. R. 311, 317. And the same in every other case where 
 an offence is stated in an indictment with greater particularity than 
 is necessaiy, the unnecessary allegations, if descriptive of some ingre- 
 dient in the offence, and not merely of circumstances of aggravation, 
 are material and relevant, and cannot be rejected as surplusage. (See 
 post, Part II., Chap. I.) 
 
 Having made these general observations on the certainty required 
 in indictments, we shall now proceed to examine the subject with 
 relation to particular cases. 
 
 At the common law, written instruments, wherever they formed a 
 part of the gist of the offence charged, (see R. v. Coulson, 1 Den. C. C. 
 593,) must have been set out verbatim. Thus, in the case of forgery, 
 the instrument forged must, before the stat. 2 i& 3 W. i, c. 123, s. i, 
 have been set out in the indictment in words or figures; R. v. Mason'l 
 1 East, 180, B. ; 2 East, P. C. 975 : R. v. Powell, 1 Leach, 77: R. v. 
 Hart, Id. 145: R. v. Lyon, 2 Leach, 608; in an indictment for a libelj 
 the libellous matter must have been set out verbatim; see Zenobio v. 
 Axtell, 6 T. S. 162; for sending a threatening letter, the letter must 
 have been set out verbatim ; R. v. Lloyd, 2 East, P. C. 1122; and sei 
 R. V. Hmiter, 2 Leach, 631 ; for not executing a warrant, the nature 
 and tenor of the warrant must have been shown; R. v. Burrough, t 
 Vent. 305; Com. Dig. Indictment, (G. 3). To this general rule several 
 exceptions have existed, or have from time to time been made by 
 
56 Indietment 
 
 statute. Thus, in perjury, it is not necessaiy to set out the affidavit, 
 answer, etc., on which the perjury is assigned, verbatim, for the 
 Stat. 14 rf; 15 Vict. c. 100, s, 20, requires only the substance of the 
 offence to be charged. In larceny of written instruments, made 
 the subject of larceny by statute, (see 24 d 25 Vict. c. 96, s. 27,) 
 it has never been necessary that the indictment should set them out 
 verbatim : describing them in a general manner is sufficient ; 2 East, 
 P. C. 602, 777; thus, " one bank note for the payment of five pounds, 
 and of the value of five pounds ;" " one bill of exchange for the pay- 
 ment of fifty pounds, and of the value of fifty pounds ;" or the like; 
 for, where a specific thing is made the subject of larceny, it is neces- 
 sary merely to desci-ibe it as such specific thing, it being a species of 
 thing that is the subject of larceny. R. v. Johnson, & M. d; Sel. 539. 
 This rule applies to all instruments which are the subject of larceny; 
 but the indictment must follow some of the descriptions given in the 
 statute; for, where an indictment upon the repealed statute, 2 G. 2, 
 c. 25, s. 3, which applied to bank notes, bills of exchange and promis- 
 sory notes, etc., described the instrument stolen as " a certain note, 
 commonly called a bank note," it was holden insufficient. R. v. 
 Graven, R. d; R. 14. So, where the indictment described the instru- 
 ment stolen as " a bank post bill," it was holden bad, because it did 
 not fall within any of the descriptions in that statute. R. v. Chard, R. 
 ti R. 488. In an indictment for forging or uttering any instrument 
 or writing, it was by the 2 c§ 3 W. 4, c. 123, s. 3, (repealed by 24 & 
 25 Vict. c. 95, and fresh provisions substituted by 24 & 25 Vict. c. 98, 
 s. 42, infra,) made unnecessary to set forth any copy or fac-simile 
 thereof, but it was sufficient to describe the instrument in such manner 
 as would sustain an indictment for stealing the same. 2 ffe 3 W. 4, 
 c. 123, s. 3. See R. v. Warshaner, 1 Mood. C. C. 466; T C. & P. 429: 
 R. v. Burgiss, 1 C.& P. 490: R. v. James, Id. 553: R. v. Vaughan, 8 
 C. & P. 276: R. v. Sharpe, Id. 436: R. v. Rogers, 9 C.dP. 41. And 
 now, by recent statutes, the following important relaxations of the 
 rule, as to the certainty required in the statement of written instru- 
 ments, have been introduced. By 14 <& 15 Vict. c. 100, s. 5, " In any 
 indictment for forging, uttering, stealing, embezzling, destroying, or 
 concealing, or for obtaining by false pretences, any instrument, it 
 shall be sufficient to describe such instrument by any name or desig- 
 nation by which the same may be usually known, or by the pur- 
 port thereof, without setting out any copy or fac-simile thereof, 
 or otherwise describing the same or the value thereof" And by 
 s. 7, " In all other cases wherever it shall be necessary to make 
 any averment in any indictment as to any instrument, whether the 
 same consists wholly or in part of writing, print, or figures, it shall 
 be sufficient to describe such instrument by any name or designation 
 by which the same may be usually known, or by the purport thereof, 
 without setting out any copy or fac-simile of the whole or any part 
 thereof" As to the extended meaning to be given to the word " in- 
 <3ictraent" in the above two sections, see 14 tfc 15 Vict. c. 100, s. 30, ante, 
 p. 49. So much of s. 5 of 14 <fc 15 Vict. c. 100, as relates to forging 
 or uttering any instrument is repealed by 24 d 25 Vict. c. 95; but 24 
 d 25 Vict. c. 98, s. 42, enacts that in any indictment for forging, alter- 
 ing, ofiering, uttering, disposing, or putting off any instrument, it shall 
 be sufficient to describe such instrument by any name or designation 
 by which the same may be usually known, or by the purport thereof, 
 without setting out any copy or fac-simile thereof, or otherwise de- 
 scribing the same or the value thereof. By s. 43, in any indictment 
 for engraving or making the whole or any part of any instrument. 
 
Indictment. 57 
 
 matter or thing whatsoever, — or for using or having the unlawful 
 custody or possession of any plate or other material upon which the 
 whole or any part of any instrument, matter or thing whatsoever shall 
 have been engraved or made, — or for having the unlawful custody or 
 possession of any paper upon which the whole or any part of any in- 
 strument, matter or thing whatsoever shall have been made or printed, 
 — it shall be sufficient to describe such instrument, matter or thing 
 by any name or designation by which the same may be usually 
 known, without setting out any copy or fac-simile of the whole or 
 any part of such instrument, matter or thing. 
 
 Where the written instrument or parts of it are set out verbatim, 
 care must be taken to set them out correctly ; for any variance be- 
 tween the indictment and evidence in this respect will be fatal unless 
 amended during the trial. 
 
 If an indictment describe a written instrument as purporting to be 
 so and so, the instrument when produced in evidence must appear 
 upon the face of it to be what it is described as purporting to be, 
 otherwise the defendant may be acquitted for the variance, if not 
 amended. As, for instance, if the instrument be described as a 
 " certain paper writing purporting to be a bank note," and the note 
 produced, though made to resemble, vaiy materially in its form from 
 a real bank-note ; It. v. Jones, 1 Doug. 300 ; or, if desci-ibed as a bill 
 of exchange, "pui-porting to be directed to one J. King, by the name 
 and description of J. Ring;" for if it were really directed to J. Ring, 
 it could not purport (that is, appear upon the face of it) to be directed 
 to J. King. B. V. Beading, 1 East, 180, «.; 2 Leach, 690. See B. v. 
 Gilchrist, 2 Leach, 657: B. v. Edsall, Id. 662. 
 
 Where words are the gist of the offence, they must be set forth with 
 particularity in the indictment; as, for instance, in an indictment for 
 scandalous or contemptuous words spoken to a magistrate in the exe- 
 cution of his office; B. v. Bagg, 1 Boll. Bep. 79: R. v. How, 1 Str. 
 699; or, for blasphemous or seditious words. B. v. Popplewell, 1 Str. 
 686: jB. v. Sparling, Id. 498. And if there be any material variance 
 between the words proved and those laid, even if laid as spoken in 
 the third person, and proved to have been spoken in the second, B. 
 V. Berry, 4 T. B. 217, the defendant will be acquitted, unless the judge 
 think fit to amend the variance. But if some of the words be proved 
 as laid, and the words so proved amount to an indictable offence, it 
 will be sufficient. Where words are laid as an overt act of treason, 
 it is sufficient to set forth the substance of them; Fast. 194; B. v. 
 Layer, 8 Mod. 93; 6 St. Tr. 328; for they are not the gist of the of- 
 fence, but proofs or evidence of it merely. 
 
 Where any matter laid in an indictment is to be proved by a record, 
 great care must be taken that the statement correspond exactly with 
 the record. This subject, and that of variances between written and 
 printed instruments, and the statement or setting forth thereof upon 
 the trial, will be considered more fully when we come to treat of the 
 evidence necessary to support an indictment. It may, however, 
 here be observed, that by the 6 c6 7 Vict. t. 85, s. 2, wherever, in 
 any legal proceedings whatever, legal proceedings may be set out, 
 it shall not be necessary to specify that any particular persons who 
 acted as jurors had made affirmation instead of oath, but it may be 
 stated that they served as jurymen in the same manner as if no act 
 had passed for enabling persons to serve as jurymen without oath. 
 
 Where personal chattels are the subject of an offence, as in larceny, 
 they must be described specifically by the names usually appropriated 
 
 d5 
 
58 Indictment. 
 
 to them, and the number and (where value is of the essence of the 
 offence, see post, p. 59) the value of each species or particular kind of 
 goods stated : see 2 BjiU, 182, 183 : thus, for instance, " one coat of 
 the value of twenty shillings, two pairs of hoots of the value of thirty 
 shillings, two sheets of the value of thirteen, shillings, of the goods amd 
 chattels of one J. S." or, " one sheep of the price of twenty shillings," 
 etc., and the like. If, for instance, it were " twenty wethers and ewes," 
 the indictment would be bad for uncertainty ; it should state how many 
 of each. 2 Hale, 183. Goods may be described by the name by which 
 they are known in trade ; as, for instance, a set of new handkerchiefs 
 in the piece may be described as so many handkerchiefs, though they 
 are not separated irom each other, if the pattern designate each, and 
 they are considered in trade as so many handkerchiefs. R. v. Nibbs, 
 B. & R. 25. Ingots of tin, or a bar of iron may be described as so 
 many pounds weight of tin or iron ; but where an article has ob- 
 tained, in common parlance, a particular name of its own, it would 
 be wrong to describe it by the name of the material of which it is 
 composed. R. v. Mansfield, C. <& Mar. 140. An indictment for a 
 larceny of live animals need not state them to be alive, because the 
 law will presume them to be so, unless the contrary be stated ; but 
 if, when stolen, the animals were dead, that fact must be stated ; for, 
 as the law would otherwise presume them to be alive, the variance 
 would be fatal. R. v. Edwards, R. & R. 497 : R. v. Hallowaiy, 1 C.S 
 P. 128. See R. v. Williams, 1 Mood. C. C. 107. But if an animal have 
 the same appellation whether it be alive or dead, and it makes no 
 difference as to the charge whether it were alive or dead, it may be 
 called, when dead, by the appellation applicable to it when alive. R. 
 V. Puckering, 1 Mood. C. C. 242. An indictment for stealing chattels, 
 which are the subject of a larceny only in particular cases or under 
 certain circumstances, must show that they fall within the requisite 
 description. Thus, an indictment for stealing "three eggs" was 
 ruled to be bad, because only the eggs of animals domitoe natwrm are 
 the subject of larceny. R. v. Cox, 1 C. & K. 494 ; sed qucere; see 
 R. V. Gallears, 1 Dem. C. C. 502. An indictment for stealing "fowls" 
 ought to describe them as "tame" or " domestic ;" and query, whether 
 the omission of such a description is the subject of amendment. R. 
 v. Lonsdale, ^ F. & P. 56. But an indictment for bestiality, which 
 described the animal as " a certain biteh," was held sufficiently cer- 
 tain, although the females of foxes and some other animals, as well as 
 of dogs, are so called. R. v. Allen, X C. & K. 495. An indictment 
 which charged that the defendant stole " one ham of the value of 
 ten shillings, of the goods and chattels of J. S." was held sufficient. 
 R. V. Gallears, 1 Den. C. C. 501. 
 
 The prosecutor is bound (subject to the power of amendment given 
 by the 14 & 15 Vict. c. 100, s. 1) by the description of the species of 
 goods stated ; as, for instance, an indictment for stealing a pair of 
 shoes cannot be supported by evidence of a larceny of a pair of boots. 
 But a variance in the number of the articles, or in their value, is im- 
 material, provided the value proved be sufficient to constitute the 
 offence at law. So, if there be ten different species of goods enume- 
 rated, and the prosecutor prove a larceny of any one or more of a 
 sufficient value, it wiU be sufficient, although he fail in his proof of 
 the rest. But where value is essential to constitute the offence, and 
 the value is ascribed in the indictment to many articles collectively, 
 the offence must be made out as to all the articles, for the grand jury 
 have ascribed the value to all the articles collectively. R. v. Forsyth^ 
 
Indictment. 59 
 
 R. <6 R. 274. Although, to make a thing the subject of larceny, it 
 must be of some value, yet it need not be of the value of some coin 
 known to the law, i. e. of a farthing at the least. R. v. Morris, 9 C; 
 c6 P. 349. And no indictment shall be held insufficient for want of 
 the statement of the value or price of any matter or thing, or the 
 amount of damage, injury, or spoil, in any case where the value or 
 price, or the amount of damage, injury, or spoil, is not of the essence 
 of the offence : 14 tfc 15 Vict. c. 100, s. 24. If money stolen be de- 
 scribed as " of the goods and chattels" of the prosecutor, these words 
 may be rejected as surplusage, and the indictment will be sufficient. 
 R. V. Radlei/, 1 Den. C. C. 450 ; iC.S K. 974. So, in an indictment 
 which charged that the defendant by false pretences obtained from 
 A. " a cheque for the sum of 81. 14s. &d. of the monies of B.," this was 
 held a sufficient allegation that the cheque was the property of B., 
 the words " of the monies" being rejected as surplusage. R. v. God- 
 frey, 1 Dears. & B. O. C. 426. 
 
 Before the statute 14 & 15 Vict. c. 100, money was described in an 
 indictment as so many " pieces of the current gold," or " silver," or 
 
 " copper coin of the realm, called ," and the particular species of 
 
 coin must have been specified. See R. v. Fry, R. & R. 482 : R. v. 
 Warshamer, 1 Mood. C. C. 466 : R. v. Radley, 1 Den. C. C. 450. And 
 if a larceny of particular pieces of coin, as sovereigns, half-sovereigns, 
 crowns, etc. was charged, the indictment was not supported by proof 
 of the stealing of a sum of money, which must have consisted of some 
 or other of the coins mentioned in the indictment, without proof of 
 the stealing of some one or more of the specific coins named. R. v. 
 Bond, 1 Den. C. C. 517. But now, by 14 & 15 Vict. c. 100, s. 18, 
 " In every indictment in which it shall be necessary to makei 
 any averment as to any money or any note of the Bank of 
 England or any other bank, it shall be sufficient to describe such 
 money or bank-note simply as money, without specifying any par- 
 ticular coin or bank-note ; and such allegation, so far as regards 
 the description of the property, shall be sustained by proof of any 
 amount of ooia or of any bank-note, although the particular species' 
 of coin of which such amount was composed, or the particular nature 
 of the bank-note, shall not be proved, and in cases of embezzlement 
 and obtainuig money or bank-notes by false pretences, by proof that 
 the offender embezzled or obtained any piece of coin or any bank- 
 note, or any portion of the value thereof, although such piece of coin 
 or bank-note may have been delivered to him in order that some part 
 of the value thereof should be returned to the party delivering the 
 same, or to any other person, and such part shall have been returned 
 accordingly." As to the extended meaning to be assigned to the 
 word "indictment" in this section, see 14 & 15 Vict. c. 100, s. 30,' 
 ante, p. 49. Notes of a provincial bank, which were not at the time- 
 of the commission of the offence in circulation for value, but which 
 were paid in at one branch of the bank, and were in course of trans- 
 mission to another branch, at which they had originally been issued, 
 in order that they might there be re-issued or otherwise disposed of 
 — it not being the practice of the bank to re-issue at one branch 
 notes originally issued at another — were held to be bank-notes' 
 within 14 & 15 Vict. c. 100, s. 18. R. v. West, 1 Dears. & B. C. C. 
 109. 
 
 Besides what we have hitherto said relative to the certainty required" 
 in the statement of an offence in an indictment, it is necessary to add, 
 that, in an indictment for murder, the word murdravit, Dy. 261-aj in - 
 
60 Indictment. 
 
 an indictment for rape the word rapuit, Stawnd. 26 a, and in an indict- 
 ment for larceny the vrorAs felonice cepit et asportavit, 4 Bl. Com. 305, 
 are absolutely necessary ; tliey are technical words, essential to the 
 definition of the offence, without which these offences respectively 
 cannot be described upon the record : and if omitted, the defendant 
 may demur, move in arrest of judgment, or bring a writ of error. 
 The words " vi et armis" though they have commonly been inserted 
 in indictments for offences against the person, are not essential. 37 
 -ff. 8, c. 8 ; 7 G. 4, c. 64, «. 20 ; see now U & 15 Vict. c. 100, s. 24. 
 
 The intention of the party at the time he committed the offence is 
 often a necessary ingredient in it ; and in such cases it is as necessary 
 to state the intention in the indictment, as any other of the facts and 
 circumstances which constitute tlie offence. See B. v. Phillips, 6 
 JEast, 464. (See post, Part II., Ch. I.) In some cases the law has 
 adopted certain technical expressions to indicate the intention with 
 which an offence is committed ; and in such cases the intention must 
 be expressed by the technical word prescribed, and no other. Tlius, 
 treason must be laid to have been done " traitorously ;" all felonies 
 (whether at common law or created by statute, B v. Gray, L. & C: 
 365 ; 33 L. J. (if. C) 78) to have been done '^feloniously ;" burglary 
 is laid to have been done ''feloniously and burglariously " and with 
 intent to commit a particular felony ; murder, "feloniously and of his 
 malice aforethought;" 2 Sale, 184, 187; forgery, "feloniously," if made 
 felony by statute, and " with intent to defraud," etc. 
 
 Where a statute annexes a higher degree of punishment to a com- 
 mon-law felony, if committed under particular circumstances, an in- 
 dictment for the offence, in order to bring the defendant within that 
 higher degree of punishment, must expressly charge it to have been 
 committed under those circumstances, and must state the circum- 
 stances with certainty and precision. 2 Hale, 170. 
 
 Lastly, as to indictments for offences created by statute: the statute 
 contains a definition of the offence ; and the offence consists of the 
 commission or omission of certain acts, under certain circumstances, 
 and in some cases with a particular intent. An indictment, therefore, 
 for an offence against the statute, must with certainty and precision 
 charge the defendant to have committed or omitted the acts, under the 
 circumstances and with the intent mentioned in the statute ; and if 
 any one of these ingredients in the offence be omitted, the defendant 
 may demur, move in arrest of j udgment, or bring a writ of error. The 
 defect will not be aided by verdict; see Lee v. Clarke, 2 East, 333, 
 nor will the conclusion contra formam statuti cure it. 2 Hale, 170. 
 And see B. v. Jukes, 8 T. B. 536 : Com. Dig. Information (D. 3). 
 But if the indictment describe the offence in tlie words of the statute, 
 after verdict it will be sufficient, in all offences created or subjected 
 to any greater degree of punishment by any statute. 7 G. 4, c. 64, 
 s. 21. See B. v. Warshaner, 1 Mood. C. C. 466 : Douglas v. B., 13 
 Q. B. 74: B. v. Eowlands, 2 Den. C. C. 364; 17 Q. B. 671: Nash 
 V. B., i B.dS. 935; 33 L. J. {M. C.) 94. In an indictment upon 
 the repealed stat. 5 JEliz. c 11, s. 2, (which makes it high treason to 
 clip, round or file any of the coin of the realm, " for wicked lucre or 
 gain's sake,") it was necessary to charge the offence to have been com- 
 mitted for the sake of wicked lucre or gain, otherwise it would be bad. 
 1 Sale, 220. So, an indictment on that part of the Black Act (now 
 repealed) which made it felony " wilfully and maliciously " to shoot 
 at any person in a dwelling-house or other place, was holden bad, 
 because it charged the offence to have been done " unlawfully and 
 
Indictment. 61 
 
 maliciously " omitting the ■word "wilfully;" R. v. Davis, 1 Leach, 
 556 ; some of the judges, indeed, thought that " maliciously " included 
 " wilfully ;" but the greater number held, that as " wilfully " and " ma- 
 liciously" were both mentioned in the statute as descriptive of the 
 offence, both must be stated in the indictment. See also R. v. Bent, 
 1 Den. C. C. 157 ; 2 C. <& K. 179. So, an indictment npon the re- 
 pealed stat. 7 (6 8 ff. 4, c. 30, s. 2, for feloniously, voluntarily, and 
 maliciously setting fire to a barn, was holden bad, because the words 
 of the statute are " unlawfully and maliciously." li. v. Turner, 1 
 Mood. C. C 239. So, an indictment upon stat. 9 G. 4, c. 31, s. 12, 
 charging the prisoner with " feloniously, wilfully, and maliciously 
 cutting," etc., is not sufficient, the words of the statute being ^^unlaw- 
 fully and maliciously." R. y.Ryan, 2 Mood. C. C. 16. So, where an 
 indictment on the repealed stats. 15 G. 2, c. 34, and 14 G. 2, c. 6, 
 which made it felony without benefit of clergy to steal any cow, ox, 
 heifer, etc., charged the defendant with stealing a cow, and in evi- 
 dence it was proved to be a heifer, this was holden to be a fatal 
 variance ; for the statute, having mentioned both cow and heifer, 
 proved that the words were not considered by the Legislature as 
 synonymous. R. v. Cook, 2 East, P. C. 616 ; 1 Leach, 123. See also 
 R. V. Douglas, 1 Camp. 212. So, where an indictment charged in one 
 count that the defendant did break to get out, and in another that he 
 did break and get out, it was holden insufficient, because the words 
 of the statute are " break out." R. Y.Compton, 1 C. & P. 139. In 
 like manner it was decided, that, as the repealed stat. 15 G. 2, c. 34, 
 specified lambs as well as sheep, a defendant could not be convicted 
 for stealing sheep upon an indictment for stealing lambs ; R. v. Loom, 
 1 Mood. C. C. 160; and a similar construction was put upon the re- 
 pealed stat. 7 <fe 8 G. 4, c. 29, s. 26. R. v. Puddifoot, 1 Mood. C. C. 
 247. But in R. v. MOulley, 2 Mood. C. C. 34, an indictment under 
 the last-mentioned statute for killing a sheep, with intent to steal the 
 carcase, was held to be supported by proof of killing a ram or ewe, 
 the words of the statute being "ram, ewe, sheep, or lamb;" a ma- 
 jority of the judges considering " sheep " a generic term, including the 
 former words. See also R. v. Spicer, 1 Den. C. C. 82 ; 1 C. d K. 699. 
 Where a word not in the statute is substituted in the indictment for 
 one that is, and the word thus substituted is equivalent to the word 
 used in the statute, or is of more extensive signification than it, and 
 includes it, the indictment will be sufiicient. As, for instance, if the 
 word " knowingly " be in the statute, and the word " advisedly " be 
 substituted for it in the indictment, R. v. Fuller, 1 Bos. d P. 180, or 
 the word " wilfully" in the statute, and "maliciously" in the indict- 
 ment, (the words "advisedly" and "maliciously" not being in the 
 statutes respectively,) the indictment would be suflScient. It is much 
 better, however, to pursue strictly the words of the statute, as it pre- 
 cludes all question about the meaning of the expressions used ; be- 
 sides, the court, in favorem vitce, are sometimes inclined to listen to 
 and countenance very nice distinctions upon the subject. Thus, an 
 indictment upon the repealed stat. 2 G. 2, c. 25, (which made the 
 stealing of" bank-notes" felony,) charging the defendant with steal- 
 ing " a certain note commonly called a bank-note," was holden bad, 
 because it did not follow the description of the property in the statute. 
 R. V. Oravem,, R.&R.U;^ East, P. C. 601, 602. So, under the re- 
 pealed stat. 2 <fc 3 Ed. 6, c. 33, which contained only the words 
 " horse, gelding, or mare," upon an indictment for stealing two colts, 
 the judges were unanimously of opinion that, as colts were not men- 
 
62 Indictment. 
 
 tioned eo nomine in the statute, they could not take notice that they 
 were of the horse species ; R. v. Beaney, ij. c§ iZ. 416 ; although upon 
 the same statute it was decided that an indictment for stealing " a 
 mare " was proved by evidence of stealing a filly. R. v. Wellamd, R. 
 & R. 494. See also R. v. Chard, R. & R. 488, and the cases above 
 mentioned. And pursuing the words in the statute is sufficient, unless 
 indeed they are generic terms, in which case it is necessary to state 
 the species, according to the truth of the case. Thus, in an indict- 
 ment on Stat. 37 G. 3, c. 70, making it felony to endeavour to seduce 
 a soldier or sailor from his duty, it is sufficient to charge an endeajvow, 
 etc., without specifying the means employed. R. v. Fuller, 1 Bos. & 
 P. 180. But where a statute (for instance) makes the maliciously 
 killing of cattle a felony, it is not sufficient in an indictment on the 
 statute to charge the defendant with killing " cattle " generally, but 
 the species of cattle, as horse, mare, gelding, cow, ox, heifer, etc., 
 must be stated. R. v. Chalhley, R. cfc R. 258. And where the sub- 
 ject of the indictment cannot be brought within the meaning of the 
 statute without the aid of extrinsic evidence, it is necessary, besides 
 charging the offence in the words of the statute, to aver such facts 
 and circumstances as may be necessary to bring the. matter within 
 the meaning of it ; as, for instance, where, by the usage of a public 
 office, the bare signature of a party upon a navy bUl operates as a 
 receipt, an indictment for forging such a receipt, setting forth the 
 navy bill and indorsement, and charging the defendant with having 
 forged " a certain receipt for money ; to wit, the sum of 25/. men- 
 tioned and contained in the said paper upon a navy bill, which forged 
 receipt was as follows ; that is to sa,j,— William Thornton, Williami 
 Hunter," was holden bad, because it did not show by px'oper aver- 
 ments that these signatures imported a receipt. ' R. 'v. Hunter, 2 
 Leach, 624 ; 2 East, P. C. 928. See R.,y. Barton, 1 Mood. C. C. 141. 
 In like manner it was holden that an indictment for forging the word 
 "settled" at the bottom of a bill, must show by proper averments 
 that it is a receipt. R. v. Thompson, 2 Leach, 910. See R. v. Board- 
 man, 2 M. & Rob. 147. By stat. 7 G. 4, c. 64, s. 21, no objection can 
 be taken after verdict to any indictment for any offence created or 
 subjected to any greater degree of punishment by statute, if the in- 
 dictment follow the words of the statute. It is still, however, neces- 
 sary, as in the two cases last above cited, to aver such facts and circum- 
 stances as are necessary to bring the case within the operation of the 
 particular statute upon which the indictment is founded. The statute 
 itself need not be recited. 
 
 If there be any exception contained in the same clause of the act 
 which creates the offence, the indictment must show, negatively, 
 that the defendant, or the subject of the indictment, does not come 
 within the exception. Spieres v. Parker, 1 T. ^. 141 : R. v. Eam- 
 shaw, 15 East, 456 : R. v. Jarvis, 1 East, 643, n. : R. v. Pratten, 6 
 T.R. 559. And see R. v. Baxter, 5 T. R. 83 : Leach, 580 ; 2 East, 
 P. a 782 : R. V. Masters, IB.&Ald. 362 : R. v. Pearce, R. & R. 174 : 
 R. V. Robinson, Id. 321. If, however, the exception or proviso be in 
 a subsequent clause or statute, R. v. Hall, 1 T. R. 320, or, although 
 in the same section, yet if it be not incorporated with the enacting 
 clause by any words of reference. Steel v. Smith, 1 B. db Aid. 94, it 
 is in that case matter of defence for the other party, and need not be 
 negatived in the pleading. 
 
 As to the proper mode of stating the title, etc. of a statute in 
 pleading, see R. v. Biers, 1 A. d; E. 327 : Gibbs v. Pike, SM.diW.. 
 
Indictment 63 
 
 223 : Bech v. Beoerley, 11 M.dbW. 845 : B. v. Westley, 1 Bell, C. C. 
 193. 
 
 Before we conclude this part of onr subject, it may be necessary to 
 observe that no pai-t of the indictment must be in figures ; and there- 
 fore numbers, dates, etc. must be stated in words at length. 2 Bale, 
 170. The only exception to this is, where a facsimile of a written 
 instrument is set out, as was formerly necessary, and is still sometimes 
 done, in an indictment for forgery ; in which case it must be set out 
 in the indictment in words and figures, as in the original itself R. 
 V. Mason, 1 East, 180, n. 
 
 In conclusion, if all the ingredients of the ofience (whether it be 
 an offence at common law or one created by statute) be not set forth 
 in the indictment, or if any of them be not stated with sufficient cer- 
 tainty, the defendant may demur, move in arrest of judgment, or bring 
 a writ of error. See R. v. Mason, 2 T. R. 681. But in oifences created 
 by statute, or subjected to a greater degree of punishment by any 
 statute, (although the defendant may demur, if the indictment do not 
 describe the offence with sufficient certainty,) he cannot, if it describe 
 the offence in the words of the statute, move in arrest of judgment, or 
 bring a writ of error ; for, after verdict, the indictment will, in that 
 case, be sufficient to warrant the punishment. 7 (?. 4, c. 64, s. 21. A 
 count of an indictment, laid under sect. 221 of the Bankruptcy Act, 
 1861, charged that the defendant was adjudged bankrupt in the 
 London District Court of Bankruptcy, and that, upon his examina- 
 tion in the said coiirt, with intent to deiraud and defeat the rights of 
 his creditors, he did not folly and truly discover to the best of his 
 knowledge and belief all his property, to wit, all his personal pro- 
 perty in money and goods. The defendant having been found guilty, 
 upon error brought, it was contended that the count was bad for un- 
 certainty in not setting out the number and value, or even the kind 
 of goods referred to in it ; but it was held that any want of certainty 
 which existed was cured after verdict by the 7 G. 4, c. 64, s. 21. 
 Nash V. R., iB.S S. 935 ; 33 L. J. (M. C.) 94. No objection can 
 now be taken to any indictment for that the matters alleged, or the 
 persons described in it, do not correspond in number or gender with 
 the description in the statute upon which the indictment is framed ; 
 for whenever any statute relating to any offence, whether punishable 
 upon indictment or summary conviction, in describing or referring 
 to the offence, or the subject-matter on or with respect to which it 
 shaU be committed, hath used or shall use words importing the sin- 
 gular number or the masculine gender only, yet the statute shall be 
 understood to include several matters, several persons, females and 
 males, bodies corporate and individuals, unless it be otherwise 
 specially provided, or there be something in the subject or context 
 repugnant to such construction. 7 <6 8 (?. 4, c. 28, s. 14. 
 
 Neither shall any indictment for any offence be held insufficient 
 for the omission of the words " as appears upon the record," or of the 
 words " with force and arms," or of the words " against the peace," 
 nor for the insertion of the words " against the form of the statute," 
 instead of " against the form of the statutes," or vice versd ; nor for 
 that any person mentioned in the indictment is designated by a name 
 of office, or other descriptive appellation instead of his proper name. 
 14 d 15 Vict. c. 100, s. 24. 
 
 Indictment must not he double.'] — The defendant ought not to be 
 charged with having committed two or more offences in any one count 
 
64 Indictment. 
 
 of the indictment : for instance, one count cannot charge the defendant 
 with having committed a murder and a robbery, or the like. So, two 
 defendants cannot be jointly charged with murder or manslaughter by 
 means of an injury done by one of them to tlie deceased on one day 
 and another injury done by the other of them on a different day. li. 
 V. Devett, 8 C.<& P. 639. An exception to this rule is to be found in 
 indictments for burglary, in which it is usual to charge the defendant 
 with having broken and entered the house with intent to commit a 
 felonj', and also with having committed the felony intended. And in 
 indictments for embezzlements by clerks and servants or persons em- 
 ployed in the public service or in the police, the prosecutor may charge 
 any number of distinct acts of embezzlement, not exceeding three, 
 which may liave been committed against the same master within six 
 months inclusive. 24 c6 25 Fici.c. 96, s. 71. The proper course, how- 
 ever, under this statute, seems to be to charge the several acts in 
 several counts. R. v. Purchase, C. & Mar. 617 : see also 24 & 25 
 Vict. c. 96, ss. 5, 6, post, p. 71. Laying several overt acts in a count 
 for high treason is not duplicity, Kelynge, 8, because the charge con- 
 sists of the compassing, etc., and the overt acts are merely evidences 
 of it ; and tlie same as to conspiracy. That the defendant published 
 and caused to be published a libel is not double, for they are the same 
 offence. So, a count in an indictment charging a man with one en- 
 deavour to procure the commission of two offences, is not bad for 
 duplicity, because the endeavour is the offence charged. R. v. Fuller, 
 
 1 Bos. & P. 180. So, if a person be charged, under 11 Cr. 4 (6 1 W. 
 4, c. 66, s. 20, with " destroying, defacing, and injuring" a register, it 
 being all one act. R. v. Bowen, 1 Den. C. C. 21 ; 1 C. (& K. 501. 
 And it is now generally understood, that a man may be indicted for 
 the battery of two or more persons in the same count, R. v. Benfield, 
 
 2 Burr. 984 : see 2 Str. 890 ; 2 Ld. Raym. 1572, contra, or for a libel 
 upon two or more persons, where the publication is one single act, 
 R. V. Jenner, 7 Mod. 400 ; 2 Burr. 983, without rendering the count 
 bad for duplicity. In felonies, also, the indictment may charge the 
 defendant, in the same count, with felonious acts with respect to 
 several persons — as, in robbery, with having assaulted A. and B., 
 and stolen from A. one shilling, and from B. two shillings — if it was 
 all one transaction. R. v. Giddins, C. & Mar. 634. 
 
 In civil actions, the only mode of objecting to pleadings for du- 
 plicity was by special demurrer, before special demurrers were 
 abolished by 15 & 16 Vict. c. 76 ; it was cured by general demurrer, 
 or by the defendant's pleading over. In criminal cases, the defendant 
 may object to it by special demurrer, perhaps also upon general 
 demurrer, or the court in general, upon application, will quash the 
 indictment ; but it seems that duplicity cannot be made the subject 
 of a motion in arrest of judgment or of a writ of error ; Nash v. 
 R., iB.t&S. 935 ; 33 L. J. (i/. C.) 94 ; and it is cured by a verdict 
 of guilty as to one of the offences, and not guilty as to tlie other. 
 
 It must be positive.']— 'Every {act and circumstance stated in an 
 indictmentmust be laid positively ; that is, the indictment must directly 
 affirm that the defendant did so and so, or that such a fact happened 
 under such and such circumstances ; it cannot be stated by way of 
 recital, " that whereas," etc., or the like. 2 Hawk. c. 25, s. 60 ; R. 
 V. Whitehead, 1 Salk. 371 : R. v. Crowhurst, 2 Ld. Raym. 1363 ; 
 1 Show. 337 : R. v. Askman, 1 Sess. Ca. 159. As, for instance, where 
 an indictment for not obeying a justice's order set forth the order by 
 
Indictment. 65 
 
 way of recital, " that whereas a certain order," etc., although it 
 charged the not obeying of the order positively, it was holden bad. 
 R. V. Orowhurst, 2 Ld. Raym. 1363. So, stating a matter by way of 
 argument or inference would render the indictment bad ; as, for in- 
 stance, that by a certain indenture testatum existit that J. S. demised, 
 etc. ; and this, perhaps, even in mere matter of inducement, although 
 in one case the contrary certainly has been decided. R. v. Goddard, 
 3 Salk. 171. 
 
 A defect in these respects is not cured by verdict ; and consequently 
 the defendant may take advantage of it by demurrer, motion in arrest 
 of judgment, or writ of error. 
 
 It must not be repugnant.'] — Where one material part of an indict- 
 ment is repugnant to another, the whole is void ; as, for instance, an 
 indictment charging tlie defendant with forging abend by which J. S. 
 was bound, etc. (which is impossible if the writing be forged) ; or with 
 disseising A., and it appears upon the face of the indictment that A. 
 had but an estate for years ; 2 Hawk. c. 25, s. 62 ; with stealing the 
 goods of the said J. S. where the name of J. S. was not previously 
 mentioned ; Id. s. 72 ; or in the parish aforesaid, where no parish 
 was before mentioned ; for forging a bill of exchange, stating it to be 
 signed by the party whose signature was alleged to be forged ; R. v. 
 Carter, 2 East, P. C. 985 ; or the like. If the repugnancy be in an 
 immaterial part, it may in general be rejected as surplusage, especially 
 after verdict. Bac. Abr., Pleas, (14). Thus, upon an indictment, 
 tempore 1 G. 4, for stealing a mare in the fourth year of the reign of 
 G. 4, against the peace of our lord the now King, the words " fourth 
 year of the" may be rejected as sui-plusage. R. v. Gill, R. & R. 431. 
 But still it is a general rule, that an allegation in pleading, which is 
 sensible and consistent in the place where it occurred, and not re- 
 pugnant to antecedent matter, cannot be rejected as surplusage, though 
 laid under a videlicet, however inconsistent it may be with an allega- 
 tion subsequent. R. v. Stevens, 5 East, 244. One count of an in- 
 dictment charged A. with stealing a promissory note from B. ; a second 
 with stealing a bank-note fromB. ; and a third, with receiving the 
 goods " so as aforesaid feloniously stolen." It was held, after verdict, 
 that the indictment was not objectionable on the ground of repug- 
 nancy ; for, first, the words of reference in the third count did not 
 necessarily import a stealing of the goods by A. ; and secondly, if 
 they did the count was conceivably capable of proof R. v. Craddock, - 
 2 Dem. C. C. 31. 
 
 Avermemts how made.'] — The usual way of making an averment in 
 an indictment is thus : " AtuI the jurors aforesaid, upon their oath 
 aforesaid, do further present, that,'" etc.; or if it be connected with 
 what has immediately preceded it, it may be introduced simply thus : 
 " And that," etc., then proceeding to state the matter of the aver- 
 ment. But when the matter of the averment is but a mere adjunct 
 of some person or thing preceding, it does not require even this 
 technical mode of introducing it; thus, " that A. being an officer," 
 etc., is a sufiicient averment that A. was an officer ; see R. v. Johnson, 
 2 Roll. Rep. 226 : R. v. Boyall, 2 Burr. 832 ; R. v. Bootie, Id. 864 : 
 R. V. Biggins, Id. 1232 : R. v. Somerton, 1 B. & C. 463 ; 2 Hawk, 
 c. 25, s. 112, "that A., knowing that B., was indicted for forgery, 
 concealed a witness against him," is a sufficient averment that B. 
 was indicted ; Fitzg. 122, 263 ; so, dans plagam mortalem," R. v. 
 
66 Indictment 
 
 Long^ 5 Co. 129 ; March, pi. 137, or " sciens that," etc., R. v. Lawley, 
 2 S<r. 904, is a good averment. So, where an indictment for perjury 
 stated that " at and upon the hearing of the said complaint," the de- 
 fendant deposed, etc., this was holden to be a sufficient averment that 
 the complaint was heard. R. v. Aylett, 1 T. R. 70. The ability of 
 a person to perform an act is sufficiently implied in and averred by 
 an averment that he unlawfully neglected to do that act. R. v. Ryland, 
 L. R., 1 C. a R. 99 5 37 L. J. (M. C.) 10. 
 
 3. Conclusion of the Indictment. 
 
 For an offence at common law.'] — ^An indictment for an offence at 
 common law concludes thus : " Against the peace of our lady the 
 Queen, her crown amd dignity.'' Indictments for nuisance usually 
 conclude : " to the great damage and common nuisance of all the 
 liege subjects of our said lady the Queen," etc., as well as "against 
 the peace," etc. . but this conclusion, ad commvme nocumenium, never 
 seems to have been essential. 
 
 The words " against the peace of our lady the Queen," were, it 
 seems, formerly essential in all cases ; 2 Bale, 188 : R. v. Paffrey, 
 Oro. Jac. b'21 : R. v. Leyton, Cro. Car. 584 : R. v. Lam,e, 6 Mod. 
 128 : R. V. Cooh, R. & R. 176 ; excepting in indictments for nora- 
 feasance ; R. v. Wyatt, 1 Salh, 381; 1 Vent. 108, 111; and even 
 in these they were uniformly used. See 2 Bale, 188, 189 : R. v. 
 Loohap, 3 Burr. 1901 : R. v. Taylor, b D. <& R. 422 : R. v. Winter, 
 Yelv. 66 : R. v. Scott, R. & R. 415. But now, by 14 & 15 Vict. c. 100, 
 s. 24, no indictment shall be held insufficient for the omission of the 
 words " against the peace." 
 
 The words " her crown and dignity," though always used, were 
 never essential. 2 Bale, 188. 
 
 For an offence hy statute.] — An indictment for an offence created 
 by statute concludes thus : " Against the form of the statute [or 
 statutes] in such case made aud provided, amd against the peace of owr 
 lady the Queen, her crown amd dignity." 
 
 Formerly great care was necessary in ascertaining whether the 
 expression " against the form of the statute " or " against the form 
 of the statutes " should be used, but by 14 & 15 Vict. c. 100, s. 24, 
 no indictment shall be held insufficient for the insertion of the words 
 " against the form of the statute " iustead of " against the form of 
 the statutes," or vice versa. 
 
 With regard to the cases in which the indictment should conclude 
 " against the form of the statute, etc.," instead of merely " against the 
 peace, etc.," the following rules have been laid down : — 
 
 Where a statute either creates the offence altogether, or makes an 
 offence at common law an offence of a higher nature (as, for instance, 
 where it makes a misdemeanor a felony), an indictment for the offence 
 must conclude contra formam statuti. 2 Bale, 192 ; 2 BawJc. c. 25, 
 «. 116 : R. V. Clark, 1 Salk. 370 : R. v. Barrison, 2 Roll. Rep. 38. If 
 the statute do not make it an offence of a higher nature, but merely 
 increase or otherwise alter the punishment, etc. (as, for instance, per- 
 jury under stat. 5 Eliz. c. 9), it has been said that the indictment, in 
 order to bring the offence within the statute, must conclude contra 
 formam statuti ; but that if it do not so conclude, it may still be a 
 good indictment for the offence at common law. 2 Bale, 191, 192. 
 This dictum of Lord BaU, however, appears not to be now recog- 
 
Indictment. 67 
 
 nized as law : see R. v. Williams, 7 Q. B. 250. If the statute be 
 merely declaratory of an offence at common law (as high treason, 
 for instance), without adding to or altering the punishment, etc., an 
 indictment for the offence may conclude contra formam statmti, or as 
 at common law. 2 Hale, 189. 
 
 But where a statute merely takes away a certain privilege or 
 benefit from a person committing a common-law offence under par- 
 ticular circumstances, to which benefit or privilege the defendant 
 would have been entitled at common law, as, for instance, where it 
 takes away the benefit of clergy from a common-law felony, an 
 indictment for the offence, although it must charge it to have been 
 committed imder the circumstances mentioned in the statute, should 
 not conclude contra formam staiuti. 2 Hale, 190. Thus, indict- 
 ments for murder, manslaughter, robbery, burglary, house-breaking, 
 stealing in a dwelling-house, horse-stealing, and the like, need not 
 conclude contra formam staiuti ; lb. ; unless, in the latter instances, 
 a larceny be committed of a thing whieli at common law was not the 
 subject of larceny. B. v. Pearson, 1 Mood. C. C.13;5C.<& P. 121 : 
 M. V. Chathum, 1 Mood. C. C. 403 : R. v. Berry, 1 M. & Rob. 463 : 
 R. V.Polly, XC.&K.ll: R. v. Williams, 7 <j. B. 250. An indict- 
 ment preferred at the assizes, under 1 & 8 Vict. c. 2, for an offence 
 committed on the high seas, need not conclude contra formam sta- 
 iuti. R. V. Serva, i C. & K. 53. In order to warrant a sentence of 
 transportation for life on an indictment for larceny after a previous 
 conviction for felony, the indictment need not conclude contra 
 formam staiuti. R. v. Blea, 8 C. & P. 735. An indictment for a 
 common-law felony, committed abroad, but made triable in this 
 country by statute, need not conclude contra formam statuti. R. v. 
 Sawyer, R. & R. 294. If an indictment conclude contra formam 
 statuti, when it should conclude as at common law, the mistake is not 
 material, and the words conira formam staiuti may be rejected as 
 surplusage. R. v. Matthews, 5 T. J?. 162 : R. v. Bathurst, Say. 225 : 
 Ward V. Rich, 1 Vent. 103. 
 
 The whole of the learning relating to the conclusion of indictments 
 seems, however, to have become obsolete since the passing of the 14 <& 
 15 Vict. c. 100, s. 24, which enacts, that no indictment for any offence 
 shall be held insufficient for the omission of the -words " against the 
 peace," nor for the insertion of the words " against the form of the 
 statute," instead of " against the form of the statutes," or vice versa, 
 nor for want of a proper or formal conclusion. The last nine words 
 were, according to Mr. Greaves, introduced to render any conclusion 
 perfectly unnecessary and immaterial. 2 Russ. C <& M., by Greaves, 
 326, n. (w), Ath ed. And where, on an indictment for a nuisance since 
 the passing of the 14 & 15 Vict. c. 100, it was objected to its vali- 
 dity that it ought to have concluded ad commwne nocum^ntum, it was 
 held that s. 24 rendered that conclusion unnecessary. R. v. Holmes, 
 Dears. C. C. 207. It is still, however, the practice, although it ap- 
 pears to be unnecessary, to conclude indictments for offences at 
 common law with the words " against the peace of our lady the Queen, 
 her crown and dignity," and to conclude indictments for offences by 
 statute with the words " against the form of the statute in such case 
 made and provided, and against the peace of our lady the Queen, her 
 crown and dignity." 
 
C8 Indictment. 
 
 Sect. 4. 
 joinder op two or more defendants in one indictment. 
 
 Where several persons join in the commission of an offence, all 
 or any number of them may be jointly indicted for it, or each of them 
 may be indicted separately. Thus, if several commit a robbery, bur- 
 glary, or murder, they may be indicted for it jointly, 2 Hale, 173, or 
 separately ; and the same where two or more commit a battery, or 
 are guilty of extortion or the like. R. v. AtkiTison, 1 Salk. 382. 
 And though they have acted separately, yet if the grievance is the 
 result of the acts of all jointly, all may be indicted jointly for the 
 offence. R. v. Trafford, \ B. & Ad. 874. Where money has been 
 obtained under false pretences, and the false pretences were conveyed 
 by words spoken by one defendant in the presence of the others, all 
 of whom acted in concert together, it was liolden that they might all 
 be indicted jointly. Young v. iJ., 3 T. R. 98. So, where two per- 
 sons joined in singing a libellous song, it was holden that they might 
 be indicted jointly ; R. v. Bmfield, 2 Burr. 985 ; and the same, where 
 two or more persons join in any other kind of publication of a libel. 
 But if the publication of each party be distinct, as if two booksellers, 
 not being partners, sell the libel at their respective shops, they must 
 be indicted separately. So, two or more cannot be jointly indicted 
 for perjury, ij. V. Phillips, 2 Str. 921, or for seditious or blasphemous 
 words, or the like, because such offences are in their nature several. 
 Even where several commit a joint act, which act, however, is not of 
 itself illegal, but becomes so merely by reason of some circumstances 
 applicable to each individual severally and not jointly, they must be 
 indicted separately ; 2 Hawh. c. 25, s. 89 ; thus, several partners 
 cannot be indicted jointly for exercising their trade, without having 
 served an apprenticeship. R.v. Atkinson, 1 Salk. 382 ; .B. v. Weston, 
 1 Str. 623. But principals in the first and second degree, and acces- 
 sories before and after the fact may all be joined in the same indict- 
 ment; 2 Hale, 173 ; or the principals may be indicted first, and the 
 accessories after the conviction of the principals, or before, for a sub- 
 stantive offence. (See ante, pp. 12, 13, 15, and 24 <& 25 Vict. c. 94, 
 ss. 2, 3.) It is said that several may be jointly indicted for severally 
 erecting common inns, ad commune nocumentum, if it be said that 
 they separaliter erexerunt, etc. ; and the same as to keeping disorderly 
 houses, etc. ; 2 Hale, 174 ; but it is much better, and more usual in 
 practice, to indict the proprietor of each house separately. 
 
 Misjoinder of defendants may be made the subject of a demurrer, 
 motion in arrest of judgment, or writ of error : or the court will in 
 general quash the indictment. But where there are different counts 
 against different persons in the same indictment, this, though it may 
 be a ground for moving to quash the indictment, is no cause of de- 
 murrer ; R. V. Kingston, 8 East, 41, provided the counts be otherwise 
 such in substance as may be joined. 
 
 Upon an indictment against two persons, charging them with a 
 joint and single offence, as stealing in the dwelling-house, both or 
 either may be found guilty, but they cannot be found guilty of sepa- 
 rate parts of the charge ; and if they be found guilty separately, 
 judgment cannot be passed upon one, unless a pardon be obtained 
 or a nolle prosequi be entered as to the other. R. v. Hempstead, 
 R. <& R. 344. Before the stat. 14 & 15 Vict. c. 100, if two were 
 charged jointly with receiving stolen goods, a joint act of receiving 
 
Indictment. 69 
 
 must have been proved : proof that one received in the absence of 
 the other, and afterwards delivered to him, would not suffice ; R. 
 V. Messingham, 1 Mood. C. C. 257 : see R. v. Archer, lb. 143 : 
 R. V. Parr, 2 M. & Rob. 346 : R. v. Dov^, 2 Den. C. C. 86 ; but this 
 was amended by the 14th section of that statute, which provided 
 that if, upon the trial of two or more persons indicted for jointly re- 
 ceiving any property, it should be proved that one or more of such 
 persons separately received any part of such property, it should be 
 lawful for the jury to convict upon such indictment such of the said 
 persons as should be proved to have received any part of such pro- 
 perty ; and see now 24 <& 25 Vict. c. 96. s. 94, in the same terms. 
 Several receivers may be charged in the same indictment with 
 separate and distinct acts of receiving. R. v. Pulham, 9 C. & P. 
 280 : R. V. Hayes, 2 M. & Rob. 156 ; 24 eg 25 Vict. c. 96, «. 93. 
 Where several persons are indicted for burglary and larceny, one 
 may be found guilty of burglary and larceny, and the others of the 
 larceny only. R. v. Butterworth, R. & R. 520. See R. v. Turner, 1 
 Sid. 171. On an indictment against A. & B. for larceny, with another 
 count against B. for receiving, A. was acquitted ; B. was found guilty, 
 on evidence which proved that he was an accessory before the fact 
 to the larceny, and a receiver, and the verdict against him was en- 
 tered generally; it was held that he was not, (since 11 <£ 12 Vict. 
 t. 46, s. 1, now repealed, but of which 24 & 25 Vict. c. 94, s. 1, is a re- 
 enactment,) entitled to an acquittal for the larceny. R. v. Hughes, 
 1 Bell, a a 242 ; 29 L. J. {M. C.) 71. 
 
 Sect. 5. 
 joinder of several offences in different counts in 
 
 ONE-«lNDICTMENT. 
 
 We have already seen (pmte, p. 63) that if a defendant be charged 
 with two or more offence/ in the same count of an indictment, the 
 count will be bad for duplicity, except in one or two excepted cases. 
 As to charging a defendant with different offences in different counts, 
 it admits of a different consideration. 
 
 In an indictment for high treason, there may be different counts, 
 each charging the defendant with a different species of treason against 
 the Queen and her government, such as compassing the Queen's death, 
 levying war, adhering to the Queen's enemies, within stat. 25 Ed. 3, 
 St. 5, c. 2, and the conspiracies to imprison or do bodily harm to the 
 Queen, within stat. 36 G. 3, c. 7, s. 1. 
 
 Although it is no objection in point of law to an indictment that it 
 charges the prisoner with several different felonies in different counts, 
 R. v. H^wood, L. & C. 451 ; 33 L. J. (M. C.) 133, yet. as matter 
 of practice a prisoner ought riot, in general, to be charged with dif- 
 ferent felonies in different counts of an indictment ; as, for instance, 
 a murder in one count and a burglary in another, or a burglary in the 
 house of A. in one count, and a distinct burglary in the house of B. 
 in another, or a larceny of the goods of A. in one count and a distinct 
 larceny of the goods of B., at a different time, in another, because 
 such a course of proceeding is calculated to embarrass the prisoner 
 in his defence. And where it has been adopted, and an objection is 
 taken to the indictment on that ground before the prisoner has 
 pleaded, or the jury are charged, the judge in his discretion may 
 
70 Indictment. 
 
 quash the indictment ; or if it be not discovered until after the jury 
 are charged, the judge may put the prosecutor to his election on 
 which charge he will proceed. Youvig v. R. 3 T.B. 106: R. v. Heywood, 
 mhi s/upra. Thus, where an indictment charged the prisoner in three 
 several counts with three several felonies in sending three separate 
 threatening letters, Byles, J., compelled the prosecutor to elect upon 
 which count he would proceed. R. v. Waird, 10 Cox, 42. But it is 
 no objection in arrest of judgment. 3 T. R. 98: see R. v. Hinley, 2 
 M. & Rob. 524: O'Connell v. i?., 11 Cla. d; Fin. 165. It seems that 
 the joinder of a count ior felony, with a count for misdemeanor, would 
 be held bad on demurrer, or, after a general verdict, on motion in 
 arrest of judgment. 3 T. R. 108 ; Starkie's Or. Fl. 43. But where 
 an indictment contains a count for felony, and also a coimt for mis- 
 demeanor, and the prisoner is convicted of the felony alone, such 
 joinder of counts for felony and misdemeanor furnishes no ground 
 for arresting the judgment. R. v. Ferguson, 1 Dean. C. C. 427. 
 Upon an indictment for receiving stolen goods, if it appear that the 
 articles were received at dififerent times, the prosecutor must elect as 
 to the receipt of which articles he will prosecute for 4 but the mere 
 prohahilitff that the goods were received at different times is no 
 ground for putting the prosecutor to his election. R. v. Dvain, 1 
 Mood. C. C. 146 : R. v. Hinley, 2 M.<& Rob. 524. Upon an indictment 
 for robbery, and for an assault with intent to rob in dififerent counts, 
 it has been held that the prosecutor ought to elect upon which he 
 would proceed: R. v. Gough, 1 M. di Rob. 71: R. v. Smith, 3 C. & P. 
 412 : but now it is to be observed, on the trial of an indictment for 
 robbery, the jury may convict of an assault with intent to rob; 24 & 
 25 Vict. c. 96, s. 41 ; so that the necessity of several counts in such a 
 case is done away with. Where the defendant was indicted, under 
 the repealed stat. 1 W.4c & 1 Vict. c. 86, s«. 2, 4, in several counts, for 
 stabbing, with intent to murder, with intent to maim and disable, and 
 with intent to do some grievous bodily harm, it was holden that the 
 prosecutor was not bound to elect upon which count he would proceed, 
 notwithstanding the judgment is by the statute different, being on 
 the first count capital, and on the others transportation. R. v. Strange, 
 8 C. (S P. 172. And where to those counts was added a count for a 
 common assault, and the prisoner being found guilty of a felonious 
 assault, the verdict was entered on the count for stabbing with 
 intent to do grievous bodily harm, under 7 TF. 4 tfe 1 Vict. c. 85, «. 11, 
 the conviction was held good. R. v- R. Jones, 2 Mood. C. G. 94; 8 
 C. & P. 776 : see also R. v. Fwguscm, Dears. C. C. 427. In a case 
 of arson, the indictment contained five counts, each charging a 
 firing of a house of a different owner: but it being opened that the 
 five houses were in a row, and the same fire burnt them all, the 
 judge would not put the prosecutor to elect, it being all one trans- 
 action. R. V. Trueman, 8 C. (& P. 727. The application for a prose- 
 cutor to elect is an application to the dxsoretion of the judge, founded 
 on the supposition that the case extends to more than one charge, 
 and may therefore be likely to embarrass the prisoner in his defence. 
 lb.: R. V. Einley^ 2 M. & Rob. 624. Even before the recent statutes 
 on this subject, it was no 'Objection, in point of law, that an indict- 
 ment charged prisoners in one coimt as principals in stealing, and in 
 another as receivers; but, upon a case reserved, the judges were 
 divided in opinion whether the prosecutor should have been put to 
 his election, and directed that both charges should not for the future 
 be put in the same indictment. R. v. GalUmay, 1 Mood. C. C. 234: 
 
Indictment. 71 
 
 M. V. Flower, 3 C. d P. A13: B. v. Madden, 1 Mood. C. C. 111. But 
 it is now expressly provided, that in any indictment for feloniously 
 stealing any property, it shall be lawful to add a count or several 
 counts for feloniously receiving the same property knowing it to be 
 stolen, and in any indictment for feloniously receiving any property 
 knowing it to be stolen, it shall be lawful to add a count for feloni- 
 ously stealing the same ; and the prosecutor of such indictment is 
 not to be put to any election, but the jury may find a verdict of 
 guilty on either count, against all or any of the persons charged. 
 24 & 25 Tict. c. 96, s. 92 (re-enacting 11 & 12 Vict. c. 46, s. 3). But 
 a count for stealing certain property ought not to be joined with a 
 count for receiving the same and other property ; and if it is, the 
 prosecutor wiU be put to his election. jB. v. Ward, iF.& F.19. A 
 defendant may be charged as accessory before the fact in one count, 
 and as accessory after the fact in another count, to the same felony, 
 without putting the prosecutor to his election, and may be convicted 
 on both counts. R. v. Blackson, 8 C. <& P. 43. So he may be in- 
 dicted as a principal in the first degree in one count, and as a prin- 
 cipal in the second degree in another count. R. v. Gray, 1 C. & P. 
 164. And a receiver may be indicted as an accessory in one count, 
 and for a substantive felony in another count ; and although, in his 
 discretion, the judge may put the prosecutor to his election, he will 
 not do so whenever it is clear that there is only one offence, and 
 the joinder of counts cannot prejudice the defendant. R. v. Austin, 
 1 C.&P. 796 : R. v. Eartall, Id. 475 : R. v. WheeUr, Id. 170 : R. 
 V. Pulham, d C. d P. 280. 
 
 In indictments for embezzlement, it has been seen (ante, p. 64), that 
 the prosecutor may charge any distinct number of acts of embezzle- 
 ment, not exceeding three, which may have been committed against 
 the same master within six months inclusive ; 24 t6 25 Vict. c. 96, 
 s. 71 ; the proper course being to charge the several acts in several 
 counts. And in indictments for larceny, also, it is now lawful to 
 insert several counts against the same person for any number of 
 distinct acts of stealing, not exceeding three, which may have been 
 committed by him against the same person within the space of six 
 calendar months from the first to the last of such acts, and to pro- 
 ceed thereon for all or any of them. 24 d; 25 Vict. c. 96, s. 5. Where 
 under this section the prisoner is charged in the same indictment 
 with more larcenies than one, the indictment ought to aver that the 
 subsequent larcenies were committed within six months of the first 
 larceny charged. So where an indictment contained a charge of 
 stealing on the 13th of February, and another charge of stealing on 
 the 15th of the same month, but did not aver that the larcenies were 
 within six months of each other. Pollock, C. B., put the prosecution 
 to elect on which charge to proceed. R. v. Lonsdale, i F. d F. 66. 
 By 24 d 26 Vict. c. 96, s. 6, if, upon the trial of any indictment for 
 larceny, it shall appear that the property alleged to have been stolen 
 was taken at different times, the prosecutor shall not by reason thereof 
 be required to elect upon which taking he will proceed, unless it shall 
 appear that there were more than three takings, or that more than 
 six calendar months elapsed between the first and the last of such 
 takings : and in either of such last-mentioned cases, the prosecutor 
 shall be required to elect to proceed for such number of takings, not 
 exceeding three, as appear to have taken place within the period of 
 six calendar months from the first to the last of such takings. Where, 
 an indictment charged the prisoner with stealing 1,000 cubic feet of; 
 
72 Indictment. 
 
 gas on a particular day, and the evidence was that the prisoner had 
 for several years drawn gas from the prosecutor's main by a pipe 
 which did not allow the gas to pass through the meter, it was held 
 that the circumstances attending the abstraction of gas by that means 
 for the whole of that time were rightly given in evidence, and that 
 the prosecutors were not called upon to elect under 24 & 25 Vict, 
 c. 96, s. 6, for the whole of the acts constituted one continuous taking, 
 and did not show separate takings at different times. E. v. Firth, 
 L. B., 1 a a R. 172 ; 38 L. J. {M. C.) 54. 
 
 Although a prosecutor is not, in general, permitted to charge a 
 defendant with different felonies in different counts, yet he may 
 charge the same telony in different ways in several counts, in order 
 to meet the facts of the case : as, for instance, if there be a doubt 
 whether the goods stolen, or the house in which a burglary or larceny 
 was committed, be the goods or house of A. or B., they may be 
 stated in one count as the goods or house of A., and in another as 
 the goods or house of B. See R. v. Egginton, 2 Bos. & P. 508. And 
 the verdict may be taken generally on the whole indictment. R. v. 
 Downing, 1 Den. C. C. 52 ; 2 C. & K. 382. But, inasmuch as the 
 word "felony" is not nrnnen collectivum (as "misdemeanor" is, see 
 Ryalls V. R., 11 Q. B. 781, 795), if the verdict and judgment, in such 
 case, be against the defendant for " the felony aforesaid," it will be 
 bad unless the verdict and judgment be warranted by each count of 
 the indictment. Campbell v. R., 11 Q. B. 799, 814. 
 
 The statute 7 (fc 8 ff. 4, c. 28, «. 6, which abolishes the benefit of 
 clergy in cases of felony, provides that nothing therein contained 
 shall prevent the joinder in any indictment of any counts which 
 might have been joined before the passing of that act. 
 
 Indictments for misdemeanors may contain several counts for dif- 
 ferent offences, and, as it seems, though the judgments upon each be 
 different. Young v. R., 3 T. R. 98, 105, 106 : R. v. TowU, 2 Marsh. 
 466: R. V. Johnson, 3 M. &Sel. 539 : R. v. Kingston, 8 East, 46 : and 
 see R. V. Bemfield, 2 Burr. 984 : R. v. Jones, 2 Camp. 131 ; Dich. 
 Q. S. 190, n. (i); Starhie's Cr. PI. 43. Even where several dif- 
 ferent persons were charged in different counts with offences of the 
 same natui-e, the court held that it was no ground for a demurrer, 
 though it might be for an application to the discretion of the court 
 to quash the indictment. R. v. Kingston, 8 East, 41. Where two 
 defendants were indicted for a conspiracy and a libel, and at the 
 close of the case for the prosecution there was evidence against both 
 as to the conspiracy, but against one only as to the libel, the judge 
 then put the prosecutor to elect which charge he would proceed 
 upon. R. V. Murphy, % C. & P. 297. On an indictment for con- 
 spiracy to defraud by making false lists of goods destroyed by fire, 
 one set of counts related to a fire in June, 1864, and another to a 
 fire in November, 1864. The prosecution was compelled to elect 
 which charge of conspiracy should be first tried, and to confine the 
 evidence wholly to that in the first instance. R. v. Barry, i F.&F. 
 389. And on an indictment against the manager and secretary of a 
 joint-stock bank containing many counts, some charging that the 
 defendants concurred in publishing false statements of the affairs of 
 the bank, and others that they conspired together to do so, the pro- 
 secutors were put to elect on which set of counts they would rely. 
 R. V. Burch, i F. S F. 407. If, where there are several counts 
 charging different offences in law, the judgment be entered up gene- 
 rally upon all, that the defendant "/or his said offences" be adjudged, 
 
Indictment. 73 
 
 etc., and it appears that any count was bad in law, the judgment will 
 be reversed on error. O'Connell v: E., 11 Cla. & Fin. 155. To 
 prevent this, it is now usual, in cases of misdemeanor, to pronounce 
 and enter up the same judgment separately, on each count of the 
 indictment. 
 
 Where a prisoner is indicted for a felony, it is not necessary to 
 prefer a separate bill against him for an attempt to commit it ; and 
 where he is indicted for a misdemeanor, it is not necessary to add 
 another count for an attempt to commit it ; because upon an indict- 
 ment for the felony or misdemeanor, if upon the trial it appear that 
 the defendant merely attempted to commit the offence, but did not 
 complete it, the jury may acquit him of the offence charged, and 
 find him guilty of the attempt. 14 & 16 Vict. c. 100, s. 9. So, upon 
 an indictment for robbery, the prisoner may now be found guilty of 
 an assault with intent to rob. 24 d 25 Vict. c. 96, s. 41. So, upon an 
 indictment for embezzlement, if the offence upon the evidence appear 
 to be a larceny, the jury may acquit the prisoner of the embezzle- 
 ment, and find him guilty of simple larceny, or of larceny as clerk 
 or servant; or upon an indictment for larceny, if upon the evidence 
 it appear to be embezzlement, the jury may acquit of the larceny, 
 and find the party guilty of the embezzlement. Id. s. 72. So, if 
 upon an indictment for obtaining money or goods by false pretences, 
 the offence upon the evidence turn out to be larceny, the defendant 
 notwithstanding may be convicted of the false pretences. Jd. s. 88. 
 So, upon an indictment for any misdemeanor, if the facts given in 
 evidence amount to a felony, the defendant shall not on that account 
 be acquitted of the misdemeanor, unless the court think fit to dis- 
 charge the jury, and order the defendant to be indicted for the 
 felony. 14 (& 15 Vict. c. 100, s. 12. But this provision applies only 
 where the facts given in evidence prove the a£t charged in the indict- 
 ment ; therefore, where on an indictment for a misdemeanor in having 
 carnal knowledge of a girl between ten and twelve years of age, 
 under the i-epealed statute 9 6. 4, c. 31, s. 17, the girl was proved to 
 be under ten years of age, it was ruled that the defendant could not 
 on this indictment be convicted of the felony of having carnal know- 
 ledge of a girl under the age of ten years. B. v. Sliott, 3 C. & K. 
 206. In all these several cases it is obviously unnecessary and use- 
 less to prefer a second bill, or to add a second count (where that 
 can be done) for the offence of which the defendant may be thus 
 convicted. 
 
 It may be necessary to mention, that the court will not order 
 counts to be struck out of an indictment, as they will out of a decla- 
 ration in civil cases ; for the latter is the suggestion of the party 
 merely, the former the finding of a grand jury. R. v. Pewtress, 2 
 Sir. 1026. 
 
 The commencement of a second or subsequent count is in form 
 thus : '■'■And the jurors aforesaid, upon their oath aforesaid, do further 
 present 'that," etc., so proceeding to state the offence. 
 
 Sect. 6. 
 
 within what time the bill must be prefeeeed. 
 
 At common law, there was no time limited for commencing a suit 
 by the king ; and therefore, in all cases of treason, felony, and mis- 
 w. . . E 
 
74 Indictment. 
 
 demeanor, where a time is not limited by statute, the indictment may 
 be preferred at any length of time after the offence. 
 
 Indictments for such high treasons as caused corruption of blood, 
 (with the exception of treason, by "designing, endeavouring or at- 
 tempting any assassination of the king by poison, or otherwise," 
 7 (6 8 TF. 3, c. 3, s. 6,) must be found by the grand jury within three 
 years next after the offence committed, if the offence have been 
 committed within England, Wales, Berwick-upon-Tweed, 7 c6 8 
 W. 8, c. 3, s. 6, or Scotland ; see Fast. 249 ; but if committed on the 
 high seas or in a foreign country, there is no time limited for the 
 prosecution. 
 
 Prosecutions upon the stat. 60 (?. 3 ^ 1 6r. 4, c. 1, to prevent the 
 training of persons to the use of arms, and to the practice of military 
 evolutions and exercise, must be commenced within six mouths after 
 the offence. Id. s. 7. 
 
 Prosecutions by indictment upon the stat. 9 G. 4, c.69, for offences 
 relating to game, must be commenced within twelve calendar months 
 after the commission of the offence. Id. s. 4. 
 
 Prosecutions by indictment or information upon the Smuggling 
 Act, 16 tfc 17 Vict. c. 107, must be commenced within three years 
 next after the date of the offence committed. Id. s. 303. 
 
 By stat. 31 Eliz. c. 5, all indictments or informations upon any 
 statute penal, whereby the forfeiture is limited to the King, must be 
 brought within two years after the offence committed : if the for- 
 feiture be limited to the King and prosecutor, the suit must be in one 
 year f and in default thereof, the same must be sued for the King 
 within two years after that year ended : but where a statute limits a 
 shorter time, the suit must be brought within such time limited. 
 
 Prosecutions for anything done in pursuance of "The Prison Act, 
 1865," must be commenced within six calendar months after the com- 
 mittal thereof. 28 & 29 Vict c. 126, s. 50. 
 
 Prosecutions for bribery or undue influence at parliamentary elec- 
 tions must be commenced within one year after the offence com- 
 mitted. 17 d; 18 Vict c. 102, s. 14 ; 26 Vict. c. 29, s. 5. 
 
 There are some few other cases in which a time is limited for com- 
 mencing a prosecution, which shall be mentioned under their respec- 
 tive heads in the course of the work. 
 
 In R. V. Willace, 1 East, P. C. 186, it was holden, upon the re- 
 pealed statutes relating to coin, that the information and proceeding 
 before the magistrate, upon the defendant's being taken, was to be 
 deemed the " commencement of the prosecution" within the meaning 
 of those acts. See also R. v. Brooks, 1 Den. 217 ■ 2 C. <& K. 402. 
 So, where the warrant of commitment for the offence was within the 
 time limited, but the indictment nbt till afterwards, this was held suf- 
 ficient. R.Y. Austin,! C.(& K. 621. But the mere issuing of a war- 
 rant to apprehend the defendant was held not to be a commencement 
 of the prosecution, within the 9 G. 4, c. 69, s. 4 : R. v. Hull, 2 F. & 
 F. 16, imless it be shown to have been executed within the time 
 limited for the commencement of the prosecution. R. v. Casbolt, 11 
 Cox, 386, 386. And proof of a warrant to apprehend the defendants 
 is not evidence of the commencement of the prosecution within the 
 time limited by 9 G. 4, c. 69, s. 4, although the warrant was issued 
 within the twelve months prescribed by that section, and although it 
 recites the laying of the informations ; but the information itself must 
 be given in evidence. R. v. Parker, L. & C. 459 ; 33 L. J. {M. C.) 
 185. Proof by parol that the prisoner was apprehended for treason 
 
Indictment. lb 
 
 respecting the coin, within three months after the offence was com- 
 mitted, was holden not to be sufficient, where the indictment was 
 after the three months, and the warrant to apprehend or to commit 
 was not produced. R. v. Phillips, R. <& R. 369. Where the prisoner 
 was indicted in 1869 for night poaching alleged to have been com- 
 mitted in 1863, and pleaded guilty, he was allowed to withdraw his 
 plea and plead not guilty, and no information and wai-rant being pro- 
 duced showing that the prosecution had been commenced within 
 twelve calendar months as directed by 9 G. 4, c. 69, s. 4, Byles, J., 
 directed an acquittal. R. y. Casbolt, 11 Coxj 385. In R.-v.Eillminster, 
 7 C.&P. 228, an indictment for night poaching was prefeiTed against 
 the defendant within twelve months after the commission of the of- 
 fence, and was ignored ; four years afterwards another bill was found 
 against him for the same offence, and upon an objection that the pro- 
 ceeding was out of time, Coleridge, J., doubted whether the first indict- 
 ment was not a proceeding sufficient to entitle prosecutor to proceed: 
 he reserved the point, but the defendant was acquitted upon the merits. 
 See also Tilladam v. Inhabitants of Bristol, ^N.&M. 144 ; 2A.&E. 
 389 ; 1L.J. (M. C.) 35. 
 
 Sect. 7. 
 indictment, how found. 
 
 In ordinary cases, upon furnishing the clerk of the arraigns or clerk 
 of the indictments at the assizes, or the clerk of the peace at sessions, 
 with the particulars of the offence, he will draw the indictment ; but 
 in cases where more than ordinary care may be requisite in framing 
 the indictment, it is better to get it drawn by counsel, and then let 
 it be engrossed on plain parchment, without stamp. Indorse on it 
 the names of the witnesses intended to be examined before the grand 
 jury. 
 
 Before the passing of the stat 19 <& 20 Vict. c. 54, it was necessaiy, 
 after the indictment was engrossed, that the crier or some other 
 officer of the court (see R. v. Dickenson, R. & R. 401 : R. v. Tew, 
 Dears. 429 ; 24 L. J. (M. C.) 62) should administer the oath to the 
 witnesses, and then the indictment was laid by the proper officer 
 before the grand jury. But by the above statute the swearing of the 
 witnesses in open court is dispensed with(s. 2), and by s. 1, the 
 " foreman" of the grand jury (which word shall include any member 
 of the grand jury who may for the time being act on behalf of the 
 foreman in the examination of witnesses in support of any bill of in- 
 dictment, s. 3) is authorized to administer an oath (or affirmation, 
 where by law it is required or allowed to be taken in lieu of an oath, 
 s. 3) to all persons who shall appear before such grand jmy to give 
 evidence in support of any bill of indictment, and all such persons 
 attending before any grand jury to give evidence, may be sworn and 
 examined upon oath by such grand jury touching the matters in ques- 
 tion ; and every person taking any oath or affirmation in support of 
 any bill of indictment, who shall wilfully swear or affirm falsely, 
 shall be deemed guUty of perjury ; and the name of every witness 
 examined or intended to be so examined shall be indorsed on such 
 bill of indictment, and the foreman of such grand jury shall write 
 his initials against the name of each witness so sworn and examined 
 touching such bill of indictment: provided, however, that nothing in 
 this act contained shall affect any fees by law payable to any officer 
 
 e2 
 
76 Indictment. 
 
 of any court for swearing witnesses, but such fees shall remain pay- 
 able as if that act had not passed. 
 
 Two indictments founded on the same case, one for felony under 
 a statute, and another for a misdemeanor at common law, ought not 
 to be preferred at the same time. See R. v. Doran, 1 Leach, 538 : 
 R. V. Smith, 3 C. (& P. 413. But the court of Queen's Bench will 
 not quash them in such a case. R. v. Stockley, 3 Q. B. 238 ; 2 G. & 
 D. 728 ; 11 L. J. {M. C.) 105. 
 
 After the indictment has been taken to the grand jury-room, it 
 will come under the consideration of the grand jury in its turn. The 
 witnesses are then called in, in the order in which their names are 
 indorsed on the indictment, and examined by the grand jm-y ; and 
 if the offence should appear to a majority of the jury (consisting of 
 twelve at least) to have been sufficiently proved, the clerk of the 
 grand jury will indorse on the indictment, " True bill;" but if the 
 majority should be of opinion that the offence has not been sufficiently 
 proved, the words " No true bill," are in that case indorsed on the 
 indictment. Afterwards, the foreman, accompanied by the other 
 grand jurors, carries the indictments so indorsed into court, and de- 
 livers them to the clerk of the arraigns, or clerk of the peace, who 
 thereupon states to the court the substance of each, and the indorse- 
 ment upon it. In strict legal parlance, an indictmentis not so called, 
 until it has been found a ^^true bill" by the grand jury; before that 
 it is named a bill merely. 
 
 The grand jury may require the same evidence, written and parol, 
 as may be necessary to support the indictment at the trial. They 
 are not, however, usually very strict as to the documentary evidence; 
 they often admit copies where the originals alone are evidence ; and 
 sometimes even evidence by parol of a matter which should be proved 
 by written evidence. But as they may insist on the same strictness 
 of proof as must be observed at the trial, it is prudent in all cases to 
 be provided, at the time the bill is preferred, with the same evidence 
 with which you intend afterwards to support the indictment. The 
 deposition of a witness who is so ill as not to be able to travel, which 
 under stat. 11 <& 12 Vict. c. 42, s. 17, may be given in evidence before 
 a petty jury on the trial, may also be read in evidence before the grand 
 jury. R. V. Clements, 2 Den. 251 ; 20 X. J. (M. C.) 193. But where 
 a witness refuses to give evidence before the grand jury, they cannot 
 use his deposition as evidence to enable them to find the bill. R. v. 
 Rendle, 11 Cox, 209. It must be observed, that it is no objection 
 that witnesses are called and examined at the trial, whose names are 
 not on the back of the indictment ; and that, in strictness, it is not 
 necessary for the prosecutor to call every witness whose name is on 
 the back of the indictment, although it is usual to do so, in order that 
 the defendant may have the benefit of cross-examination ; R. v. Sim- 
 monds, 1 G <fe P. 84: R. v. Beezley, A C. & P. 220: R. v. Vincent, 9 
 C. (6 P. 91 : R. V. Bull, Id. 22 ; and if the prosecutor will not call 
 them, the judge, in his discretion, may. R. v. Whitehead, i C. & P. 
 322, n,. : R. v. Holden, S C. S P. 610. It seems that an improper 
 mode of swearing the witnesses before the grandjury will not vitiate 
 the indictment, since they are at liberty to find a bill on their own 
 knowledge merely. R. v. Russell, C. & Mar. 2^1. See O'Connell v. 
 R., 11 Cla. <Ss Fin. 155. A witness who gives false evidence before 
 a grand jury is indictable for perjury, and the other witnesses ex- 
 amined on the same bill are good witnesses to prove it. R. v. 
 Hughes, \C.&K.bi2. 
 
Indictment. 77 
 
 If witnesses will not come forward voluntarily to give evidence 
 before the grand jury, you may sue out a subpcma or subpoena duces 
 tecum, either at the crown office in London, or with the clerk of the 
 arraigns in the country, for the assizes, or at the crown office, or with 
 the clerk of the peace for the sessions, and sei^ve each of them with 
 a copy, or subpcena ticket, as it is termed. Or, if the witness be in 
 prison, he may, if in civil custody, be brought up by hab. corp. ad 
 test, to be sued out in the manner hereinafter mentioned, under tit. 
 Evidence: if in criminal custody, he may be brought up by an order 
 from a judge, or a secretary of state, under 16 c6 17 Vict. c. 30, s. 9. 
 {See Booh I., Part II., Chap. II., Sect. 4, par. 6, post.) 
 
 The grand jurors of sessions of the peace must be qualified accord- 
 ing to the Stat. 6 G. 4, c. 60, s. 1 ; but grand jurors at the assizes re- 
 quire no qualification by estate ; neither do grand jurors at borough 
 sessions, since the h t& 6'W. 4, c. 76, ». 121. Sect. 122 of the same 
 act exempts members of the town-council of a borough from serving 
 upon any jury (thus including grand juries) summoned within such 
 borough, or summoned to serve in the county wherein such borough 
 is situate. But by 16 <£ 17 Vict. c. 79, s. 6, so much of the & <& 6 W. 
 4, c. 76, as exempts or disqualifies members of the council of every 
 borough in and for which a separate court of quarter sessions is 
 holden, from serving on the grand jury at the quarter sessions held 
 in and for such borough is repealed, so far as respects every borough 
 which shall not contain 12,000 inhabitants according to the last 
 census. Grand jurors need not be fi-eeholders; S. & R. 177; and 
 even an Irish peer, who is a member of the House of Commons, is 
 liable to serve upon the grand jury at the assizes as a commoner. Id. 
 117. They must, however, be •' of the king's liege people, returned 
 by sherifis or bailiff's of franchises, and of whom none shall be out- 
 lawed, or fled to sanctuary for treason or felony, otherwise the in- 
 dictment shall be void ;" 11 H. 4, c. 9 ; and if any one be outlawed, 
 the indictment is void, though twenty others be upon the inquest. 
 2 HaU, 155 ; Com. Dig. Indictment, (A.) In addition to this personal 
 qualification of grand jurors at the assizes, the indictment was for- 
 merly declared to be void, if any of the grand jury were returned at 
 the nomination of any ; but that part of the stat. 11 n. 4, c. 9, is now 
 repealed. 6 G. 4, c. 50, s. 62. The bill also must be found by a ma- 
 jority of the jurors, and that majority must consist of twelve at least ; 
 2 Hale, 161 ; for which reason it is that the number of persons on the 
 grand jury cannot exceed twenty -three, nor be less than twelve ; 2 
 Burr. 1088 : R. v. Marsh, 6 A. d E. 241 ; 6 L.J. {M. C.) 153. It is 
 said that the grand jury cannot find billa vera s.s to part, anA ignoramus 
 as to the other part of an indictment ; for they ought to find the whole 
 or nothing. 2 B'awk. c. 25, s.i: R. v. Ford, 1 Yelv. 99 : R. v. Serjeant, 
 1 Sid. 414. Thus, if, upon an indictment for libel, they find quoad the 
 words billa vera, sed utrum maliciose ignoramus, the finding is void. 1 
 Leon. 287. But this has reference only to the same count in the in- 
 dictment : for it is clear that they may find billa vera as to one count, 
 and ignoramus as to another. R. v. Fieldhouse, Cowp. 325. They 
 cannot, however, find the bill conditionally ; as, for instance, " si 
 messuagium sit in possessione domini regis, tunc billa vera^ R. v. Crom- 
 well, Yelv. 15. Upon an indictment for murder against A. and B., they 
 cannot find billa vera as to A., and, as to B., manslaughter only ; R. v. 
 Carew, 1 Roll. Rep. 407 ; for if it were murder in A., it could not be 
 merely manslaughter in B. But they might find billa vera as to A., 
 and ignoramus as to B. ; see R. v. Chomley, Cro.Car. 464 ; or they might 
 
78 Indictment. 
 
 find one or both of them guilty of manslaughter, although, in such a 
 case it is more usual for the grand jury to return the indictment to 
 the court, with a desire that it may be altered to a bill for man- 
 slaughter, and, when so altered, (which may readily be done,) to find 
 a true bill generally. Upon an indictment for murder, however, the 
 jury cannot find billa vera se defendendo; R. v. Powle, 2 Boll. Rep. 
 52 ; for the offence charged is a felony, the offence found is not. See 
 9 G. 4, c. 31, s. 10. 
 
 Indictments found at the sessions, and transmitted by the justices 
 to the assizes, must be tried at the assizes, although they be not re- 
 moved by certiorari. R. v. Wetherell, R. & R. 381. 
 
 Although the grand jury have been formally discharged yet if 
 they have not left the precincts of the court, nor separated, they 
 may be recalled and charged with other bills. R. v. Holloway, 9 C. 
 <fiP.43. 
 
 It may be necessary to mention, that if a bill be thrown out, 
 although, as it seems, it cannot again be preferred to the same grand 
 jury, during the same assizes or sessions, (see R. v. Humphreys, C. & 
 Mar. 601 ; sed qwere, see R. v. Newton, 2 M. <& Rob. 503,) it may be 
 preferred and found at the next sessions or assizes, if no time be 
 limited for preferring it, or if the time have not elapsed. 
 
 Sect. 8. 
 
 process, after indictment found, to compel appearance op 
 the accused. 
 
 Proceeding by Writ.'] — ^If a defendant against whom an indictment 
 has been found happen to be present in court, or in the custody of 
 the court, he may at once be arraigned upon the indictment, without 
 any previous process; 2 Hawk. c. 27; 1 Chit. C. L. 338; but if he 
 appears voluntarily, it is discretionary in the court to detain him, or 
 leave him to be taken in the ordinary way. HewsorHs case, 2 Lew. 277. 
 Where the defendant is in the custody of another court, the course 
 is to remove him by habeas corpus, and bring him up to plead. 
 And by 30 & 31 Vict. c. 35, s. 10, "where recognizances shall have 
 been entered into for the appearance of any person to take his trial for 
 any offence at any court of criminal jurisdiction, and a bill of indict- 
 ment shall be found against him, and such person shall be then in the 
 prison belonging to the jurisdiction of such court, under warrant of 
 commitment, or under sentence for some other offence, it shall be 
 lawful for the court, by order in writing, to direct the governor of the 
 said prison to bring up the body of such person, in order that he may 
 be arraigned upon such indictment without writ of habeas corpus, 
 and the said governor shall thereupon obey such order." When 
 an indictment for a misdemeanor has been found, a writ of venire 
 facias ad respondendum may be issued either by the Queen's Bench, 
 a judge of assize, or a court of quarter sessions. Com. Dig. Process, 
 A.l;6 Edw. 3, c. 11; 3 Edw. 1, c. 14. {See Outlawry, ^osi, ^. 83.) 
 If default in appearing be made, a writ of distringas is issuable ; and 
 it may be remarked, that in the case of indictments against the in- 
 habitants of a county, parish, or district, or against a corporation 
 aggregate, a writ of distringas is issuable in the first instance. The 
 form of a distringas is as follows: — , 
 
Indictment. 79 
 
 Victoria, etc., to the sheriff of the county of , greeting. We com- 
 mand you that you omit not hy reason of any liberty in your hailiwich, 
 
 hut that you enter the same, and distrain A. B., of , in your county 
 
 [yeoman], hy all his lands and tenements, etc., and that you answer for 
 the issues theireof, etc.; and that you have his body before our justices as- 
 signed to keep our peace, and also to hear and determine divers felonies, 
 
 trespasses, and other misdemeanors in the said county committed, at 
 
 in yow said coumiy, on the da/y of next ensuing, to answer 
 
 unto us concerning divers trespasses, contempts, and offences of which he 
 is indicted [or, to answer unto us, upon certain articles presented against 
 him the said A. B.], and have you there then this writ. Witness C. D. 
 
 and E. F. [two justices of the peace] at , the day of , 
 
 in the year of our reign. 
 
 If the party appear, a supersedeas may be obtained, either to stay 
 the execution of the writ, or procure a return of the amount levied. 
 i:& hW.& M.c.n; 10 East, 83 ; 2 Stra. 816, 1101 ; 6 Mod. 16. 
 Bac. Abr. tit. Attorney, B. But if the defendant fail to appear in the 
 limited time, and the sheriff make a return that he hath no lands, a 
 writ of capias ad respondendum may be issued, and if he cannot be 
 taken upon the first capias, a second and a third, called an alias and 
 aplmies, may issue. 4 Bla. Com. 319 ; 4 T. i?. 506, 521, 694; 2 H. 
 Bl. 419. Upon an indictment for felony a writ of capias is issued in 
 the first instance ; but this mode of proceeding is now rarely adopted, 
 except in process to outlawry. (See post, pp. 83, 84.) 
 
 The following is the form of the writ of Capias : 
 
 Victoria, etc., to the sheriff of the county of , greeting. We com- 
 mand you that you omit not by reason of amy liberty in your bailiunch, 
 
 but that you enter the same, and take A. B., of , in your county 
 
 [labourer], if he should be found in your bailiwick, and him cause to 
 be safely kept, so that you have his body before our justices assigned to 
 keep ov/r peace, and also to hear and determine divers felonies, tres- 
 passes, and other misdemeanors in the said county committed at in 
 
 your county, on the day of next ensuing, to answer unto us ■ 
 
 concerning divers trespasses, contempts, and offences of which he is in- 
 dicted, and have you there then this vmt. Witness C. D. cmd E. F. 
 
 [two justices of the peace], at , the day of , in the 
 
 year of our reign. 
 
 Proceeding by warrant of a justice.] — Proceedings in ordinary 
 cases are now regulated by 1 1 dS 12 Vict. c. 42, s. 3, by which it is 
 provided, that where any indictment shall be found by the grand 
 jury in any court of oyer and terminer or general gaol delivery, or in 
 any court of general or quarter sessions of the peace, against any 
 person who shall then be at large, and whether such person shall have 
 been bound by any recognizance to appear to answer to the same or 
 not, the person who shall act as clerk of the indictments at such court 
 of oyer and terminer or gaol deliveiy, or as clerk of the peace at such 
 sessions at which the said indictment shall be found, shall at any time 
 afterwards, after the end of the sessions of oyer and terminer or gaol 
 delivery or sessions of the peace at which such indictment shall have 
 been found, upon application of the prosecutor, or of any person on 
 his behalf, and on payment of a fee of one shilling, if such person 
 shall not have already appeared and pleaded to such indictment, grant 
 unto such prosecutor or person a certificate {see infra) of such indict- 
 
80 tndicimeni. 
 
 ment having been found ; and upon production of such certificate to 
 any justice or justices of the peace for any county, riding, division, 
 liberty, city, borough, or place in which the offence shall in such in- 
 dictment be alleged to have been committed, or in which the person 
 indicted in and by such indictment shall reside or be, or be supposed 
 or suspected to reside or be, it shall be lawful for such justice or 
 justices, and he and they are hereby required, to issue his or their 
 warrant {see infra) to apprehend such person so indicted, and to cause 
 him to be brought before such justice or justices, or any other justice 
 or justices for the same county, riding, division, liberty, city, borough, 
 or place, to be dealt with according to law; and afterwards, if such 
 person be thereupon apprehended and brought before any such justice 
 or justices, such justice or justices, upon its being proved upon oath 
 or affirmation before him or them that the person so apprehended is 
 the same person who is charged and named in such indictment, shall, 
 without further inquiry or examination, commit {see infra) him for 
 trial, or admit him to bail, in manner hereinafter mentioned. {See 
 Bail,^os<, Sect. 9.) 
 
 Form of certificate of indictment being fovmd.'] — / hereby certify that 
 at [a court of oyer and terminer and general gaol delivery, or a 
 court of general quarter sessions of the peace] , holden in and for the 
 [county] of ■ , at , in the said [county], ore a bill of in- 
 dictment was fovmd by the grand jury against A. B., therein described 
 
 as A. B., late of , [labourer], /or that he [etc., stating shortly the 
 
 offence], and that the said A. B. hath not appeared or pleaded to the 
 
 said indictment. Dated this day of , 187 . 
 
 J. D., clerk of the indictments on the circuit, [or 
 
 clerk of the peace of and for the said [county] ]. 
 
 Form of warrant to apprehend a person indicted.'] — To the constable 
 
 of , and to all other peace officers in the said [county] of . 
 
 Whereas it hath been duly certified by J. D., clerk of the indictments 
 
 on the circuit [or clerk of the peace of and for the [county] of 
 
 ] [that, etc., stating the certificate]: These are ther^ore to com- 
 mand you, in her Majesty's name, forthwith to apprehend the said A, B., 
 and to bring him before [me], or some other justice or justices of the 
 peace in and for the said [county], to be dealt with according to law. 
 
 Given v/ndeir my hand and seal this day of , in the year of 
 
 our Lord , at , in the [county] aforesaid. 
 
 J. S. (L.S.) 
 
 Form ofwa/rrant of commitment of a person indicted.'] — To the con- 
 stable of , a/nd to the keeper of the [common gaol or house of cor- 
 rection], at in the said [county] of . 'Whereas by [my] 
 
 warrant under [my] hcmd and seal, dated the day of , after 
 
 reciting that it had been certified by J. D. [etc., as in the certificate], 
 
 [I] commanded the constable of and all other peace officers of the 
 
 said county, in her Majesty's name, forthwith to apprehend the said 
 A. B., and to bring him before [me], the undersigned, [one] of her Ma- 
 jesty's justices of the peace in and for the said [county], or before some 
 other justice or justices of the peace in and for the said [county], to he 
 dealt with according to law: and whereas the said A. B. hath been 
 apprehended under and by virtue of the said warrant, and being now 
 brought before [me], it is hereupon duly proved to [me] upon oath that 
 the said A. B. is tJie same person who is named and charged in and by 
 
Indictment. 81 
 
 the said indictment: These are therefore to command you, the said 
 constable, in her Majesty^s name, forthvnth to take and safely convey 
 
 the said A. B. to the said [house of correction] at in the said 
 
 [county], amd there to deliver him to the keeper thereof, together with 
 this precept: and I hereby command you the said keeper to receive the 
 said A. B. into your custody in the said house of correction, and him 
 there safely to keep until he shall be thence delivered by dvs course of 
 
 law. Given under my hand and seal this day of , in the year 
 
 of our Lord , at in the [county] aforesaid. 
 
 J. S. (L.S.) 
 
 Backing warrants.'] — If the person against whom the warrant has 
 been issued be, or be supposed ta be, in any place in England or 
 Wales, out of the jurisdiction of the justice issuing such warrant, 
 the Stat. 11 ds 12 Vict. c. 42, s. 11, provides, that, upon proof alone 
 being made on oath of the handwriting of the justice issuing such 
 warrant, it shall be lawful for any justice of the peace for the county 
 or place in which the person against whom the warrant has been 
 . issued is, or is supposed to be, to indorse the warrant in the follow- 
 ing form ; and such indorsement shall be sufficient authority for the 
 execution of the warrant in that county or place: and in the same 
 way English warrants may be backed in Ireland, Scotland, or the 
 
 Isles of Man, Guernsey, Jersey, etc., and vice versa, [ , to vnt: 
 
 Whereas proof upon oath hath this day been made before me, one of 
 
 her Majesty's justices of the peace for the said [county] of , that 
 
 the name of J. S. to the within warrant subscribed is of the hand- 
 ■writing of the justice of the peace within mentioned : I do therefore 
 hereby authorize W. P., who bringeth to me this warrant, and all 
 other persons to whom this warrant was originally directed, or by 
 whom it may laujfully be executed, and also all constables and other 
 
 peace officers of the said [county] of , to execute the same within 
 
 the said last-mentioned [county], and to bring the said A. B., if 
 apprehended within the same [county], before me [or before some 
 other justice or justices of the peace of the same comity] to be dealt 
 
 with according to law. Given under my hand this day of , 
 
 187 .] J.L. 
 
 When the defendant is already in prison.] — If the person against 
 whom the indictment has been found be confined in any gaol or prison 
 for any other offence than that charged in the said indictment, at the 
 time of such application and production of the said certificate to such 
 justice or justices as aforesaid, it shall be lawfiil for such justice or 
 justices, and he and they are hereby required, upon it being proved 
 before him or them upon oath or affirmation that the person so indicted 
 and the person so confined in prison are one and the same person, to 
 issue his or their warrant, directed to the gaoler or keeper of the gaol 
 or prison in which the person so indicted shall then be confined as 
 aforesaid, commanding him to detain such person in his custody imtil 
 by her Majesty's writ of habeas corpus he shall be removed therefrom, 
 for the purpose of being tried upon the said indictment, or untU he 
 shall otherwise be removed or discharged out of his custody by due 
 course of law. 11 <& 12 Vict. c. 42, s. 3. 
 
 Form of warrant to detain a person in custody for another offence.] 
 
 — To the keeper of the [common gaol or house of correction] , at , 
 
 in the said [county] qf : Whereas it hath been duly certified by 
 
 £ 5 
 
82 Indictment. 
 
 J. D., clerk of the indictments on the circuit [or clerk of the peace 
 
 of and for the covmtyof ], that [etc., stating the certificate]: And 
 
 whereas [I am] informed that the said A. B. is in your custody in the 
 
 said [common gaol] at aforesaid, charged with some offence or 
 
 other matter; and it being nmv duly proved, upon oath before [me] that 
 the said A. B. so indicted as aforesaid, ami the said A. B. in your 
 custody as aforesaid are one and the same person: These are therefore 
 to command you, in her Majesty's name, to detain the said A. B. in 
 your custody in the [common gaol] aforesaid, until by her Majesty's 
 writ of habeas corpus he shall be removed therefrom for the purpose of 
 being tried upon the said indictment or until he shall otherwise be re- 
 moved or discharged out of your custody by due course of law. Gkem 
 
 under my hand and seal this .day of , in the yea/r of our Lord 
 
 , at , in the [county] aforesaid. 
 
 J. S. (L.S.) 
 
 Proceeding by bench warrant.'] — By a long course of practice, jt 
 is an established rule, that any court before which an indictment is 
 found may forthwith issue a bench warrant for arresting the party . 
 charged, and bringing him immediately before such court, to answer 
 such indictment. 8 -Rep. Orim. L. 99 ; Dick. Sess. 230 (6th ed.) ; 
 and see Oro. dr. Comp. 15 (\Qth ed.) ; 1 Chitty's Orim. L. 339 ; 3 
 Bum's J., tit. Process, 1338 (30th ed.), where it is said the practice 
 refers only to cases of misdemeanor. It is granted while the court is 
 sitting. 2 Hawk. c. 27, s. 8. If issued during assizes, it is signed 
 by a judge ; if at sessions, by two justices of the peace. When a 
 prosecutor applies for a bench warrant at the Central Criminal Court,, 
 a recognizance to prosecute the law with effect against the defendant 
 is required. Reg. Gfen., Jan. 1847; Car. c&M. 254. Where the party 
 against whom the indictment has been found is already under recog- 
 nizance to appear and answer any indictment that may be preferred 
 against him, and he does not appear, the prosecutor may bespeak a 
 bench warrant, which will be signed by the justices at the close of 
 the sessions ; for the sessions being in law but one day, the defendant 
 has the whole period of the sessions to appear. 2 Salk. 607 ; Oro. 
 Cir. Comp. 15 (10th ed.). The following is the form of a bench 
 warrant : — 
 
 Middlesex. — To all constables, headboroughs, and other her Ma- 
 jesty's ofp^ers and ministers within the county of Middlesex, and to 
 eoery one of them whom it may concern: These are to will and re- 
 quire, and in her Majesty's name to charge and command you, upon, 
 sight hereof, to bring before us her Majesty's justices of the peace for 
 the county aforesaid, at the sessions of the peace [or general quarter 
 sessions of the peaoe'] now holden at the Sessions House on Olerken- 
 well Greem, in aund for the said county, the body of A. B., who stands 
 indicted before us at this same session for a trespass and assault [na- 
 ture of the offence], if .the court be then and there sitting, or if not, 
 before us or some other of her Majesty's justices of the peace of the 
 same comity, to fmd sufficient sureties for his personal appea/rance at 
 this present sessions, to answer the said indictment and all such other 
 matters as on her Majesty's behalf shall be objected against him;, 
 and if he cannot be taken during this present session, that then, as 
 soon after as he shall be taken, you bring or cause him to be brought 
 before us or some other of her Majesty's justices of the peace of the 
 said coumiy, to fmd sufficient sureties : that is to say, two sureties in 
 
Indictment. 83 
 
 & each for Ms personal appearance at the iveaet session of the 
 
 peace to be holden for the said coimty, to answer as aforesaid, amd 
 fwrther to he dealt with according to law. Hereof you are not to 
 fail at yowr peril. Dated in open session, at the Sessions Souse, 
 
 Clerkenwell Green aforesaid, this day of , m the year of owr 
 
 Lord . C. D. ttTid E. F. 
 
 Warramt Jy judge of Queen^s Bench."} — By stat. 48 G. 3, c. 58, 
 s. 1, it is provided that any judge of the Queen's Bench, upon affidavit 
 or certificate of the fact that an indictment has been found, or infor- 
 mation filed in that court, against any person for a misdemeanor, may 
 issue his warrant for apprehending and holding him to bail ; and if 
 such defendant neglects or refuses to provide bail, he may commit 
 him to prison ; and after the termination of the assizes or sessions of 
 the peace, upon a certificate from the clerk of assize, or the clerk of 
 the peace {see form, ante, p. 80), a judge of the Queen's Bench, or a 
 justice of the county in which the indictment has been found, may, 
 by warrant under his hand, cause the party indicted to be arrested, 
 and, in default of bail, commit him for trial. 4 Bla. Com. 319. 
 [For form of warrants, see 8 Rep. Orim. L. 348.] 
 
 As to process on coroners' inquisitions, see Inquisition, post. 
 
 Outlamry.'] — Where an indictment, whether for felony or misde- 
 meanor, has been found by a grand jury against any person, whether 
 a peer or a commoner, and summary process proves ineffectual to the 
 apprehension of the defendant, process of outlawry is issued; — out- 
 lawry beimg a punishment inflicted upon an offender by the law for 
 contumacy, in refiising to render himself amenable to the justice of 
 the Queen's courts : Doct. & Stud. dial. 2, cap. 3 ; Bac. Air., Outlawry; 
 ComyTis' Dig., TJHagary ; 1 Chitty's Orim. L. 347 : it is an essential 
 part of the criminal law ; per Lord Mansfield, C. J., 4 Burr. 2662. 
 It lies not only in cases of treason and felony, but on all indictments 
 for forcible injuries, deceit, conspiracy or other offences more heinous 
 than a forcible trespass ; and the better opinion seems to be that it is 
 sustainable on an indictment for any crime whatever. 2 Hale, 194 ; 
 2 HawJc. c. 27, «. 113. An outlawry in treason or felony amounts to 
 a conviction and attainder of the offence charged in the indictment, as 
 much as if the offender had been found guilty by a jury; 4: Bla. Com. 
 319; 2 Hawk. c. 48, s. 22; but an outlawry, incase of a misdemeanor, 
 does not inure as a conviction for the offence, but merely as a con- 
 viction of the contempt for not answering; S. v. Tippen, 2 Salk. 494. 
 Process of outlawry may be awarded by justices of oyer and terminer, 
 and also by justices of the peace at quarter sessions on indictments 
 taken before them ; 3 Bum^s J., Process, 1339 (SOth ed.) ; Dick. Sess. 228 
 (6thed.); but the practice of proceeding to outlawry in courts of quarter 
 sessions seems to have become obsolete ; 8 JRep. Orim. L. 103 ; and 
 the usual course is to remove the indictment found at sessions by cer- 
 tiorairi, and proceed to outlawry in the Queen's Bench. The most 
 scrupulous exactness is required in all the proceedings in outlawry, 
 which may be set aside on writ of error for any informality. 1 Chitty's 
 Orim. L. 347. [See-WmT op Error, post, Ch. V.] The proceed- 
 ings in the case of treason or felony differ somewhat from those in 
 the case of misdemeanor, the former being more summary. In the 
 latter case, when an indictment has been found for a misdemeanor, 
 and the defendant does not appear, a writ of venire facias ad respon- 
 dendum, in the nature of a summons to appear, issues from the Queen's 
 
• 84 Indictment. 
 
 Bench, justices of oyer and tenniner, or justices of the peace in 
 quarter sessions, as the case may be. If the defendant fail to appear, 
 and the sheriff returns that he has summoned him, a distringas [see 
 
 form, ante, p. 79] is awarded, and is repeated by alias distringas from 
 time to time. If the sheriff return that the "defendant is not found, 
 a capias [see form, ante, p. 79] issues, and then an alias capias, and 
 after that apluries capias ; for in all cases of crimes not capital there 
 can be no outlawry before corvoiction without these three successive 
 writs. In cases of indictments for treason or felony, it is said that 
 one capias is sufficient ; but it is usual for three writs to issue in all 
 cases. If the defendant still elude the hands of justice, a writ of 
 
 ■ exigent is awarded, by which the sheriff is required to proclaim the 
 defendant, and call him five county-court days one after another, 
 charging him to appear upon pain of outlawry. By virtue of the 
 Stat. 4t (& 5 W. & M. c. 22, «. 4, upon the issuing of the exigent, in all 
 crimiaal cases, before judgment or conviction, a writ of proclamation 
 shall be issued, bearing the same date and return as the exigent, to 
 the sheriff of the county, of which the defendant is supposed to be 
 conversant by the indictment ; and this writ is to be delivered to the 
 sheriff three months before the return thereof. The sheriff having 
 duly obeyed these writs, and the defendant still not appearing, on the 
 fifth county-court day, judgment of outlawry is pronounced by one 
 of the coroners for the county. If the defenaant be a man, the judg- 
 ment is that he be " outlawed ;" if a woman, that she be " waived." 
 Upon the sheriff's return to the exigent that the defendant has been 
 exacted a fifth time, and outlawed, judgment may be signed in the 
 Crown Office, and, if necessary, a capias utlagatum may be issued. 
 [For the forms of the several writs, see 3 Burn's J., Process, 1341 
 (30<A ed.) ; 4 Chittn/'s Onm. L. 212 ; 2 Gude's Or. Prac. 164 ; Ham^s 
 Or. Prac. 421 ; Comer's Or. Prac. 241.] 
 
 As to reversal of outlawry, see Whit of Eekok, post, Ch. V. 
 Sect. 5. 
 
 Sect. ■9. 
 
 bail on indictments. 
 
 Nature cf hailT^ — Bail are sureties taken by a person duly a/utho- 
 rized, for the appearance of a defendant charged with an indictable 
 offence, at a certain day and place, to answer and be justified by law. 
 Hale's Su/m. 96 ; Dalt. c. 114. The defendant is placed in the custody 
 of his bail ; who may re-seize him if they have reason to suppose thjUt 
 he is about to fly, and bring him before a justice, who will commit the 
 prisoner in discharge of the bail. Id. Mainpernors, it seems, have 
 no such authority ; and another difference between bail and mainprise 
 is, that he that finds bail finds security only to answer some special 
 matter alleged against him ; but he that finds mainprise finds security 
 to appear, and answer not only in respect of the offence for which he 
 has been committed to prison, but touching all other matters and 
 causes that may be alleged against him. Coke's Treatise on Bail and 
 Mainp. To refuse or delay to bail any person bailable is an offence 
 against the liberty of the subject, in any magistrate, by the common 
 law. 4 Bla. Com. 29'/. It is also contrary to several statutes ; 
 Westm. \;ZEd. 1, c. 15 ; 31 Car. 2, c. 2 ; 1 Will. & M., stat. 2, c. 1; 
 the first recited of which acts provides, that " if any withhold pri- 
 soners replevisable after they have offered sufficient surety, he shall 
 
Indictment. 85 
 
 "pay a grievous amerciament to the king." But it has been held that 
 the duty of a magistrate in respect of admitting a prisoner to bail is 
 a judicial duty, and therefore that an action cannot be maintained 
 against him for refusing to admit to bail a person charged with a mis- 
 demeanor, entitled to be admitted to bail, without proof of malice. 
 LinfordY. Fitzroy, 13 Q.B. 240 ; 18 L. J. {M. C.) 108 : R. v. Badger, 
 4 Q. B. 468 ; 12 L. J. {M. C.) 66, aiui authorities there cited ; and 
 see Bac. Abr., Bail; Comyns' Dig. Bail, F. 5, K. 6 ; 3 Bos. & P. 
 651. If insufficient bail has been taken, or if the sureties become 
 afterwards insufficient, the accused may be ordered by any magis- 
 trate to find sufficient sureties, and in default may be committed to 
 prison ; and the justice who admitted a defendant to bail upon insuf- 
 ficient sureties is responsible if the defendant does not appear. Hale's 
 Sum. P. C. 97. If the defendant cannot immediately find sureties, 
 
 ' he shall be admitted to bail upon finding them at any time before 
 conviction. 1 Burr. 460. 
 
 Who Tuay he lail.l — The bail must be of ability sufficient to answer 
 for the sum in which they are bound ; 2 Eawlc. c. 15, s. 4 ; they are 
 usually householders ; but it is for the magistrate or judge to act upon 
 his discretion as to the sufficiency of the bail ; 1 Bum's J., Bail, 373 
 (30iA ed.);\ Chitty's Grim. L. 99 ; and the proposed bail may be exa- 
 mined upon oath as to his means, though in criminal cases no justifi- 
 cation of bail is requisite. R.v. Sall,2 W.Bla.lllO; Tidd's Prac.260; 
 1 Chitty's Orim.L. 100. And the court or magistrate may, at discretion, 
 order that reasonable notice shall be given to the prosecutor, to enable 
 him to object to the sufficiency of the bail. No person who has been 
 convicted of any crime by which he has become infamous is allowed 
 to be surety for any person charged or suspected of an indictable 
 offence. R. v. Edwards, 4 T. R. 440. Nor can a married woman, 
 or an infant, or a prisoner in custody, be bail. Personating bail is 
 declared to be felony, by 24 & 25 Vict. c. 98, s. 34 {post. Book II., 
 Part I., Chap. I., Sect. 9). 
 
 Persons who have become bail for any defendant may discharge 
 themselves by taking and sm-rendering him before the court or magis- 
 trate by whom he has been bailed, by whom the defendant wiU be 
 committed to prison ; but in such a case it is competent to such a 
 prisoner to find new sureties. 2 Hale, 124 ; 2 Hawk. c. 15, s. 3. 
 
 Form of recognizance of bail.'] — The following is the form of the 
 recognizance to be entered into by bail before a justice of the peace, 
 prescribed by 11 (6 12 Vict. c. 42 : — 
 
 Be it remembered, thai on the day of in the year of our 
 
 Lord , A. B. of [labourer] L. M. of [grocer], and 
 
 N. 0. of [butcher], ^«raona% came before [us] the midersigned, 
 
 two of her Majesty's justices of the peace for the said [county] and 
 severally acknowledged themselves to owe to our lady the Queen the 
 
 several sums following : (that is to say,) the said A. B. the sum of 
 
 and the said L. M. and N. 0. the sum of each, of good and lawful 
 
 money of Crreat Britain, to be made and levied of their several goods 
 cmd chattels, Icmds and tenements respectively, to the use of our said 
 lady the Queem,, her heirs and successors, if he the said A. B. fail in 
 the condition indorsed. Taken and acknowledged the day and year 
 
 first above mentioned, at , before us, J. S. 
 
 J.N. 
 
86 Indictment. 
 
 The condition of the within-written recognizance is such, that 
 whereas the said A. B. was this day cha/rged before [us], the justices 
 within mentioned, for that [etc. as in the warrant] ; if therefore the 
 said A. B. will appear at the next cowrt of oyer amd terminer and 
 general gaol delivery [or court of general qua/rter sessions of the 
 peace'] to he holden in and for the county of , and there surren- 
 der himself into the custody of the .keeper of the [common gaol] 
 there, mid plead to such indictment as may be fomd against him 
 by the grand jury for or in respect of the charge aforesaid, amd take 
 his trial upon the same, and not depart the said court without leome, 
 then the said recognisance to be void, or else to sta/nd in full force and 
 virtue. 
 
 Notice of the said recogniza/nce to be given to the accused and his 
 
 bail.'] — Take notice, that you A. B. of are boumd in the sum of 
 
 , and your sureties [L. M. and N. 0.1 in the sum of each, 
 
 that you A. B. appear [etc., as in the condition of the recognizance], 
 and not depart the said court without leave; amd unless you the said 
 A. B. personally appear and plead, and take yom/r trial accordingly, 
 the recognizance mtered into by you amd your sureties shall be forth- 
 with leoied on you amd on them. Dated this day of 
 
 187—. J. S. 
 
 But it seems that the condition of the recognizance, as respects the 
 sureties, is performed by the appearance of the' accused, though he 
 stand mute. Ba^. Abr., tit. Bail; 2 Hawh. c. 16, s. 84. 
 
 Mode of admitting to bail where the defendamt has been committed 
 to prison.]— In all cases where a person charged with any indictable 
 offence shall be committed to prison to take his trial for the same, it 
 shall be lawful, at any time afterwards and before the first day of the 
 sitting or session at which he is to be tried, or before the day to which 
 -such sitting or session may be adjourned, for the justice or justices 
 of the peace who shall have signed the warrant for his commitment, 
 in his or their discretion, to admit such accused person to bail in manner 
 aforesaid ; or if such committing justice or justices shall be of opinion 
 that for any of the offences hereinbefore mentioned, the said accused 
 person ought to be admitted to bail, he or they shall in such cases, 
 and in all other cases of misdemeanors, certify {see infra) on the back 
 of the warrant of commitment his or their consent to such accused 
 party being bailed, stating also the amount of bail which ought to be 
 required, it shall be lawiul for any justice of , the peace, attending or 
 being at the gaol or prison where such accused party shall be in 
 custody, on production of such certificate to admit such accused person 
 to bail in manner aforesaid ; or if it shall be inconvenient for the surety 
 or sureties in such a case to attend at such gaol or prison to join with 
 such accused person in the recognizance of bail, then such committing 
 justice or justices may make a duplicate of such certificate {see infra) 
 as aforesaid, and upon the same being produced to any justice of the 
 peace for the same county, riding, division, liberty, city, borough, or 
 place, it shall be lawful for such last-mentioned justice to take the 
 recognizance of the surety or sureties in conformity with such certifi- 
 cate, and upon such recognizance being transmitted to the keeper of 
 such gaol or prison, and produced, together with the certificate on the 
 warrant of commitment as aforesaid, to any justice of the peace 
 attending or being at such gaol or prison, it shall be lawful for such 
 
Indictment 87 
 
 last-mentioned justice thereupon to take the recognizance of such 
 accused party, and to order him to be discharged out of custody as to 
 that commitment as hereinafter mentioned. 11 <& 12 Vict. e. 42, 
 s. 23. As to cases where the indictment is removed for trial at the 
 Central Criminal Court, under 19 <& 20 Vict. c. 16, see the 9th section 
 of that act. 
 
 Certificate of consent to hail hy the committing justice indorsed on 
 the commitment.'] — I hereby certify, that 1 consent to the within-^rtamed 
 
 A. B. being bailed by recogndzance, himself in amd [two] swreties 
 
 in each. 3. S. 
 
 The like, on a separate paper.l — Whereas A. B. was on the 
 
 committed by me to the [house of correction] at charged with 
 
 [etc., naming the offence shortly] : I hereby certify, that I consent to 
 
 the said A. B. being bailed by recognizance, himself in and [two] 
 
 sureties in each. Dated the day of , 187 — . 
 
 Recognizance to be tramsmitted to committing justices.']— And. in 
 all cases where such accused person in custody shall be admitted to 
 bail by a justice of the peace other than the committing justice or 
 justices as aforesaid, such justice of the peace so admitting him to 
 bail shall forthwith transmit the recognizance or recognizances of bail 
 to the committing justice or justices, or one of them, to be by him or 
 them transmitted, with the examinations, to the proper officer. 11 c6 
 12 Vict. c. 42, s. 23. 
 
 Warrant of delicerance where a person in prison is bailed.] — 
 Where a justice or justices of the peace shall admit to bail any person 
 who shall then be in prison, charged with the offence for which he 
 shall be so admitted to bail, such justice or justices shall send or cause 
 to be lodged with the keeper of such prison a warrant of deliverance 
 under his or their hand and seal, or hands and seals, requiring the said 
 keeper to discharge the person so admitted to bail, if he be detained for 
 no other offence, and upon such warrant of deliverance being delivered 
 or lodged with such keeper he shall forthwith obey the same. 11 S 
 12 Vict. c. 42, s. 24. 
 
 Form of wa/rrant of deliverance on bail being given for a prisoner 
 already committed.] — To the keeper of the [house of correction] at 
 
 in the said [county] of . Whereas A. B., late of 
 
 [labourer], hath before [us, two] of her Majesty's justices of the 
 peace in amd for the said county, emtered into his own recognizance 
 and fonimd sufficient sureties for his appeairamee at, the next court of 
 oyer amd terminer and general gaol delivery [or court of general 
 quarter sessions of the pectce] , to be holden in and for the county of 
 
 , to answer owr sovereign lady the Queen, for that [etc. as in the 
 
 commitment], for which he was taken amd committed to your said 
 [house of correction] : These are therefore to commamd you, in her 
 said Majesty's name, that if the said A. B. do remain in your custody 
 in the said [house of correction] for the said cause, and for no oilier, 
 you shall forthwith suffer him to go at large. Given under our hands 
 
 and seals this day of , im, the year of our Lord , at 
 
 , in the [county] aforesaid. 3. S. (l.s.) 
 
 J.N. (L.S.) 
 
88 indictment. 
 
 Cases in which a justice of the peace may at his discretion admit to 
 bail.] — Where any person shall appear or be brought before a justice 
 of the peace charged with any felony, or with any assault with intent 
 to commit any felony, or with any attempt to commit any felony, or 
 with obtaining or attempting to obtain property by false pretences, or 
 with a misdemeanor in receiving property stolen or obtained by false 
 pretences, or with peijury or subornation of perjury, or with conceal- 
 ing the birth of a child by secret burying or otherwise, or with wilful 
 or indecent exposure of the person, or with riot, or with assault in pur- 
 suance of a conspiracy to raise wages, or assault upon a peace officer 
 in the execution of his duty, or upon any person acting in his aid, or 
 with neglect or breach of duty as a peace officer, or with any misde- 
 meanor for the prosecution of which the costs may be allowed out of 
 the county rate, such justice of the peace may, in his discretion, admit 
 such person to bail, upon his procuring and producing such surety or 
 sureties as in the opinion of such justice will be sufficient to ensure the 
 appearance of such accused person at the time and place when and 
 where he is to be tried for such offence ; and thereupon such justice 
 shall take the recognizance (see supra) of the said accused person and 
 his surety or sureties, conditioned for the appearance of such accused 
 person at the time and place of trial, and that he will then surrender 
 and take his trial, and not depart the court without leave. 11 S 12 
 Vict. c. 42, s. 23; and see 1 Chitty's Grim. £. 95 ; 4 Bla. Com. 298 ; 
 and per Lord Denman, Linford v. Fitzroy, 13 Q. B. 240 : 18 L. J. 
 (M. C.) 108. 
 
 Cases where it is imperative upon the justice to admit to JaiZ.] — 
 Where any person shall be charged before any justice of the peace 
 with any indictable misdemeanor other than those hereinbefore men- 
 tioned, such justice, after taking the examinations in writing as afore- 
 said, instead of committing him to prison for such offence, shall admit 
 him to hail in manner aforesaid, or if he have been committed to prison 
 and shall apply to any one of the visiting justices of such prison or to 
 any other justice of the peace for the same county, riding, division, 
 liberty, city, borough, or place, before the first day of the sitting or 
 session at which he is to be tried, or before the day to which such • 
 sitting or session may be adjourned, to be admitted to bail, such jus- 
 tice shall accordingly admit him to bail in manner aforesaid. 11 & 
 12 Vict c. 42, s. 23 ; and see 3 Edw. 1, c. 15 ; 2 HaU, 127 ; 4 Bla. 
 Com. 298 ; Bum's J., Bail ; 1 Chitty's Crim. L. 97 ; and remarks cf 
 Lord Denman, Linford v. Fitoroy, supra. 
 
 Bail in cases of treason."] — No justice or justices of the peace shall 
 admit any person to bail for treason, nor shall such person be admitted 
 to bail, except by order of one of her Majesty's secretaries of state, or 
 by her Majesty's court of Queen's Bench at Westminster, or a judge 
 thereof in vacation. 11 c6 12 Vict. c. 42, s. 23. 
 
 Bail hy Queen's Bench.] — The court of Queen's Bench, which has 
 a higher power than any other court, Hale's Sum. 104, or in time of 
 vacation a judge thereof, 1 <£ 2 Vict. c. 45, has a discretionary power 
 of admitting to bail any prisoner charged with treason, felony, or 
 misdemeanor, or on suspicion thereof, brought before such court or 
 judge by virtue of a writ of habeas corpus, or otherwise according to 
 the course of that court ; 1 Chitty's Crim. i. 98; 1 Bum's J., tit. Bail, 
 369, 370 {30th ed.) (See S. v. Barronet, I E. d B. 1; Dears. 61; 
 
Indictment. 89 
 
 and R. v. Barthelmy, 1 E. d B. 8; Dears. 60, as to the principle 
 on which bail is granted or refused in cases of murder and other 
 capital offences.) And that court, or in vacation a judge thereof, 
 has also a discretionaiy power of directing a prisoner to be admitted to 
 bail before a magistrate, where it would be inconvenient to bring the 
 prisoner and his bail before the court or judge in town ; or, on just 
 cause being shown, to order that a party not in custody shall be ad- 
 mitted to bail on surrendering to a warrant. The application must 
 be made upon affidavits entitled " In the Queen's Bench," verifying 
 copies of the depositions ; B. v. Barthelmy, \ E. <S> B. % ; Dears. 60. 
 {See forms of affidavits, 2 Burtis J., Habeas Corpus, 947 {SOth ed.); 
 4 Chitty's Oram. L. 121.] The affidavits should be accompanied by 
 a certified copy of the commitment. Where there is no inconvenience 
 in the appearance of the prisoner and his bail in the court, counsel 
 moves for a writ of habeas corpus ad subjiciendum, and also for a writ 
 of certiorari, directed to the magistrate or coroner, as the case may be, 
 to bring the depositions on which the prisoner has been committed 
 before the court. Forty-eight hours' notice of bail, in cases of murder 
 or manslaughter, must be served on the widow, if any there be, or 
 next of kin of the deceased, and in other cases upon the prosecutor, 
 and also on the coroner, or committing magistrate. Returns having 
 been duly made to the writs, when the prisoner is brought into com-t 
 counsel moves that he be admitted to bail, and if there be no oppo- 
 sition the court wiU in its discretion admit the prisoner to bail, and the 
 officer of the court will take the recognizance. It may be necessary 
 to say, that in eases of felony the court usually requires four siyeties ; 
 but for inferior offences two are sufficient. B,. v. Shaw, 6 Dow. & Ry. 
 154. The motion to admit the prisoner to bail may be opposed by 
 counsel, and affidavits may be used in answer to the application. 
 When a prisoner is brought up to be bailed at chambers, the proceed- 
 ings are nearly the same as those in court. Comer's Cr. Prac. 47. 
 In country cases, to avoid the expense and inconvenience of bringing 
 the parties to town, the practice is to apply for a rule to show cause 
 why the prisoner should not be admitted to bail before a justice in the 
 county where the prisoner is in custody, and at the same time to apply 
 for a certiorari. Notice is given in the same way as when a writ of 
 habeas corpus is applied for ; and the rule may be opposed as in the 
 former case. If the rule be made absolute, upon its being produced 
 to a magistrate, he will admit the prisoner to bail. As to bail on the 
 removal of indictments, see post, p. 98. As to bail after the verdict 
 of a coroner's jury, see post, Ch. III. 
 
 Estreat of recognisance.'] — If the condition . of a recognizance, 
 entered into either by a party or his bail, be broken, the recogni- 
 zance is forfeited, and, on its being estreated, the parties become 
 debtors to the crown for the sums in which they are respectively 
 bound. The word estreat (extracturri) signifies a true note of an 
 original writing, as estreats of amerciaments imposed in the rolls of a 
 court, from which they were extracted iov estreated), and it is so used 
 in Westm. c. 2 : Termes de la Ley. The practice of parliament, the 
 superior courts, and the courts of assize, respecting the estreating of 
 recognizances, is now governed by 3 cfe 4 TF^. 4, c. 99, which repeals 
 22 & 23 Car. 2, c. 22. By sect. 29 it is provided, that an account in 
 writing of aU recognizances imposed or forfeited for the use of the 
 crown, by or before any judge or judges of assize throughout England, 
 shall within fourteen days next after such recognizances, etc. are for- 
 
90 Indictment. 
 
 feited, be made out by the clerk of the assize, with the nearest resi- 
 dence of the parties liable to make payment thereof, and he shall 
 make out two copies, one to be sent to the commissioners of her 
 Majesty's treasury, and the other to the commissioners for auditing 
 the public accounts, and such recognizances shall, within the time 
 specified, be duly certified and estreated by such officers and persons 
 respectively in and into the court of Exchequer. The court of Exche- 
 quer, under a writ of privy seal, has power over penalties and for- 
 feitures occurring at assizes, and can compound, or, in its discretion, 
 discharge any recognizances. M. v. Hawkins, JiPCl. & T. 'il : Re 
 Pellew, M^Cl. 111. But the court of Exchequer has now no jurisdic- 
 tion over recognizances forfeited either before justices out of sessions 
 or at sessions. R. v. TorhaMre (Justices), 7 A. & E. 583 ; t L. J. 
 {M. C.) 9: R.V. Thompson, 3 Tyr. 53 ; 3 ff . 4, c. 46. And by 7 G. 4, 
 c. 64, s. 31, in every case where any person bound by recognizance for 
 his appearance, or for whose appearance any other person shall be 
 bound, to prosecute or give evidence in any case of felony or misde- 
 meanor, or to answer for any common assault, or to articles of the 
 peace, or to abide an order in bastardy, shall therein make default, the 
 officer of the court by whom the estreats are made out shall prepare 
 a list in writing specifying the name, residence, and calling of every 
 person so bound, and the nature of the offijnce ; and such officer, before 
 such recognizance shall be estreated, shall lay such list before the 
 judge, and if at a session of the peace, before the chairman, or two 
 other justices who shall attend such court, who are respectively autho- 
 rized and required to examine the list, and to make such order touching 
 the estreating thereof as shall appear to be just ; and no officer of any 
 court shall estreat or put in process any such recognizance without 
 the written order of the justice before whom such list shall have been 
 laid. Sect. 2 of the stat. 3 G. 4, c. 46, directs that the clerk of the 
 peace or town clerk [all duties imposed upon town clerics by this 
 statute are to be performed by the clerks of the peace, 20 S 21 Vict, 
 e. 50, s. 5] shall copy on a roll such forfeited recognizances, and 
 shall, within such time as shall be fixed by the court of quarter 
 sessions, not exceeding twenty-one days from the adjournment of 
 such court, send a copy of such roll, with a writ of distringas and 
 capias [see forms, ante, p. 79], or a writ of fieri facias and' capias, 
 to the sheriff of such county, which shall be the authority to him for 
 proceeding to the immediate levying and recovering of such forfeited 
 recognizances. Where the condition of a recognizance is that a 
 party shall keep the peace, the recognizance cannot be estreated by 
 the sessions without issuing a scire facias, to which the party may 
 plead. Re Dr. Thornton, 1 A. & E. 583 ; 1 L. J. (M. C.) 9 : iJ. v. 
 Cousins, Parker, 54 : and see B. v. Dale, 5 Cox, 171 : and Foster on 
 Scire Facias, 283, 298. 
 
 As to the estreat of recognizances to proceed to the trial of issues 
 on indictments or informations filed in the court of Queen's Bench, 
 see 16 & 17 Vict. c. 32, s. 8. 
 
 —* — 
 
 Sect. 10. 
 
 indictmknt, in what cases quashed. 
 
 Inwhatccbses.'\ — Where an indictment is so defective on the face of 
 
 it that no judgment can be given upon it, even should the defendant 
 
 be convicted, the court, on application, will in general quash it. 
 
 Thus, for instance, they have quashed an indictment for perjury or 
 
Indictment. 91 
 
 forgery found at sessions, because the sessions have no jurisdiction 
 of perjury or forgery; R. v. Bainton, 2 Str. 1088: see B. v. Hewitt, 
 R. & R. 158 : R. v. Rigby, S C. <& P. 770 ; and an indictment against 
 six for exercising a trade, because it was a distinct offence in each, 
 and could not therefore be made the subject of ajoin't prosecution; 
 R. V. Tucker, 4 Burr. 2046 : R. v. Weston, 1 Str. 623 ; and see R. v. 
 Phillips, Id. 921 ; and there are several instances where indictments 
 have been quashed, because the facts stated in them did not amount 
 to an offence punishable by law ; see R. v. Bvirkett, Andr. 230 : R. v. 
 Sermon, 1 Burr. 516, 643 : R. v. Philpotts, 1 C. & K. 112 ; as, for in- 
 stance, an indictment for contemptuous words spoken to a justice of 
 peace, not stating that they were spoken to him whilst in the execu- 
 tion of his office. R. Y. Leaf e, Andr. i2^. So, the judge may in his 
 discretion quash the indictment where the defendant is charged with 
 different felonies in different counts {ante, pp. 69, 70), or with several 
 offences in the same count. {Ante, p. 64.) 
 
 Where the application is made upon the part of the defendant, the 
 court have almost uniformly refused to quash an indictment, where it 
 appeared to be for some enormous crime, such as treason or felony, 
 Com. Dig. Indietmefnt {3.} : and see R. v Johnson, 1 Wils. 325, for- 
 gery, perjury, or subornation. R. v. BeUon, 1 Salk. 372 ; 1 Sid. 64 ; 
 
 1 Vent. 370 : R. v. Thomas, 3 D. <& R. 621 : R. v. Burnh/, 13 L. J. 
 {M. C.) 29. They have also refused to quash indictments for cheat- 
 ing, -ffi. V. OrheU, 6 Mod. 42, for selling flour by false weights, R. v. 
 Orooks, 3 Burr. 1141, for extortion, R. v. Wadsworth, 5 Mod. 13, for 
 not executing a magistrate's warrant, B. v. Bailey, 2 Str. 1211, against 
 overseers for not paying, money over to their successors, R. v. King, 
 
 2 Str. 1268, and the like. The court also will not quash indictments 
 for not repairing highways or bridges, or for other public nuisances, 
 R. V. Belton, 1 Salk. 372; 1 Vent. 370: R. v. Bishop, Andr. 220, 
 unless there be a certificate that the nuisance is removed; R. v. 
 Ley ton, Oro. Car. 684 : R. v. Wigg, 2 Salk. 463 ; nor will they quash 
 an indictment for a forcible entry, R. v. Dyer, 6 Mod. 96, unless, per- 
 haps, where the possession has been afterwards given up. Also, 
 where the alleged defect was that the indictment did not conclude 
 contra formam statuti, the court refused to quash it. R. v. Brother- 
 ton, 1 Str. 702. See Com. Dig. Indictment, (jff.) ; 3 Bac. Abr. 116. 
 But when it i^ made clear, either on the face of an indictment or by 
 affidavit, that it has been found without jurisdiction, the court will 
 quash it on motion by the defendant after plea pleaded ; although in 
 a doubtM case they will leave him to his writ of error. B. v. Heane, 
 4:B.<S:S. 947 ; 33 L. J. (M. C.) 115. 
 
 If the application be made on the part of the prosecution, the 
 court will quash the indictment in all cases where it appears to be so 
 defective that the defendant cannot be convicted on it, and where 
 the prosecution appears to be bona fide, and not instituted from mali- 
 cious motives, or for the purposes of oppression. If the prosecution 
 be instituted by the attorney-general, an application to quash the 
 indictment is never made upon the part of the prosecutor, because 
 he may himself enter a nolle prosequi, which will have the same 
 effect (see post. Sect. 12). B. v. Stratum, 1 Doug. 239, 240. 
 
 Where two indictments against the same defendant, one for felony 
 and the other for misdemeanor, had been removed into the court of 
 Queen's Bench by certiorari, the court refused to quash them on an 
 affidavit that they both related to the same transaction. B. v. 
 Stockley, 3 Q. B. 238 ; 2 ff. (6 Z). 728 ; 11 £. J. {M. C) 105. 
 
92 Indictment. 
 
 Mow.'] — The application to quash an indictment is made to the 
 court where the bill is found; except in cases of indictments at 
 sessions or in other inferior courts, in which cases the application 
 has usually been made to the court of Queen's Bench, the record 
 being previously removed there by certiorari. It has now been de- 
 cided, however, that the court of quarter sessions has itself autho- 
 rity to quash an indictment found there, before plea pleaded. R. v. 
 WiUon, 6 Q. B. 620 ; 14 L. J. (M. C.) 3. 
 
 Where the objection fully appears upon the record, no advantage 
 can be taken of it at Nisi Prius. R. v. Souter, 2 Starlc. N. P. C. 
 423. 
 
 It was formerly held that the application, if made upon the part of 
 the defendant, must in all cases be made before plea pleaded ; Fast. 
 231 : R. V. Rookioood, Holt, 684 ; 4 St. Tr. 677 ; but it has been 
 recently decided that where it is clear that an indictment has been 
 found without jurisdiction, the court will quash it on motion by the 
 defendant after plea pleaded. R. v. Heane, A B. & S. 947 ; 33 L. J. 
 (M. C.) 115. Where the indictment had already, upon the applica- 
 tion of the defendant, been removed into the court of King's Bench 
 by certiorari, the court refused to entertain a motion by the defendant 
 to quash the indictment after a forfeiture of his recognizance by not 
 having carried the record down for trial. Anon. 1 Balk. 380. A 
 motion to quash the indictment for any formal defect apparent on 
 the face of it must be made before the jury are sworn, and upon its 
 being made the court may amend the indictment, and proceed with 
 the trial : 14 cfc 15 Vict. c. 100, i. 25. If the application to quash be 
 made upon the part of the prosecution, it should seem that it may be 
 made at any time before the defendant has been actually tried upon 
 the indictment. See R. v. Webh, 3 Burr. 1468. But after judgment 
 for the prisoner on demurrer, the indictment cannot be quashed at 
 the instance of the prosecutor. R. v. W. Smith, 2 M. & Rob. 109. 
 Where the application is made to the court of Queen's Bench, there 
 is no objection to its being moved on the last day of the term ; 1 
 Burr. 651 ; and the rule is absolute in the first instance, the defend- 
 ant not having pleaded. R. v. Stowell, 1 Dowl. N. S. 320. 
 
 Before an application of this kind is made on the part of the pro- 
 secution, a new bill for the same ofiFence must have been preferred 
 against the defendant and found. R. v. Wynn, 2 East, 226. And 
 when the court, upon such an application, orders the former indict- 
 ment to be quashed, it is usually upon terms, namely, that the prose- 
 cutor shall pay to the defendant such costs as he may have incurred 
 by reason of such former indictment ; R. v. Wehh, 3 Burr. 1468 : see 
 R. v. Dunn, \ C. & K. 730 ; that the second indictment shall stand 
 in the same plight and condition to all intents and purposes that the 
 first would have done if it were not quashed ; R. v. Glenn, ZB.&Ald. 
 373: -B. v. T^eftft, 3 Bwrr. 1468; 1 W. Bla.UO; and (particularly 
 where there has been any vexatious delay upon the part of the pro- 
 secutor, 3 Burr. 1468 ; 1 W. Bla. 460) that the name of the prosecutor 
 be disclosed. R. v. Glem, B B. & Aid. 373. 
 
Indictment, 93 
 
 Sect. 11. 
 
 indictment when and "where tried ; and herein of the 
 removal op indictments by certiorari. 
 
 When.'] — Indictments for felonies are tried at the same assizes or 
 sessions at which they are preferred to and found by the grand jury. 
 They may, however, be postponed to the next assizes or sessions 
 at the instance of the prosecutor or the defendant, showing to the 
 court by afiidavit a sufficient cause for the delay, such as the un- 
 avoidable absence or illness of a necessary and material witness, the 
 existence of a prejudice in the jury, and the like. See R. v. Cheua- 
 lier D'Eon, 2 Burr. 1614 : B. v. Joliffe, 4 T. R. 285 : R. v. Morphmu, 
 2 M. & Sel. 602 : R. v. Hunter, ?, C. & P. 591 : R. v. Streeh, 2 C. d 
 P. 413 : R. V. Stevenson, 2 Leach, 546 : R. v. Chapman, 8 C. d: P. 
 558 : R. V. Owen, 9 C ^ P. 83 : R. v. Bolam, 2 M. & Sob. 192 : B. v. 
 Macarthy, C. d Mar. 625 : R. v. Savage, 1 C.dK.75: R. v. Mobbs, 
 2F.dF.18: R. v. Lawrence, i F. d P. 901 : R. v. Langhurst, 10 
 Cox, 353 : R. v. Taylor, 11 Cox, 340. Where the defendant was in- 
 dicted for having carnal knowledge of a girl under ten years old, an 
 application by the prosecution for the postponement of the trial, with 
 a view to the instruction of the girl, was refused. R. v. Nicholas, 
 2 C.d K. 246. It seems the trial may be postponed, on the defend- 
 ant's application, after the jury have been charged with the indictment, 
 and before any evidence has been given in the case. R. v. Fitzgerald, 
 1 C. d K. 201. Where the application is made by the defendant, he 
 will be remanded and detained in custody until the next assizes or 
 sessions ; but where the application is made by the prosecutor, it is 
 in the discretion of the com-t either to detain the defendant in cus- 
 tody, or admit him to bail, or to discharge him on his own recog- 
 nizances. R. V. Beardmore, 7 C. d P. 497 : R. v. Parish, Id. 782 : 
 R. V. Osborn, Id. 799 : R. v. Bridgman, C. d Mar. 271. After a bill 
 has been found, if the offence be of a serious nature, the court will not 
 admit the prisoner to bail. R. v. Chapman, 8 C. d P. 558 : R. v. 
 Guttridge, 9 C. d P. 228 : R. v. Owen, Id. 83 : R. v. Bowen, Id. 509. 
 In R. V. Palmer, 6 C. d P. 652, the judges of the Central Criminal 
 Court postponed until the next session the presentment of a bill 
 for a capital offence to the grand jury, upon the ground of the illness 
 of a witness sworn to be material, and refused to examine her depo- 
 sition to ascertain whether she deposed to material facts. 
 
 Indictments for misdemeanors, where the defendant was not ac- 
 tually in custody, were not formerly tried at the assizes or sessions in 
 which the defendant pleaded to or traversed the indictment ; but the 
 practice was to require the defendant to enter into recognizances to 
 appear at the next assizes or sessions, then to try the traverse, giving 
 notice to the prosecutor according to the practice of the particular 
 court in which the indictment might happen to be. 4 Bla. Com. 351. 
 Now, however, by the 14: d 15 Vict. c. 100, s. 27, no person prosecuted 
 shall be entitled to traverse or postpone the trial of any indictment 
 found against him at any session of the peace, session of oyer and 
 terminer, or session of gaol delivery : provided always, that if the 
 court, upon the application of the person so indicted or otherwise, 
 shall be of opinion that he ought to be allowed a further time, either 
 to prepare for his defence or otherwise, such court may adjourn the 
 trial of such person to the next subsequent session, upon such terms 
 as to bail or otherwise as to such court shall seem meet, and may 
 respite the recognizances of the prosecutor and witnesses accord- 
 
94 Indictment. 
 
 ingly, in which case the prosecutor and witnesses shall be bound to 
 attend to prosecute and give evidence at such subsequent session 
 without entering into any fresh recognizance for that purpose. 
 
 Where.'] — Indictments for felonies and misdemeanors are tried 
 within the jurisdiction in which the oiFenceis committed, or in which 
 by statute the venue may be laid, (see ante, p. 25, et seq.) and before 
 the court in which the indictment is preferred. This is the general 
 rule ; but there are particular cases in which it does not prevail, 
 and which it may be useful here to mention. 
 
 Indictments found at the sessions and transmitted by the justices 
 to the assizes, must be tried at the assizes, although they be not 
 moved by certiorari. JR. v. Wetherell, JR. <& JR. 381. The court of 
 Queen's Bench has jurisdiction to change the place of trial in felonies 
 and misdemeanors, whenever it is necessary for the purpose of secur- 
 ing, as far as possible, a fair and impartial trial. Peir Lord Dernnom, 
 C. J., b B. & Ad. 354. For this purpose a writ of certiorari must 
 issue to remove the indictment into the court of Queen's Bench (un- 
 less the court or a judge think fit to direct the trial to be had at the 
 Central Criminal Court, under the stat. 19 & 20 Vict. c. 16,post,p. 101). 
 We proceed, therefore, to consider the effect of the writ of certiorari, 
 and the practice relating to it. 
 
 Writ of ceHiorajri — Effect of vmt.'] — The writ of certiorari is an 
 original writ, issuing sometimes out of the common-law jurisdiction of 
 Chancery, and sometimes out of the Queen's Bench, when the crown 
 would be certified of any record in any other court of record. Fitg. 
 N. B. 245, a. It is directed in the Queen's name to the judges or 
 officers of inferior courts, requiring them to return the records of a 
 certain indictment or inquisition depending before them, in order that 
 the party may have the benefit of a trial in the Queen's Bench, or 
 before such justices as her Majesty shall assign to hear and deter- 
 mine the cause. For the removal of indictments into the court of 
 Queen's Bench the writ is, at this day, invariably sued out of the 
 Queen's Bench and issued from the crown office ; that court having 
 a general superintendence over all other courts of criminal juris- 
 diction, whether ancient or newly created, 2 Hawh. c. 27, s. 22, and 
 being the sovereign ordinary court of justice in causes criminal. 
 4 Bla. Com. 320. This writ is frequently used in order the better to 
 consider and determine the validity of indictments and proceedings 
 thereon, and to prevent a partial and insufficient trial, which it is 
 apprehended would take place in the original jurisdiction. 1 Chit. 
 Crim. L. 371 ; 2 JSah, 210. The effect of the writ is to remove all 
 proceedings such as are described therein, which have taken place 
 between the teste and return, although they may have been commenced 
 after the teste. R. v. Battams, 1 East, 298 ; 2 EJamh. c. 27, s. 73 ; 60 
 G. 3, c. 4, s. 4. But the writ is of no effect unless it is delivered before 
 the time for its return has expired. Where a certiorari issued to 
 remove an indictment into the court of Queen's Bench, at common 
 law, after the general issue pleaded, there would be a trial at bar by 
 a jury of the county in which the indictment was preferred. But a 
 writ of Nisi Prius usually issues, by the attorney-general's consent, 
 2 Inst. 424, to the proper county in which" the indictment was found, 
 unless the venire be awarded to a foreign county updtf suggestion by 
 order of the court. And by the stat. 9 <§ 10 Vict. c. 'iA, s. 3, it is 
 provided that every writ of certiorari for removing an indictment 
 
Indictment. 95 
 
 from the Central Criminal Court shall specify the county or juris- 
 diction in -which the same shall be tried; and a jury shall be sum- 
 moned, and the trial proceed, in the same manner in all respects as 
 if the indictment had been originally preferred in that county or 
 jurisdiction. 
 
 Form 0/ the writ.'] —The following is the form of the writ of cer- 
 tiorari addressed to the justices of quarter sessions : — 
 
 Victoria, hy the grace of God of the United Kingdom of Great 
 Britain and Ireland Queen, defender of the faith, etc., to the keepers 
 of mi/r peace and to our justices assigned to hear omd determine divers 
 felonies, trespasses, and other misdemeanors committed within our 
 county of D., and to every one of them, greeting : We, being willing for 
 certain reasons that all arid singular indictments of whatsoever trespasses, 
 contempts, and assaults whereof W. E. is indicted before you (as it is 
 said) be determined before us amd not elsewhere, do command you amd 
 every of you that you or one of you do send under your seals, or the seal of 
 one of you, before us at Westminster immediately after the receipt of this 
 our writ, all and singular the said indictments, with all things touching the 
 same, by whatsoever name the said W. E. is called in the same, together 
 with this our writ, that we niay further cause to be done therein what of 
 right and according to the custom of England we shall see fit to be 
 done. Witness Sir Alexander James Edmund Cockbum, Ba/rt., at 
 Westminster, this 19th day of April, in the twenty-fifth year of owr 
 reign. By the Court. 
 
 At the instamce of the prosecutor [or defendant]. By rule of Court. 
 
 [For other forms of the writ, see 4 Chit. Grim. L. 247 ; 2 Crude's 
 Or. Prac. 187. For form of the writ of certiorari issuing out of 
 Chancery, see Abbott's Betty Bag Off. F. 17.] 
 
 In what cases granted.'] — The writ of certiorari is demandable as of 
 right by the crown, R. v. Eaton, 2 T. R. 89, and issues as of course 
 where the attorney-general or other officer of the crown applies for 
 it, either as prosecutor or as conducting the defence on behalf of the 
 crown ; lb.; R. v. Leviis, 4 Bwrr. 2468 ; and this, even though the 
 certiorari be expressly taken away by statute ; for, unless named, thej 
 crown is hot bound by statute. By analogy to this rule, the certiorari 
 was formerly granted almost of course to private prosecutors, who were 
 said to represent the crown, at whose suit all indictments are instituted. 
 But now, by stat. 5 <fc 6 W. 4, c. 33, no writ of certiorari can issue 
 from the court of Queen's Bench at the instance of any prosecutor or 
 other person (except the attorney-general) without motion first made 
 in court, or to a judge at chambers, and leave obtained, in the same 
 manner as if the application were made by the defendant. It is, 
 therefore, in the discretion of the court to grant or refuse the certiorari 
 at the prayer of either party. 2 Hawk. c. 27, s. 27. And by 16 & 
 17 Vict. c. 30, s. 4, after reciting that, by reason of the establishment 
 of a court of criminal appeal, the removal of indictments by writ of 
 certiorari is seldom necessary for the decision of questions of law, but 
 is nevertheless sometimes resorted to for purposes of expense and 
 delay, it is enacted, that no indictment, except indictments against 
 bodies corporate not authorized to appear by attorney in the court in 
 which the indictment is prefeiTed, shall be removed into the court of 
 Queen's Bench, or into the Central Criminal Court, by writ of cer- 
 
96 Indictment. 
 
 tiorari, either at the instance of the prosecutor or of the defendant 
 (other than the attorney-general acting on behalf of the crown), un- 
 less it be made to appear to the court from which the writ is to issue, 
 by the party applying for the same, that a fair and impartial trial of 
 the case cannot be had in the court below, or that some question of 
 law of more than usual difficulty and importance is likely to arise 
 upon the trial, or that a view of the premises in respect whereof any 
 indictment is preferred, or a special jury, may be required for the 
 satisfactory trial of the same. 
 
 The difficult points of law likely to arise must be specifically pointed 
 out, in order to induce the court to grant a certiorari. R. v. Jowh, 
 bA.&E. 639 : R. v. Josephs, 8 Dawl. 128. If it be clearly made 
 out that there is a fair and reasonable probability of partiality and 
 prejudice in the jurisdiction within which the indictment would other- 
 wise be tried, the certiorari will be granted. R. v. Lewis, 1 Str. 704 : 
 R. V. Fowle, 2 Ld. Raym. 1452 : R. v. Waddington, 1 East, 167 : R. 
 V. Penprase, 4: B. <& Ad. 673 ; 1 Nev. & M. 312 : R. v. Runt, ^ B. & 
 Aid. 444 : R. v. Holden, 6 B. & Ad. 347 ; 2 Nev. & M. 167 : R. v. 
 Lever, 1 Wil, Wol. & Hod. 35: R. v. Palmer, 5 E. & B. 1024. 
 As where a member of the court of magistrates was interested in 
 the result of the trial ; R. v. Jones, 2 Har. & W. 293 ; and where a 
 magistrate, in the commission for the county, was indicted at the 
 quarter sessions and circulated among the other magistrates a printed 
 account of the charges. R. v. Graver, 8 DowL 325. So, if the pro- 
 secutor or his attorney be sheriff or under-sheriff, R. v. Webb, 2 Sir. 
 1068 : R. V. KnatchbuU, 1 Salh. 160, the writ will be granted. Under 
 some circumstances the court will grant a certiorari for the removal 
 of an indictment for conspirapy, R. v. Willes, 5 E. d; B. 690 ; 25 
 L. J. (Q. B.) 47 : R. v. Rowlands, 2 Den. 364 ; 21 L. J. (M. C.) 81, 
 even where one of several defendants makes the application without 
 the consent of the others. R. v. Foulhes, 1 L., M. & P. 720 ; 20 L. J. 
 (M. C.) 196 : R. v. Probert, Dears. 30. In those cases the writ 
 was allowed on the application of one of several defendants, who was 
 a responsible person, he entering into a recognizance to pay costs in 
 case of the conviction of himself or of any of the other defendants. 
 
 In what cases refused."] — No indictment for not repairing bridges 
 and the highways at the end thereof, where the inhabitants of the 
 county are chargeable with the repair of the same, is removable by 
 certiorari out of the county where such bridges or highways lie 1 
 Anne, st. 1, c. 18, s. 6 : R. v. Inhabitants of Hamworth, 2 Str. 900 : 
 R. v. Inhabitants of Cumberland, 6 T. R. 194, affirmed in Dam. Proc, 
 3 Bos. (& P. 354. No indictment against any person for keeping a 
 bawdy-house, gaming-house, or other disorderly house is removable 
 by certiorari. 25 G. 2, c. 36, s. 10. If an indictment charging an 
 offence in which the certiorari is taken away by statute contains 
 counts charging an offence where it is not taken away, the writ may 
 still issue. R. v. Saunders, 5 Dow. <k Ry. 611. 
 
 Where an indictment for keeping a disorderly house had been 
 removed from the Middlesex Sessions to the Central Criminal Court, 
 under 4 c6 5 PF. 4, c. 36, the court granted a certiorari to remove the 
 indictment into the Queen's Bench at the instance of the defendant, 
 holding that where the indictment has been once removed by the 
 prosecutor, the 10th section of 25 G. 2, c. 36, taking away the writ 
 of certiorari, does not apply. R. v. Brier, 14 Q. B. 568 ; 19 L. J. 
 {M. C.) 121. 
 
Indictment. 97 
 
 The court will generally refuse a certiorari to remove an indict- 
 ment whether for misdemeanor or felony, after conviction and befoi-e 
 judgment ; R. v. Oxford, 13 Emt, 411 : iJ. v. Nichols, 13 East, 412, n. ; 
 or after judgment, for the purpose of quashing the indictment ; It. v. 
 Pemgoes, \ B. & C. 142 ; or where a defendant surreptitiously ob- 
 tained an acquittal by not giving notice of trial ; R. v. Ummn, 7 
 Dowl. 578 ; and the court quashed a certiorari which was issued 
 before, but not lodged until after, judgment on an indictment for 
 misdemeanor. R. v. Seton, 7 T. R. 373. [Seepost, Ch. F.] The court 
 wUl not, ordinarily, at the prayer of the defendant, grant a certiorari 
 for the removal of an indictment for perjiuy, forgery, or other hein- 
 ous misdemeanor, where the delay tends to defeat the prosecution, 
 2 Eawh. c. 27, s. 28 : R. v. Pusey, 2 Str. 717 ; or for mui-der, 
 R. V. Mead, i D. & R. 301 : R. v. Thomas, 4 M. & Set. 442 ; un- 
 natural crime, R. v. Solden, b B.& Ad. 347 ; 2 Neo. & M. 167, and 
 the Uke. See R. v. Penprase, 4 B. & Ad. 573 ; 1 Nev. & M. 312. 
 So the court will not, in general, except by the consent of the pro- 
 secutor, remove an indictment from a court of competent jurisdiction 
 where any of the judges preside. See R. v. Wartnahy, 2 A. <& E. 
 435 : R. V. Duchess of Kingston, Cowp. 283 : R. v. Templar, 1 Nenj. 
 & P. 91. The writ will not be granted to remove an indictment 
 from the Central Criminal Court on the ground that it is bad in point 
 of law. 
 
 Time when granted.'] — We have already seen that the writ may be 
 sued out, though at the time the indictment is not in esse ; ante, p. 94 ; 
 it is sufficient if the indictment be found at any period before the 
 writ is returnable. 60 G. 3, c. 4, s. 4. The proper time for either 
 party to apply for a certiorari is. before issue joined on the indict- 
 ment ; 1 Chit. Crim. L. 380 ; but the certiorari is not too late, if de- 
 livered before the juiy are sworn to try the case. 60 G. 3, c. 4. s. 3 ; 
 and see R. v. Passman, 2 Dowl. 529. There are instances of the 
 removal of indictments by certiorari between verdict and judgment, 
 but in general the court discoiurages such applications. 2 Hawh. 
 c. 27, s. 28 ; and see 1 Chit. Grim. L. 380 : R. v. Garside, 2 A. S E. 
 266 ; and svpra. 
 
 Mode of obtaining the joni.]— In all cases (except where the 
 attorney-general applies for the writ on behalf of the crown) the 
 application must be founded upon affidavit, suggesting some ade- 
 quate ground for removal. See ante, p. 95 ; and for forms of affidavits 
 on which applications for certiorari may he made, see 2 Gude^s Cr. Pr. 
 43, 65 ; 1 Bum's J. 661 (30<^ ed.) ; 4 Chit. Orim. L. 246. The affida- 
 vits may be sworn either in open court or before a judge at cham- 
 bers, or before a commissioner for taking affidavits. They must be 
 entitled "In the Queen's Bench" simply. See Nohro's case, 1 B. & 
 C. 267. By 5 (6 6 PT. 4, c. 33, s. 1, it is provided that no writ of 
 certiorari shall issue at the instance of the prosecutor without 
 motion first made in court or before some judge thereof, and leave 
 obtained, in the same maimer as where the application is made on 
 the part of the defendant. If in term time the motion must be made 
 by counsel in open court. 5 tfe 6 W.&M.c. 11, s. 2. In vacation 
 it may be granted by a judge, Id. s. 4, who indorses on the affidavit, 
 " Let a writ issue." 
 
 The application for the writ is an ex parte proceeding ; it is not 
 necessary that the prosecutor should have notice of it. In cases of 
 
 w. p 
 
98 Indictment. 
 
 misdemeanor, the rule is absolute in the first instance ; in felony, a 
 rule nisi is granted. iJ. v. Spencer, 8 Dowl. 127 : R. v. Chipping 
 Sodbury, 3 Nev. <& M. 104. "When absolute, the rule is drawn up at 
 the crown ofiiee. Comer's Cr. Pr. 56. When the application is 
 granted, the attorney for the party at whose instance it is issued 
 makes out the writ on parchment, and it is issued from the crown 
 oflSoe, and sealed at the seal office, and, if in term time, is indorsed 
 " by rule of court." When granted by the court at the instance of a 
 defendant, the amount of the recognizances, to be entered into before 
 a judge of the Queen's Bench, or a justice of the county or place in 
 which the defendant resides, by the defendant and his bail, will be 
 ordered by the court and indorsed on the writ. 5 <& 6 W.S M.c. 11 ; 
 5 c6 6 TF. 4, c. 33. When the application for the writ is made in 
 vacation the affidavits must be left for the perusal of the judge at 
 chambers ; and if he thinks it a proper case in which a certiorari 
 should issue, he signs a fiat directing it to issue, and he signs the 
 indorsement on the writ. If the writ be at the instance of the de- 
 fendant, he endorses the amount of recognizances to be entered into 
 by the defendant and his bail. 
 
 The following rule of court, respecting the condition of recogni- 
 zances for the attendance of defendants on the trial of indictments, 
 was issued by the court of Queen's Bench, in Easter Term, 1852 : — 
 " It is ordered, that whenever a defendant shall be required by law 
 and the practice of this court, to give recognizance to appear and 
 answer to any indictment found in this court, or removed, or to be 
 removed, into the same, it shall be added to the condition of every 
 such recognizance that the defendant shall personally appear from 
 day to day on the trial of such indictment, and not depart until he 
 shall be discharged by the court or judge before whom such trial 
 shall be had, unless the court or judge shall see fit to dispense with 
 the condition of such additional recognizance." 
 
 Further, the stat. 16 & 17 Vict. c. 30, s. 5, requires also, that when- 
 ever the certiorari is awarded at the instance of a defendant or de- 
 fendants, the recognizance now by law required shall contain the 
 further provision, that the defendant or defendants, in case he or they 
 shall be convicted, shall pay to the prosecutor his costs incurred sub- 
 sequent to the removal of the indictment (see B. v. Hodgson, 7 Exch. 
 915 ; Dears. 14) ; and that whenever the writ is awarded at the 
 instance of the prosecutor, he shall enter into a recognizance (to be 
 acknowledged in like manner as required in eases of writs of certiorari 
 awarded at the instance of a defendant), with the condition that he 
 shall pay to the defendant or defendants, in case he or they shall be 
 acquitted, his or their costs incurred subsequent to such removal. 
 The prosecutor's liability to pay costs to the defendant, if acquitted, 
 only arises where the prosecutor has entered into the recognizance 
 with the condition mentioned in this section ; if he has merely entered 
 into a recognizance conditioned to prosecute with effect, and to do 
 and perfoi'm such order as the court shall direct, he is not liable to 
 costs. R. V. East Stoke, 6 B. & S. 536; 34 L. J. {M. C.) 190. 
 Under this section, where the certiorari is applied for at the instance 
 of one of two defendants, it may be made a condition of the recog- 
 nizance that the defendant applying for the writ shall pay the prose- 
 cutor's costs, in case either he or the other defendant shall be con- 
 victed. R. V. Jewell, 7 E. <& B. 140; 26 L. J. (Q. B.) 177. An in- 
 dictment against a corporation, found at the quarter sessions, may be 
 removed, at the instance of the prosecutor, without his entering into 
 
Indictment. 99 
 
 the recognizance required by this section: see ss. 6—8. R. v. Mayor 
 of Manchester, 1 E. & B. 453; 26 L. J. (M. C.) 65. 
 
 By s. 7 of the same act, if the person or persons at whose in- 
 stance any writ of certiorari shall be awarded shall not, before the 
 allowance thereof, enter into such recognizance as is hereinbefore 
 provided, the court to which such writ may be directed shall and 
 may proceed to the trial of the indictment, as if such writ of certiorari 
 had not been awarded. 
 
 The following is the form of the recognizance: — 
 
 East Riding of Yorlcshire, } Be it rememhered, that on the eighth 
 to wit. S day of April, in the year of our Lord 
 
 one thousand eight hwndred and sixty-two, A. B., of, etc. [name and 
 addition of defendant], C. D., of, etc., and B. F., of, etc. [names and 
 additions of bail], come before me, W. C. S., one of tlie keepers of the 
 peace amd justices of our lady the Queen in arid for the East Riding 
 of the comity of York, amd acknowledge to owe to our said lady the 
 Queen the several sums following; that is to say, the said A. B. the 
 
 sum of pounds, and the said C. D. and the said E. P. the sum 
 
 of pounds [such sum as the court or judge shall oi-der, 5 & 6 
 
 W. 4, c. 33, s. 2], each of lawful money of Cheat Britain to he levied 
 upon their several goods and chattels, lands and tenements, to her 
 Mty'esiy's use; upon this condition, that if the said A. B. [the de- 
 fendant] shall appear in her Majesty's court of Queen's Bench at 
 Westminster, on the first day of next term, and plead to all and sin- 
 gular indictments of whatsoever misdemeanors whereof he stands in- 
 dicted, and at his own proper costs and charges shall cause and pro- 
 cure the issue or issues that may he joined thereon to he tried at the 
 next assises to he holden after the same term, in and for the county of 
 York, if the court shall not appoint any other time for the trial 
 thereof; and if the said court shall appoint amy other time, then at 
 such other time; and shall give due notice of such trial to the prose- 
 cutor or his attorney, and shall personally appear from day to day 
 in the said court, and not depart until discha/rged by the said cowrt, 
 and also shall pay to the prosecutors of such indictments, in case he 
 the said A. B. shall he convicted thereon, their costs incurred subse- 
 quent to the removal of such indictments into the said court of 
 Queen's Bench, then this recognizance to be void, or else to remain in 
 fullforce. 
 
 Taken and acknowledged 'i-m n a 
 the day and yewr first ^ ' ' 
 
 Where a defendant has entered into insufficient recognizances, the 
 court will discharge such recognizances, and compel the defendant to 
 give better security. R. v. Hooper, 1 Chitt. R. 491. 
 
 The following is the form of the rule to compel the defendant to put 
 in better bail : — 
 
 The Queen "^ Unless the defendamt shall put in better bail within 
 against > four days next after notice of this rule to him or 
 A. B. 3 his attorney given, let a procedendo issue. 
 
 A. E. COCKBTTEN. 
 
 The recognizance must be lodged together with the writ with the 
 clerk of the peace or clerk of assize, as the case may be; and after 
 
 f2 
 
100 Indictment. 
 
 they are lodged, all proceedings upon the indictment in the coiu't 
 below are erroneous. The prosecutoi', it may be added, is under 
 no recognizance to prosecute, when the writ is issued at his 
 instance. 
 
 Return to writ.'] — The return is made by an indorsement on the writ, 
 stating that the execution of this writ appears hy the schedules to the 
 writ annexed. The answer of W. C. S., Esq., one of the Justices assigned 
 to heep the peace, etc. The schedules must be on parchment ; the re- 
 turn will be quashed if they are on paper. 1 Bum's J. 647 (30th ed.). 
 They must be annexed to the writ, and the return should certiiy, on 
 behalf of the justices to whom it is directed, under the seal of the 
 chairman if du-ected to the sessions, or all the justices of the county 
 or riding, or, if not directed to all, under the seal of one of those to 
 whom it is directed, the indictment mentioned in the writ, together 
 with all matters touching the same indictment, and the record itself, 
 including the original indictment, with the caption and recognizances 
 annexed. 1 Doiol. 510; 4 J3. & C. 401; & B.db C. 640; 2 Hawk. 
 c. 29, s. 54. 
 
 The following is the form of return from a single justice : — 
 
 East Riding of Yorhshire, ) J, W. C. S., one of the heepers of the 
 to wit. S peace, ami Justices of our lady the 
 
 Queen assigned to heep the peace within the said East Riding of the 
 comity of York; and also to hear and determine divers felonies, tres- 
 passes, and misdemeanors in the same committed, hy virtue of this 
 writ to me delivered, do under my seal return unto her Majesty, in her 
 court of Queen's Bench, the indictment of which mention is made in 
 the same writ, together with all mailers touching the same. In witness 
 whereof, I, the said W. C. S., have to these presents set my seal. 
 
 Given at Beverley, in the said Riding, on this day of , in the 
 
 year of our Lord one thousamd eight hundred and sixty -two. 
 
 Sending hack the record.'] — If the writ of certiorari have been im- 
 providently issued, as if it should appear to have been obtained by 
 a misrepi-esentation of the facts, the court (or a judge of any of the 
 superior courts sitting at chambers, R. v. Scaife, 2 Den. 513; 18 
 Q. B. 773; ?, C. & K. 211; 21 L. J. (M. C.) 221) may award a writ 
 pf procedendo, and send back the record to the original jurisdiction, 
 there to be dealt with, 1 Bum's J. 648 (iOth ed.), as if no certiorari 
 had issued. See 4 Inst. 67. So, also, if the defendant neglects to 
 perform the condition of the recognizance, or if bad or insufficient 
 bail be put in. R. v. Jones, 9 Dowl. 505 : R. v. Dunn, 8 T. R. 217 : 
 R. V. Abergele, b A.&E. 795 ; Comyns' Dig. Certiorari (ff.) ; 1 Chitty's 
 Orim. L. 397. And where the defendants in a case originally removed 
 fi'om quarter sessions by certiorari, having obtained a rule in the 
 Queen's Bench for a new trial, neglected to bring down the record 
 and proceed to trial at the assizes, a writ oi procedendo was awarded, 
 and the record was sent back to sessions, where the parties were 
 tried and sentenced to transportation. R. v. Scaife, ubi supra. 
 
 The following is the form of the writ oi procedendo : — 
 
 'Victoria, etc. — To the keepers of our peace and Justices assigned to 
 hear and determine divers felonies, trespasses and other misdemeanors 
 
 committed within our city [or county] of , and to every one of 
 
 them greeting : TVhereas lately by our writ we commanded you cmd 
 
.Indictment. 101 
 
 every of you, for certain reasons, that you or one of you send under your 
 seals, or the seal of one of you, before us at Westminster, at a certain 
 day now past, all and singular indictments of whatever [felonies] 
 whereof E. S. was indicted before you {as was said), with all things 
 touching the same, by whatever name the said R. S. should be called 
 therein, together with the said writ to you directed, that we might further 
 cause to be done thereon what of right and according to the law and 
 custom of England we should see fit to be done. We do now for certain 
 reasons us tlierewnto specially moving, command you and eoery of you 
 that you do wholly supersede whatsoever is to be done concerning the 
 execution of that owr said writ ; and that you proceed to the determina- 
 tion of the said indictment against the said R. S. for the said offence, 
 with that expedition which to you shall seem right and according to the 
 law and custom aforesaid, notwithsta/nding our writ as before sent to you 
 directed for the purpose aforesaid. Witness Sir Alexander James Ed- 
 mund Coclcbum, Bart., this [the day on which the writ is issued], in 
 the twenty-fifth year of our reign. 
 
 By the Court. 
 See Gude's Cr. Prac. 621; Comiyn£ Dig. Certiorari (G.) 
 
 Trial at Central Criminal Court of indictments removed by cer- 
 tiorari.'] — By the stat. 19 S 20 Vict. c. 16, s. 1, the court of Queen's 
 Bench in term time, or any judge thereof in vacation is authorized, 
 ■whenever any indictment or inquisition for any felony or misdemeanor 
 committed or supposed to have heen committed at any place out of 
 the jm-isdiotion of the Central Criminal Com-t shall have been re- 
 moved by certiorari into the Queen's Bench, to order, if it appear to 
 be expedient to the ends of justice, that such indictment or inquisition 
 shall be tried at the Central Criminal Court. Or such court or judge 
 may, in any such case of felony or misdemeanor, order a certiorari to 
 issue to the court before which the indictment or inquisition shall be 
 pending, or shall thereafter be found, or to the coroner before whom 
 such inquisition shall have been or shall thereafter be taken, to remove 
 the indictment or inquisition directly into the Central Criminal Court; 
 s. 3. Provisions are made for the transmission of the indictment or 
 inquisition, and for the return of the recognizances, depositions, etc., 
 into that court {ss. 2, 4); for the removal of the offender to the gaol 
 of Newgate (s. 5) ; for his arraignment, pleading and trial at the 
 Central Criminal Court (ss. 6, 7) ; for the allowance of the expenses 
 of prosecutions (s. 13); for the execution of the sentence either in the 
 county where the offence was committed or within the jurisdiction of 
 the Central Criminal Court (s. 19); and otherwise in relation to the 
 objects of the act. The 24th section empowers the court of Queen's 
 Bench, or a judge thereof in vacation, on the application of the pro- 
 secutor or defendant for an order that the indictment or inquisition 
 shall be tried at the Central Criminal Court, to require the party 
 applying to submit to, such conditions as to bail, the payment of the 
 costs of the prosecutor and witnesses, and of the removal, etc., of the 
 indictment or inquisition, and of the removal of the defendant, and 
 any other matter or thing whatsoever, as in the judgment of the com-t 
 or judge may reasonably be imposed. The court refused to make it 
 a condition, under this section, that the prosecutor should furnish the 
 defendant with evidence which it was suggested had been obtained 
 by the prosecutor since the depositions were taken. S. v. Palmer, 5 
 E. & B. 1024. 
 
102 Indictment. 
 
 Costs in cerUoranJ] — If the defendant, at ■whose instance an indict- 
 ment has been removed by certiorari, be convicted, the court of 
 Queen's Bench will order reasonable costs to be paid to the prose- 
 cutor, if he be the party grieved or injured, or be a justice of peace, 
 mayor, bailiff, constable, headborough, tithingman, churchwarden or 
 overseer of the poor, or any other civil officer who has prosecuted 
 upon the account of any fact committed or done that concerned him 
 or them as officer or officers to prosecute or present, b & & W. & 
 M. c. 11, s. 3; %&°iW. 3, c. 33; 5 cfi 6 W. 4, c. 33, s. 2. But a de- 
 fendant who removes the indictment is not liable to costs, although 
 he be convicted by a jury, if judgment be aiTested. R. v. Turner, 15 
 East, 570. [As to costs where a new trial is ordered, see post, Ch. V.] 
 If a defendant die after verdict convicting him, and before judgment, 
 his bail will be liable for the costs to the extent of their recogni- 
 zances; R.y. Turner, 3 B. & C. 160: R. v. Finmore, 8 T. R. 409; but 
 under ordinary circumstances the prosecutor is not entitled to costs 
 till the court has pronounced judgment, for it may be that judgment 
 will be arrested. 15 East, 570. If an indictment against several de- 
 fendants be removed into the Queen's Bench without the consent of 
 all of them, those who did not consent to the application for the cer- 
 tiorari are not liable for the costs, even though they have pleaded to 
 the indictment and have been convicted upon it ; R. v. Hassell, 5 
 Dowl. 531; and per Patteson, J., the court will grant a certiorari on 
 an indictment for a conspiracy, on the application of one of several 
 defendants, without the consent of the others, if that defendant will 
 enter into a recognizance to pay costs if either he or any other of 
 the defendants are convicted. R. v. Foulhes, \ L M. d P. 720; 20 
 L. J. (M. C.) 196. See R. v. Jeivell, T E. <& B. 140; 26 L. J. (Q. B.) 
 177, ante, p. 98 : R. v. Wilks, b E. & B. 690; 25 L. J. (Q. B.) 47. 
 
 Under the stat. 5 S G W. (& M. e. 11, nominal prosecutors who 
 incur no expense, the expenses of the prosecution being defrayed by 
 public subscription or from public funds, are not entitled to costs. R. 
 V. Cook, 1 Man. <& Ry. 526: R. v. Edwards, bB.&Ad. 407, n. : R. v. 
 Dewhurst, b B. <& Ad. AOb; 2 L. J. (M. C.) 92 : R. v. Wilson, Dears. 
 79 ; lE.&B. 597 ; 22 L. J. (M. C) 53. But if a party grieved be 
 in fact the prosecutor, it is not necessary, to entitle him to such 
 costs, that he should have been bound over to prosecute, even 
 though another person, not a party grieved, has been so bound 
 over, and appears at the trial under his recognizance. R, v. 
 Bishop, 6 Dowl & L. "499; 18 L. J. (M. C.) 63. A person is not 
 entitled to costs who suffers no greater inconvenience from a nuisance 
 than all the rest of the Queen's subjects do ; but parties who suffer 
 actual inconvenience from a common nuisance, as by erecting a steam- 
 engine, R. V. Dewsnap, 16 East, 194: or from an omission to repair a 
 highway used by the party, R. v. Inhabitants of Taunton, S M. & Set. 
 465: R. V. Incledon, 1 M. S Sel. 268, or any person who suffers any 
 particular loss, obstruction or annoyance therefrom, R. v. Thomphins^ 
 2 B.<& Ad. 287, are within the act of parliament. It is not enough 
 to entitle him to costs, that a party be injured indirectly by means of 
 the offence of which the defendant has been convicted ; as where a 
 person was injured at a riot occasioned by a libel for which a prose- 
 cution was afterwards instituted. Where a society, composed exclu- 
 sively of attorneys, prosecuted the clerk of a board of guardians, 
 who, without being qualified as an attorney, conducted an appeal at 
 quarter sessions, it was held that the society was a party grieved 
 
Indictment. 103 
 
 ■within h & ^ W. & M.c. 11, s. 13: R. v. Buchanan, 3 Cox, 427. 
 Where the prosecution was for peijury, at the instance of the exe- 
 cutors of a deceased person, the false oath relating to a claim of 
 money alleged by them to be due from the defendant to their tes- 
 tator's estate, they were held to be parties grieved within the act, 
 though the perjury had not occasioned them any actual damage. 
 R. V. Major, Dears. 13 ; 21 L. J. {M. C.) 221. Where the town clerk 
 of a borough, by direction of the town council, prosecuted the clerk 
 to the borough justices for a breach of the 103rd section of the Muni- 
 cipal Corporation Act, the defendant was held liable to costs under 
 the 5 <£ 6 TF. (6 M. c. 11 : R. v. Fox, Q. B. 1860. As to costs in the 
 case of magistrates, etc., see jB. v. Sharpness, 2 T. R. 47 : R. v. Kettle- 
 worth, 6 T. R. 33 : R. v. Earl of Waldegrave, 2 Q. B. 341; 11 L. J. 
 (M. C.) 19: R. V. Kenealey, 4 Cox, 346. The prosecutor is not 
 entitled to the costs of any counts of the indictment on which the 
 defendant has been acquitted, R. v. Hawdon, 11 A. & E. 143 ; nor to 
 costs incurred prior to the certiorari; R. v. Passman, 1 A. (& E. 603: 
 R. V. Eiggins, 5 Dmjol. 375; 6 L. J. (M. C.) 9. The defendant is 
 to pay all reasonable costs occasioned by the removal of the indict- 
 ment by the certiorari, or incurred in consequence of it, in order 
 to carry the prosecution to its legal conclusion ; R. v. Gilbie, b M. & 
 Set 520; the amount of costs is not limited by the recognizance. 
 R. V. Teal, 13 East, 4. It may be added, that if a prosecutor, being 
 entitled to costs, die after taxation of costs, his personal representa- 
 tives are entitled to them. 
 
 The costs are to be taxed according to the course of the court of 
 Queen's Bench, and for the recovery of them the persons entitled 
 thereto shall, at the expiration often days after demand made of the 
 person or persons at whose instance the writ oi certiorari was awarded, 
 and on oath made of such demand and refusal of payment, have a 
 writ of attachment against him or them for such contempt ; and the 
 court shall and may also order the recognizance to be estreated into 
 the Exchequer, 16 <£• 17 Vict. c. 30, s. 6. 
 
 As to the cases in which the defendant may, by reason of poverty 
 or bankruptcy, have relief from the payment of the costs, see R. v. 
 Thornton, 4 Exch. 820; 19 L. J. {M. C.) 113: R. v. Hills, 2 E. & B. 
 176; 22 L.J. (Q. B.)i22. 
 
 As to the costs in cases where the indictment, after its removal by 
 certiorari, is tried at the Central Criminal Court, under 19 & 20 Vict, 
 c. 16, see the 25th and following sections of that act; post, Pt. II., 
 ■Ch. II., Sect. 4 (^Expenses of Witnesses). 
 
 [As to certiorari to remove inquisitions, see post, Ch. III.'\ 
 
 It may be useful to observe, that where the quarter sessions of a 
 county occur while the judge of assize is proceeding with the trial of 
 prisoners in that county, after the grand jury have been discharged, 
 it has been considered proper that the quarter sessions should not 
 proceed with the trial of prisoners, but, after disposing of their other 
 business, should adjourn to a future day. See 9 C. (& P. 790. But 
 as the commission of the peace is not determined or suspended by the 
 commission of assize, a trial at the sessions, during the continuance 
 of the assizes in the same county, is valid in law. Smith v. R., 13 Q. 
 B. 738; 18 L. J. {M. C.) 207. 
 
104 Indictment. 
 
 By the stat. 5 c6 6 Vict. c. 38, it is enacted, that after the passing 
 of that act, neither the justices of the peace acting in and for any 
 county, riding, division, or liberty, nor the recorder of any 
 borough, shall at any session of the peace, or at any adjournment 
 thereof, try any person or persons for any treason, murder, or 
 capital felony, or for any felony which, when committed by a person 
 not previously convicted of felony, is punishable by transportation 
 beypnd the seas [now penal servitude, 20 & 21 Vict. c. 3, ss. 2, 6] for 
 life, or for any of the following offences: — 1. Misprision of treason; 
 2. Offences against the Queen's title, prerogative, person, or govem- 
 mfent, or against either House of Parliament ; 3. Offences subject to 
 the penalties ot prmmunire; 4. Blasphemy, and offences against re- 
 ligion ; 5. Administering and taking unlawful oaths ; 6. Perjury and 
 subornation of perjury ; 7. Making or suborning any other person 
 to make a false oath, affirmation, or declaration, punishable as peijuiy 
 or as a misdemeanor; 8. Forgery; 9. Unlawfully and maliciously 
 setting fire to crops of corn, grain, or pulse, or to any part of a wood, 
 coppice, or plantation of trees, or to any heath, gorse, furze, or fern ; 
 
 10. Bigamy and offences against the laws relating to marriage ; 
 
 11. Abduction of women and girls; 12. Endeavouring to conceal 
 the birth of a child ; 13. Offences against any provision of the laws 
 relating to bankrupts and insolvents [offences against any provision 
 of the law relating to bankrupts are, however, now triable at quarter 
 sessions, 32 & 33 Vict. c. 62, s. 20] ; 14. Composing, printing, or 
 publishing blasphemous, seditious, or defamatory libels ; 15. Bribery; 
 16. Unlawful combinations and conspiracies, except conspiracies and 
 combinations to commit any offence which such justices or recorder 
 respectively have or has jurisdiction to try when committed by one 
 person ; 17. Stealing, or fraudulently taking, or injuring or destroy- 
 ing, records or documents belonging to any court of law or equity, 
 or relating to any proceeding therein; 18. Stealing, or fraudulently 
 destroying or concealing, wills or testamentary papers, or any docu- 
 ment or written instrument being or containing evidence of the title 
 to any real estate, or any interest in lands, tenements, or heredita- 
 ments. 
 
 The jurisdiction of the quai-ter sessions to try a person for the 
 common law misdemeanor of attempting to commit suicide, is not 
 taken away by 24 & 25 Vict. a. 100, which renders an attempt to com- 
 mit murder a felony, punishable by penal servitude for life ; for at- 
 tempting to kill oneself is not an attempt to commit murder within 
 the meaning of that statute. R. v. Burgess, L. & C. 258 ; 32 L. J. 
 (M. C) 55. Where an indictment charged that the defendants con- 
 spired by divers false pretences, against the form of the statute, to 
 defraud the prosecutor of his money; and it was objected that the 
 facts ought to have been set out, so as to show that the false pre- 
 tences were within the jurisdiction of the sessions, by which the in- 
 dictment had been tried, the court of Queen's Bench held that, after 
 verdict, it must be taken that the jury had found the defendants guilty 
 on facts, proving a conspiracy to defraud by such false pretences as 
 were cognizable by the sessions. Latham v. i?., b B. & S. 635; 33 
 L. J. (M. C.) 197. 
 
 By stat. 24 S 25 Vict. c. 96, s. 87, no misdemeanor against " any of 
 the last twelve preceding sections of" that act (for the punishment 
 of frauds by trustees, bankers, officers of public companies, etc.,) 
 shall be prosecuted or tried at any court of general or quarter sessions 
 of the peace. 
 
Indictment. 105 
 
 The misdemeanor of three or more entering land in the night, to 
 take game, armed, is not within the jurisdiction of quarter sessions. 
 9 G. 4, c. 69, s. 9. 
 
 The misdemeanor of bribery or undue influence committed at a 
 parliamentary election is not within the jurisdiction of quarter ses- 
 sions. 17 & 18 Vict. c. 102, =. 10. 
 
 Sect. 12. 
 
 HOLLB PEOSEQtri. 
 
 A Twlle, prosequi to stay proceedings upon an indictment or infor- 
 mation may be entered, at the instance of either the prosecutor or the 
 defendant, by leave of the attorney-general, at any time after the bill 
 of indictment is found, and before judgment. Leave is never given 
 except upon good cause shown, and it is never refused when the 
 interests of justice require it. But a nolle prosequi cannot be entered 
 either in the Queen's Bench, or at the assizes or quarter sessions, 
 without the authority of the attorney-general, or perhaps, in the 
 vacancy of that office, of the solicitor-general. E. v. Dunn, 1 C.&K. 
 730; Ld.Raym. 721: B. v. Colling, 2 Cox, 184. The following is 
 the form of the attorney-general's fiat or waiTant to the coroner 
 and attorney of the Queen's Bench to enter a nolle prosequi, in order 
 to admit a prisoner, indicted for a conspiracy, as a witness for the 
 crown : — 
 
 Whereas at the general quarter sessions of the peace holdenfor the 
 West Hiding of the county of Yorle, etc., an indictment was found hy 
 the grand jury of the said riding against H. S., T. S., G. E. and 
 S, C, for a conspiracy falsely to charge J. H. to &e tlu fatlier of a 
 iastard child, whereof the said H. S. was pregnant, which indictment 
 has since been removed into her Majesty^ s court of Qtieen's Bench at 
 Westminster; and whereas it is represented to me on the part of tlie 
 prosecutor of the said indictment, that he considering that the said 
 H. S. was ratlier an object of the conspiracy of the other defendants 
 than a willing actress in it, and from recent information that slie is 
 compa/ratively innocent ; and considering that the ends of justice 
 would he best answered were she in a situation to undergo examination 
 as a witness upon the subject-matter of the indictment, is desirous, 
 with the advice of his counsel, to have a nolle prosequi entered as 
 against the said H. S., and that he prays the same accordingly ; 
 these are therefore to authorize and require you to enter or cause to 
 be entered a nolle prosequi upon the said indictment as to the said 
 H. S. And for so doing this shall be your warrant. Dated, etc. 
 
 To A. B., Esq., coroner and attorney of the court of Queen^s Bench. 
 
 In cases similar to the foregoing, where the application is made at 
 the instance of the prosecutor, the opinion of counsel as to the desira- 
 bleness of having the defendant examined as a witness is laid before 
 the attorney-general, who will order the nolle prosequi to be entered 
 without issuing any summons to the defendant : but where the appli- 
 cation proceeds from the defendant, the attorney-general will du-ect 
 his clerk to summon the prosecutor to show cause before him at his 
 chambers why proceedings should not be stayed, and on hearing the 
 parties grant his warrant, if he thinks the circumstances of the case 
 demand it. The attorney- general may, however, on an ex parte ap- 
 
 p 5 
 
106 Indictment. 
 
 plication by the defendant, and without calling the prosecutor before 
 him, enter a nolle prosequi to an indictment, R. v. A lien, 1 B.d; S. 850 ; 
 31 L. J. (JM. C.) 129. The usual occasion of granting a, nolle prosequi 
 is either where in cases of misdemeanor a civil action is depending 
 for the same cause; 2 Burr. 720; 1 Bos. <& P. 191; or where any- 
 improper and vexatious attempts are made to oppress the defendant, as 
 by repeatedly preferring defective indictments for the same supposed 
 offence ; 1 W. Bla. 545 ; or if it be clear that an indictment be not 
 sustainable against the defendant. 1 Com. Rep. 312; 1 Chitbifs 
 Grim. L. 479. Where an indictment is preferred against a defendant 
 for an assault, and at the same time an action of trespass is com- 
 menced in one of the civil courts for identically the same assault, upon 
 affidavit of the facts, and hearing the parties, the attorney-general 
 will, if he sees fit, order a nolh prosequi to be entered to the indict- 
 ment, or compel the prosecutor to elect whether he will pursue the 
 criminal or civil remedy. 2 Burr. 720; 1 Chitty's Crim. L. 479. The 
 following may be the form of the affidavit in such a case: — 
 
 I, A. B., of the pcmsh of , in the county of , etc., make 
 
 oath and say, that I, this deponent, did see the clerk of the peace of 
 
 the county of sign a certificate hereto annexed, on the day 
 
 of , at , and that since [or before^ the time of preferring 
 
 the indictm,ent, in the said certificate m&ntioned, I was served with a 
 copy of a writ of summons, issuing out of her Majesty^s court of 
 Queen's Bench, at the suit of C. D., the prosecutor of the said in- 
 dictment, requiring me within eight days to cause an appearance to 
 he entered for me in the court of Queen's Bench, in an action of 
 
 trespass at the suit of the said C. D. : cund that on the day of 
 
 /, this deponent, did receive a notice of a declaration being filed 
 
 against me at the suit of the said C. D., the prosecutor of the said 
 indictment, in the master's office of the Queen's Bench, for assaulting 
 Mm the said C. D., which said declaration and indictment, I say, are 
 for the same assault and not for different offences. 
 
 A certificate from the clerk of the peace, stating the substance of the 
 indictment, and the time when it was preferred, must be annexed to 
 this affidavit. Cro.C. 0.25 (10th ed.) (For form of certificate, seeBAlh.) 
 And if the attorney-general think the case a proper one for his inter- 
 ference, he will sign a warrant under his hand and seal, directed to 
 the clerk of the peace, if the indictment has been found at sessions, 
 directing him to enter a stet processus. R. v. Fielding, 2 Burr. 719: 
 Jones V. Clay, 1 Bos. & P. 191. If the cause of the application be 
 the vexatious conduct of the prosecutor, the attorney-general may 
 direct the proceedings to be removed into the Queen's Bench, where 
 counsel will be heard in support of the nolle prosequi. 1 W. Bla. 
 545. A nolle prosequi may be entered as to one of several defendants 
 at any time before trial ; 11 East, 307 ; and on motion for a new trial 
 in the Queen's Bench on an indictment for a conspiracy against 
 several defendants, the counsel for the crown, at the suggestion of 
 the court, and having received the assent of the attorney-general (the 
 attorney-general appearing as counsel for one of the defendants), 
 entered a nolle prosequi as to two defendants, when the rule for a new 
 trial was refused as to the rest ; R. v. Rowlands, 2 Den. 364 ; 17 Q. B. 
 671; 21 L. J. (M. C.) 81: andseeR. v. Hempstead, R. & R. 344 : andR. 
 V. Butterworth, R. & R. 520; and on application for a rule nisi to arrest 
 the judgment on an indictment for a conspiracy, a nolle prosequi was 
 
Indictment. 107 
 
 entered on three counts of an indictment, as to the sufficiency of 
 ■which some doubts were entertained, and the court pronounced judg- 
 ment on the remaining good counts, a verdict having been taken on 
 each count. R. v. Rowlands, supra. The following is the form of 
 entering a nolle prosequi on record: — 
 
 , And now, that is to say, on , in the said term, before our said lady 
 
 the Queen herself at Westminster, cometh the said C. F. R., attorney and 
 coroner [or attorney-general, as the case maybe,] of our said lady the 
 Queen, before the Queen herself, who for our said lady the Queen in this 
 behalf proseeuteth, and saith that the said C.P. E. will not further pro- 
 secute the said A. B. on behalf of our said lady the Queen on the said 
 indictment \ov information']. Therefore let all further proceedings be 
 altogether stayed here in court against him the said A. B. upon the in- 
 dictment aforesaid. 
 
 A nolle prosequi does not operate as an acquittal; the party remains 
 liable to be re-indicted, and it has been said that even fresh process 
 may be awarded on the same indictment. 6 Mod. 261 ; 1 Salk. 59 ; 
 Com. Dig. Indict. (K.); 1 Wms. Saund. 207 (n). This dictum, how- 
 ever, appears not to be law. See the judgment in B. v. Allen, 1 B. 
 & S. 850; 31 i. J. (M. C.) 129: R. v. Mitchel, 3 Cox, 93; andArch- 
 bold's Crown Office Practice, 62. 
 
( 108 ) 
 
 CHAPTER II. 
 
 INFORMATION. 
 
 Sect. 1. Information ex officio, p. 108. 
 
 2. Information by the Master of the Orovm Office, p. 110. 
 
 Sect. 1. 
 inpoemation ex officio. 
 
 What and in what cases."] — The information ex officio is a formal 
 ■written suggestion of an offence committed, filed by the Queen's at- 
 torney-general (or, in the vacancy of that office, by the solicitor- 
 general, R. V. Wilhes, 4 Burr. 2527; 4 Bro. P. C. 360) in the court 
 of Queen's Bench, without the intervention of a grand jury. 
 
 It lies for misdemeanors only, and not for treason, felonies, Com. 
 Big. Information (-4. 1): R. v. Prynn, 5 Mod. 459: R. v. Berchet, 1 . 
 Show. 106, or misprision of treason ; 2 Hawh. c. 26, s. 3 ; for wherever 
 any capital offence is charged, or an offence so highly penal as mis- 
 prision of treason, the law of England requires that the accusation 
 should be warranted by the oath of twelve men, before the defendant 
 be put to answer it. The usual objects of an information ex officio 
 are properly such enormous misdemeanors as peculiarly tend to 
 disturb or endanger the Queen's government, or to molest or affront 
 her in the regular discharge of her royal functions; 4 Bla. Com. 308; 
 such, for instance, as seditious or blasphemous libels or words; sedi- 
 tious riots not amounting to high treason ; libels upon the Queen's 
 ministers, the judges, or other high officers, reflecting upon their con- 
 duct in the execution of their official duties; obstructing such officers 
 in the execution of their duties; obstructing the Queen!s officers in 
 the collection, etc., of the revenue; against magistrates and officers 
 themselves for bribery, or for other corrupt or oppressive conduct ; 
 and the like. In R. v. Brown and others, Q. B., February, 1858, infor- 
 mations ex officio were filed against directors of a banlung company, 
 for a conspiracy to defraud the shareholders by false reports of the 
 pecuniary condition of the bank, and otherwise. 
 
 Form of it] — The form of an information ex officio is thus: — 
 
 " Trinity Term, 25 Vict. 
 
 "Middlesex: — Be it remembered, that Sir William Atherton, Tmighf, 
 attorney -general of our sovereign lady the Queen, who for our said lady 
 the Queen prosecutes in this behalf, in his proper person comes into the 
 eov/rt of ow said lady the Queen before the Queen herself at West- 
 minster, in the county of Middlesex, on [Wednesday next after three 
 weeks of the Holy 'Trinity in this same term], and for our said lady 
 the Queen gives the court here to vmderstamd amd he informed, that," etc., 
 so proceeding to state the facts and circumstances constituting the 
 offence, with [the same certainty and precision as in an indictment, 
 
Information. 109 
 
 and in the same form, and according to the same rules, excepting 
 that, in introducing averments, instead of the words, " And the jurors 
 aforesaid^ upon their oath aforesaid, do further present " are used the 
 words, " And the said attorney-general of our said lady the Queen, 
 for our said lady the Queen, further gives the court here to understand 
 and he informed that," etc. The conclusion is the same as in an in- 
 dictment. 
 
 The second and subsequent counts commence thus: " And the said 
 attorney-general of our said lady the. Queen, for oar said lady the Queen, 
 further gives the court here to understand and he informed that" so 
 proceeding to state the offence, and concluding as in an indictment. 
 And to the conclusion of the last count are added these words : "And 
 therefore the said attorney -general of our said lady the Queen prayeth 
 the consideration of the court here in the premises, and that du^e process 
 of law may he awarded against him the said J. S. in this hehalf, to 
 make him answer to our said lady the Queen touching and concerning 
 the premises aforesaid." 
 
 This information is filed in the crown ofiice, without any leave 
 previously obtained of the court for that pm-pose ; and the court 
 therefore will not entertain a motion by the attorney-general for a 
 criminal information at the suit of the' crown, as in the ordinary 
 cases of an information by the master of the crown office at the 
 suit of an individual; B. v. Phillips, 3 Burr. 1564: B. v. Plymouth, 
 4 Burr. 2089; 1 Deacon (re.) 672; nor wUl the com-t, upon the appli- 
 cation of the defendant, restrain the attorney-general from filing an 
 ex officio information, upon the ground that a criminal information 
 has ah-eady been granted for the same cause. B. v. Alexander, MS., 
 E. T. 1830. But in the same case, after both informations had been 
 filed, the coui-t stayed the criminal information until further order. 
 &eep. \\^,post. 
 
 The court will not quash an information ex officio at the instance of 
 the prosecutor, because the attorney-general may, if he wQl, enter a 
 nolle prosequi; B. v. Stratton, 1 Doug. 239, 240 ; and even upon the 
 motion of the defendant, they wUl seldom quash it, but generally put 
 the defendant to demur, etc.; see Com. Dig. Information, (D. 4); B. 
 v. Gregory, 1 Salk. 372 ; and after demurrer the information may be 
 amended. B. v. Holland, 4 T. B. 467. 
 
 The information having been filed, the defendant after appearance, 
 upon application to the com-t, is entitled to a copy of it free of ex- 
 pense. 60 (?. 3 c6 1 (?. 4, c. 4, s. 8. If the attorney- general delay 
 bringing the information to trial, the defendant cannot take it down 
 by proviso; B. v. M'-Leod, 2 East, 202 ; but if it be not brought to trial 
 within twelve calendar months next after the plea of not guilty has 
 been pleaded, the defendant may, after twenty days' notice to the 
 attorney or solicitor-general, apply to the court in which the prose- 
 cution is depending, and the court may authorize the defendant to 
 bring on the trial, who may bring it on accordingly, unless a nolle 
 prosequi be entered. &0 G. 3 (& 1 G. 4, c. 4, s. 9. The attorney- 
 general is entitled, if he please, to a trial at bai-; B. v. Johnson, 1 
 Stra. 644 ; and on the trial has the right of reply, even though the 
 defendant call no witnesses. B. v. Marsden, M. & M. 439. The same 
 right has been admitted also in prosecutions by a government office, 
 in which the counsel for the prosecutor states that he appears as the 
 representative of the attorney-general. B. v. Gardner, 1 C. & K. 
 628. Martin, B., has however stated, in a recent case, that he should 
 confine the exercise of this right to the attorney-general of England 
 in person. B. v. Christie, 1 F. & F. 75. It has been still more re-. 
 
110 Information. 
 
 cently held that the solicitor-general, appearing on behalf of the 
 attorney-general in conducting post-oifice prosecutions has this right. 
 R. V. Toakley, 10 Ck)x, 406: R. v. Barrow, Id. 407. 
 
 If the defendant be acquitted, or a nolle prosequi be entered, he has 
 all his own expenses to defray, as it is held to be beneatli the dignity 
 of the crown to receive costs or to pay them. Hullock, 557. 
 
 Sect. 2. 
 information by the master op the crown office. 
 
 Wliat and in what cases."] — An information by the master of the 
 crown office is a formal written suggestion of an offence committed, 
 filed in the court of Queen's Bench at the instance of an individual, 
 with the leave of the court, by the master of the crown office, without 
 the intervention of a grand jury. 
 
 This, like the information ex officio (see ante, p. 108), lies for mis- 
 demeanors only, 2 Sale, 151, and not for treasons, felonies, or mis- 
 prision of treason. Although the court have it in their discretion to 
 give leave to file a criminal information of this description for any 
 misdemeanor whatever, yet they usually confine it to gross and 
 notorious misdemeanors, riots, batteries, libels, and other immorali- 
 ties of an atrocious kind, not peculiarly tending to disturb the govern- 
 ment (for those are left to the care of the attorney-general; but see 
 R. V. Harvey, 3 D. <& R. 464; i B. & C. 257), but which, on account 
 of their magnitude or pernicious example, deserve the most public 
 animadversion. Thus, for instance, they have granted a criminal 
 information for an attempt to bribe a privy councillor to obtain a 
 patent of an office under government ; R. v. Vaughan, 4 Burr. 2494 ; 
 for an attempt to bribe at an election for members to sei-ve in parlia- 
 ment; R. V. Robinson, 1 W. Bl. 541: R. v. Isherwood, 2 Ld. Ken 202: 
 R. V. Pitt, 1 W.BI.S80; 3 Burr. 1335; for bribing persons, either by 
 money or promises, to vote at elections of officers of corporations; R. 
 V. Plympton, 2 Ld. Raym. 1377; for bribery in the election of an 
 alderman, who, by virtue of his office, is a justice of the peace; R. v. 
 Steward, 2B.(S; Ad. 12; for attempting to bribe jurymen ; R. v. Toung, 
 
 2 East, 14, cit.; clerks in public offices; R. v. Beale, 1 East, 183, cit; 
 and the like. They have granted a criminal information for endea- 
 vouring to procure the appointment of certain persons to be overseers 
 of the poor, with a view to derive a private advantage to the party. 
 R. V. Joliffe, 1 East, 154, n. Where a music-master, in consideration 
 of a sum of money, assigned over his female apprentice to a gentle- 
 man, under pretence of her receiving lessons from him in music, but 
 really for the purposes of prostitution, the court upon application 
 granted a criminal information against the gentleman, the music- 
 master and the attorney who drew up the assignment. R. v. Delaval, 
 
 3 Burr. 1434: 1 W. Bl. 410, 439. They will grant a criminal infor- 
 mation also for libels reflecting on the conduct of private individuals, 
 if attended with circumstances of aggravation : see R. v. Benfield, 2 
 Burr. 980: R. v. Miles, 1 Doug. -283 : R. v. Harwell, Id. 387: R. v. Sta- 
 ples, Andr. 228: and for libels reflecting on the conduct of magistrates 
 in the execution of their duties, see R. v. Waite, 1 WiU. 22; 
 of members of parliament in the execution of their duties in parlia- 
 ment, seeR. V. Haswell, 1 Doug. 387; of persons high in office under 
 government in the execution of their several duties; of a public body, 
 
Information. Ill . 
 
 R. V. WilUams, bB.&A Id. 595, and the like. See 7 Mod. 400 ; Lofft, 
 148; 1 W. Bl. 294. But not for wcnrds imputing misconduct to a 
 magistrate in his office, unless tending to a breach of the peace, or 
 spoken to the magistrate when sitting as such. Ex parte D. of 
 Marlborough, 1 New Sees. Ca. 195. Where an order was made by a 
 corporation, and entered on their books, stating that J. S. (against 
 whom a jury had given a verdict with large damages in an action for 
 a malicious prosecution for perjury, which verdict had been confirmed 
 in the court of Common Pleas), was actuated by motives of public 
 justice, etc., in preferring the indictment, the court, deeming the order 
 to be a libel reflecting upon the administration of justice, upon appli- 
 cation granted a criminal information against the parties concerned 
 in making it. R. v. Watson, 2 T. R. 199. So, where a defendant in 
 an information, immediately before the trial, distributed handbills in 
 the assize town, vindicating his own conduct and reflecting on that 
 of the prosecutor, the court, considering the handbills to have been 
 distributed by the defendant for the purpose of influencing the jury 
 in his favour at the trial, granted a criminal information against him. 
 R. V. Jolliffe, 4 T. R. 285. So, the court granted a criminal informa- 
 tion against a person for publishing the proceedings before a coroner, 
 with comments previously to the trial, although the statement was 
 correct, and no malicious motive shown; for such publications have a 
 tendency improperly to influence the public mind, and particularly 
 the jury by whom the cause is afterwards to be tried. R. v. Fleet, 
 \ B. & Aid. 379. See R. v. Wright, 8 T. R. 293. So, an infor- 
 mation has been granted for publishing an invective against judges 
 and juries, with a view to bring into suspicion and contempt the ad- 
 ministration of justice ; R. v. White, 1 Camp. 369; and it is an ofience 
 for which an information will be granted to publish a blasphemous 
 libel, R. V. Carlile, 3 B. <£: Aid. 161, or an invective upon the esta- 
 blished religion of the country. R. v. Waddington, IB. & C. 26: R. 
 V. Owrl, 2 Sir. 789. But an information has been refused for calling 
 a magistrate a liar, and charging him with a particular misconduct 
 in his office, there being no intent to commit a breach of the peace. 
 Ex parte Chapman, A A. <& E. 773. 
 
 The court will grant a criminal information against a magistrate 
 for any illegal act committed by him from corrupt or vindictive 
 motives ; R. v. Brooke, 2 T. R. 190 : R. v. Holland, 1 T. R. 692 : R. 
 V. Hann, 3 Burr. 1716 : R. v. Williams, Id. 1317 : R. v. Cozens, 2 
 Doug. 426. See Andr. 238, 272 ; 1 Str. 21, 413 ; 1 adtty, 217 ; 2 
 Ld. Ken. 517 ; Lofft, 62 ; 1 Wils. 1 ; 1 D. & R. 485 ; 4 Mann. & R. 
 431 ; but not where he appears to have acted from ignorance or mis- 
 take merely; R. v. Jackaon, 1 T. R. 663: i?. v. Barker, I East, 186: 
 R. v. Baylis, 3 Burr. 1318 : R. v. Fielding, 2 Id. 719 ; R. v. Borron, 
 3 B. & AW. 432 : Ex parte Fentiman, 2 A. & E. 127 ; nor will they 
 grant it against justices acting in sessions, except in very flagrant 
 cases. R. v. Seaford, 1 W. Bl. 432. A rule for a criminal informa- 
 tion against a county court judge, for misconduct in his office, was 
 discharged on the ground that the applicant had made the same mis- 
 conduct the subject of a memorial to the Lord Chancellor, praying 
 for inquiry, and so had elected his remedy. R. v. Marshall, A E. & 
 B. 475 ; 24 L. J. (Q. B.) 242. See Ex parte , A A. d; E. 576, n. 
 
 So, against ministerial officers, for any act of oppression, or for any 
 illegal act committed by them in the execution of their duties, from 
 corrupt, vindictive, or other improper motives, the court will grant a 
 criminal information ; but hot where they act from ignorance or mis- 
 
112 Information. 
 
 take merely. R. v. Friar, 1 Chitty's Rep. 702. Thus, informations 
 have been granted against overseers for forcing a pauper to marry 
 another pauper then pregnant with a bastard ; R. v. Tarramt, 4 Burr. 
 2106 ; for a conspiracy by parish officers to marry persons settled in 
 different parishes, R. v. OrompUm, Cald. 246 : R. v. Herhert, 2 Ld. 
 Ken. 466, and for procuring one to marry an idiot chargeable to 
 the pai-ish ; R. v. Watson, 1 Wils. 41 ; but the court have now re- 
 solved to refuse informations in cases like these, and to leave the 
 applicant to seek his remedy by indictment. Cald. 247, n. (a) ; 2 
 Nolan, 262. 
 
 The com't have granted a criminal information against a person for 
 refusing to take upon himself the office of sheriff, because the vacancy 
 of the office occasioned an interruption of public justice, and the year 
 would be nearly expired before an indictment could be brought to 
 trial. R. v. WooOrow, 2 T. R. 731. See R. v. Grosvenor, 2 Str. 1193; 
 1 Wils. 18. 
 
 The court, however, wiU not in genei-al grant a criminal information 
 for an illegal act committed by a person under a hand fide conviction 
 that he was merely exercising a legal right ; R. v. Parleyns, 3 B. <& 
 Aid. 668; or where the application is made against a poor man 
 residing at a distance, to whom it would be very inconvenient, if not 
 impossible, to show cause against the rule, or to appear afterwards to 
 receive judgment if convicted. See R. v. Crompton, Cald. 246 ; Lofft, 
 165. They have refused it also against the members of a corporation, 
 for a misapplication of the corporation funds, it being rather a subject 
 for an application to the court of Chancery. R. v. Watson, 2 T. R. 
 199. They have refused it for the misapplication of money collected 
 on a brief, R. v. St. BotoVph, 1 W. Bl. 4Ai ; and for not collecting 
 money on a brief, R. v. Ford, 2 Str. 1130. They have also refused to 
 grant it, where it appeared that the party applying had suppressed 
 some of the material facts of the case, and misrepresented others; 
 R. V. Wrougliton, 3 Burr. 1683 ; and also where the applicant him- 
 self was not free from imputation. Lofft, 314. So, where an appli- 
 cation for a criminal infoi-mation was made for raising great sums by 
 subscription for trading purposes, as being one of those schemes 
 denounced by stat. 6 G. 1, c. 18, s. 18, the court refused to grant it, 
 as the statute had not been acted upon for a great length of time, and 
 was now sought to be enforced by a private relator, who seemed not 
 to have been deluded by the project, but to have subscribed with a 
 view to an application to the court. R. v. Dodd, 9 East, 516. See 
 R. V. Webh, 14 East, 406. So, the court refused an information for 
 sending a challenge, when it appeared that the party applying had 
 previously written letters to the other, provoking him to fight ; but 
 the court said, that, if both parties had applied for informations, they 
 would have granted them. R. v. Hankey, 1 Burr. 316. So, an 
 information has been refused, where the application was made by 
 notorious gamesters against other gamesters, for a conspiracy to cheat 
 them at a race. -ffi. v. Peach, 1 Burr. 548. Even in cases which 
 would warrant an information, if the court think that it will be suffi- 
 cient punishment for the defendant to pay the costs already incurred 
 by the prosecutor, they wiU discharge the rule nisi upon those terms, 
 if acceded to by the defendant. R. v. Morgan, 1 Doug. 314 : R. v. 
 Cozens, 2 Doug. 426. 
 
 Wlien and how to be moved for, etc.] — The .application is for a rule 
 to show cause why a criminal information should not be filed against 
 
Information. 113 
 
 the party complained of, and must be founded upon an affidavit dis- 
 closing all the material facts of the case. If the court grant the rule 
 nisi, it is afterwards, upon showing cause, discharged or made abso- 
 lute, as in ordinary cases. It may be necessary to mention that the 
 motion must he made by a barrister or serjeant ; the court will not 
 entertain the application if made by a private individual. 1 Chit. 
 Rep. 602. 
 
 It is an established rule, that no application for a criminal informa- 
 tion can be made against a magistrate for anything done in execution 
 of his office, without previous notice. R. v. Heming, b B.dAd. 666 ; 
 3 L. J. (M. C.) 3. The application must be made within a reasonable 
 time, or the delay must be satisfactorily accountedfor. The only excep- 
 tion to this seems to be the case of bribery at parliamentary elections, 
 in which it was holden that a criminal information could not be moved 
 for until after the two years had elapsed within which an action might 
 be brouglit for the penalties. See R. v. Robinson, 1 W. Bl. 541 ; sed 
 qumre. If the application be made against a magistrate for anything 
 done by him in the execution of his office, if the oifenoe were com- 
 mitted in vacation, the motion must be made in the next term, if it 
 be an issuable term, or in the second term, if the first be not an is- 
 suable term ; see R. v. Harries, 13 East, 270 : R. v. Bishop, b B. & 
 AM. 612; but if the offence were committed in term time, the appli- 
 cation may be made either in that term, or, it should seem, in the 
 next (although an assize have intervened, R. v. Saunders, lO Q. B. 
 484), particularly if there be not a sufficient number of days remain- 
 ing of the first term to allow a reasonable time for the prosecutor to 
 obtain his rule nisi and for the defendant to show cause against it. 
 The application against a magistrate, if made in the same term in 
 which the offence was committed, is allowed to be made at the latter 
 end of the term ; R. v. Smith, 1 T. R.W; if made in another term, 
 or if the offence were committed in vacation, it must be made so 
 early in the term as to aflbrd sufficient time for him to show cause 
 against it during the same term. R. v. Marshall, 13 East, 322 : R. 
 V. Smith, 7 T. R. 80. Before the court entertain an application for 
 a criminal information against a magistrate, for convicting without 
 having summoned the party, the conviction must be removed. R. v. 
 Eeher, 2 Str. 915. They have refused an information against a clergy- 
 man for perjury upon his admission to his living until after he was 
 convicted of the simony. R. v. Lewis, 1 Str. 70. Nor will they grant 
 an information for an attempt to suborn witnesses in a civil suit while 
 the action is pending, except in very clear cases. R. v. Phillips, 
 Hardw. 241. 
 
 The affidavit upon which the application is made must disclose all 
 the material facts of the case ; if a material fact be suppressed or mis- 
 represented, the court, we have seen, will discharge the rule, very 
 probably with costs. Also, as the court in these cases are in a 
 manner substituted for a grand jury, they will in general expect that 
 the facts so disclosed shall amount to such evidence as would satisfy 
 a grand jury, if an indictment was preferred for the offence. R. v. 
 Wilktt, 6 T. R. 294 : R. v. Williamson, S B. d Aid. 582. An infor- 
 mation may be granted upon the uncontradicted affidavit of one who 
 was particeps criminis, R. v. Steward, 2 B. & Ad. 12. If the subject 
 of the application be a libel upon an individual, charging him with a 
 particular offence, the court always require the prosecutor to deny the 
 charge upon oath, before they will grant the information; R. v. Miles, 
 1 Doug. 283, 284 : R. v. Haswell, Id. 387 ; but if the charge be general 
 
114 Information. 
 
 or be against a public body of men ; R. v. Williams, b B.& Aid. 695 ; 
 1 D. <b R. 197 ; or if it relate to anything said, or supposed to have 
 been said, by the prosecutor in parliament as a member, R. v. Haswell, 
 1 Doug. 387, it is otherwise. Where a criminal information was ap- 
 plied for against a magistrate, for improperly convicting a person, 
 the court refused to grant it, unless the party complaining would 
 make an exculpatory affidavit denying the charge. R. v. Webster, 3 
 T. R. 388. The affidavit upon wUch the rule nisi is moved for must 
 not be intituled in any cause ; R. v. Harrison, 6 T. R. 60 : R. v. 
 Robinson. Id. 642, cit. ; the affidavits, upon showing cause, are intituled 
 The King v. the party complained of. R. v. Jones, 2 Sir. 704. See 
 R. V. Cole, 6 T. R. 642. It may be necessary also to mention, that if 
 it be intended to file a joint information against several persons, the 
 application should be joint against all in the first instance : for, where 
 distinct rules were obtained against five persons severally, and one 
 information thereupon filed against them jointly, the court, upon ap- 
 plication, set aside the proceedings. R. v. Heydon, 3 Burr. 1270. 
 
 A rule for a criminal information was granted, and discharged 
 upon an affidavit of the truth of the charge ; subsequently it was dis- 
 covered that the affidavit in answer to the i-ule was false, and the 
 court granted another rule, which was made absolute. R. v. Eiee, 5 
 A.& E. 780. 
 
 Form of ii.] — The form of an information filed by the master of the 
 crown office is thus : — 
 
 " Trinity Term, 25 Vict. 
 
 " Middlesex : — Be it remembered, that Thomas Norton, esq., coroner 
 amd attorney of our lady the now Queen, in the court of our lady the 
 Queen, before the Queen herself, who prosecutes for our said laSf the 
 Queen in this behalf, in his proper person, comes here into the cov/rt of 
 our said lady the Queen, before the Queen herself, at Westminster, on 
 [Monday next after eight days of the Holy Trinity, in this same 
 term] , and for our said lady the Queen gives the court here to understand 
 and be informed that," etc., so proceeding to state the facts and cir- 
 cumstances constituting the ofience with the same certainty and 
 precision as in an indictment, and in the same form, and according to 
 the same rules, R. v. Wilkes, 4 Burr. 2556 : R. v. Knight, 1 Salle. 
 375, excepting that, in introducing averments, instead of the words, 
 " And the jurors aforesaid, upon their oath aforesaid, do further pre- 
 sent," are used the words, '-And the said coroner arid attorney of our 
 said lady the Queen, who prosecutes as aforesaid, further gives the court 
 here to understand and be informed that," etc. The conclusion is the 
 same as in an indictment. 
 
 The second and subsequent counts commence thus: — "And the 
 said coroner and attorney of our said lady the Queen, who prosecutes as 
 aforesaid, further gives the court here to understand and be informed 
 that," etc., so proceeding to state the oflfence, and concluding as in an 
 indictment. And to the conclusion of the last count are added these 
 words : — " And therefore the. said coroner and attorney of our said lady 
 the Queen prayeth the consideration of the court here in the premises, 
 and that due process of law may be awarded against him the said J. S. 
 in this behalf, to m/ike him answer to our said lady the Queen, touching 
 and concerning the premises aforesaid." 
 
 How filed, ete.]— After the court have made the rule absolute, the 
 information may be filed at the crown office, in the Temple, upon 
 
Information. 115 
 
 the prosecutor's entering into the usual recognizances for costs. 
 Formerly, the master of the crown office had the power of filing in- 
 formations without any control ; and, being filed in the name of the 
 King, they subjected the prosecutor to no costs, however groundless 
 they turned out to be at the trial. But some abuses of this power, 
 previously to the Revolution, caused it shortly afterwards to be 
 enacted, by stat 4 06 5 W. & M. c. 18, that the master of the crown 
 office should not thereafter file any information without express direc- 
 tion from the court of King's Bench ; and that every prosecutor, 
 permitted to promote such information, should give security by a re- 
 cognizance ot 201. conditioned to prosecute the same with effect, and 
 to pay costs to the defendant in case he be acquitted thereon, unless 
 the judge who tries the information certify that there was reasonable 
 cause for filing it; and, at all events, to pay costs, unless the informa- 
 tion shall be tried within a year after issue joined. The defendant, 
 however, upon his acquittal, is not entitled to any costs beyond the 
 extent of this recognizance. R. v. Filewood, 2 T. R. 146 ; see R. v. 
 BrooTce, 2 Id. 190. See also R. v. Savile, 18 Q. B. 703. 
 
 When the informatiom is filed, process issues to compel the appear- 
 ance of the defendant, if an appearance be not already entered for 
 him. He then either pleads to it, or applies to quash it ; and on 
 issue joined, the proceedings ai-e brought on to trial. 3 Chitt. Bum, 
 368. 
 
 In what cases quashed or stayed.'] — The court will very seldom 
 quash an information filed by the master of the crown office ; indeed, 
 in some of the books it is laid down that they will not quash it in any 
 case. See R. v. Nixon, 1 Str. 185: R.-v. Fountain, 1 Sid. 152. They 
 have, however, interfered in this manner in a very few cases, under 
 particular circumstances. See R. v. Roper, 2 Str. 1072 : R. v. Wil- 
 liams, 1 Burr. 386. If quashed on the motion of the prosecutor, it 
 must be upon payment of costs, at least to the extent of the recog- 
 nizance. Where a criminal information had been granted, and the 
 attorney-general afterwards, for the same cause, filed an information 
 ex officio, the court stayed the former until fiii-ther order. .jB. v. 
 Alexander, MS., E. T. 1830. And it seems to have been laid down 
 as a rule of practice of the court of Queen's Bench, that a person 
 who applies for a criminal information must waive his right of action 
 in that coui-t for the same cause, unless the court should, on hearing 
 the whole matter, be of opinion that it was a proper subject to be 
 tried in a civil action, and should specifically give him leave to do 
 so ; and it was said that, if an information was granted, it was of 
 course to stay the proceedings in an action for the same cause. R.Y. 
 Sparrow, 2 T. R. 198. However, where a rule for a criminal infor- 
 mation for a libel was discharged on cause shown, this was held not 
 to preclude the applicant from bringing an action in another court 
 for the publication of the same HbeL Waldey v. Cooke, 16 M. & W. 
 822; 16 L. J. (Exch.) 226. 
 
 As to costs for the defendant on a criminal information for a libel, 
 see 6 c& 7 Vict. c. 96, s. 8, post. Book II., Part II., Chap. Ill 
 
 As to a new trial, see post, Chap. V., Sect. 3. 
 
( 116 ) 
 
 CHAPTER III. 
 
 coroner's inquisition. 
 
 Coroner' B inquisition as a mode of criminal prosecution.'] — The find- 
 ing of a coroner's inquest is equivalent to the finding of a grand jury; 
 and a defendant may be prosecuted for murder or manslaughter upon 
 an inquisition, which is the record of the finding of a jury sworn to 
 inquire concerning the death of the deceased, super visum corporis. 
 Such an inquisition amounts to an indictment {R. v. Ingham, 6 B. 
 & S. 257 ; 33 L. J. (Q. B.) 183), and by Lord Cohe, and the older 
 law writers, is frequently designated by that name, and a defendant 
 is aiTaigned upon it in the same way as upon an indictment, and he 
 may plead, or take exception to it, precisely as if it had been found 
 by a grand jury. It has been the practice at assizes, where a pri- 
 soner stood charged with mm-der or manslaughter, in order to guard 
 against any failure of justice, also to prefer a bill of indictment for 
 the same offence before the grand jury; but, since the passing of 
 14 & 15 Vict. c. 100, the necessity for describing the cause of death 
 with technical nicety has ceased ; and, as the offence would now be 
 charged in the same terms in the indictment as in the inquisition, 
 there seems no longer any reason for continuing the double proceed- 
 ing. If the prisoner be charged upon an indictment, and also upon 
 an inquisition for the same offence, he may be arraigned and tried 
 at the same time upon both ; 1 East, P. C. 371. But where a de- 
 fendant, against whom a verdict of guilty has been found on the 
 coroner's inquest, and against whom also the grand juiy have found 
 a true bill, is arraigned and tried upon one only and acquitted, 
 he must afterwards be arraigned upon the other ; to which, however, 
 he may effectually plead auterfois acquit. 2 JSale, 61 ; 2 Leach, 
 1096 ; 3 Camp. 371 ; R. & R. 240 ; 4 Bla. Com. 301 ; 1 CUUy's Cr. 
 L. 163; aTid see Jervis on Coroners. 
 
 A coroner has no power to hold an inquisition respecting the origin 
 of a fire. 2 Inst. 31, 147 ; 4 Inst. 271 ; 2 Hale, 57 ; R. v. Herford, 
 SKSJE. 115; 29 L. J. (Q. B.) 249. 
 
 Authority and duty of coroner in holding inquests in cases of murder 
 and manslaughter.'] — The duty of a coroner, in cases " where any be 
 slain or suddenly dead," is pointed out with great particularity by 
 the stat. 4 Edw. 1, which, however, is merely directory, and in affirm- 
 ance of the common law, as appears by Britton, the Mirror, &c. 
 That statute, which is usually known as the stat. De Officio Coro- 
 natoris, enacts as follows : — " That the coroner, upon information, shall 
 go to the place where any be slain or suddenly dead or wounded, 
 and shall forthwith command four of the next towns, or five or six, to 
 come before him in such a place ; and when they are come thither 
 the coroner, upon the oath of them, shall inquire in this manner ; that 
 is, to wit, if they know where the person was slain, whether it were 
 in any house, field, bed, tavern, or company, and who were there. 
 Likewise it is to be inquired who were culpable, either of the act or 
 the force, and who were present, either men or women, and of what 
 
Coroner's Inquisition. 117 
 
 age soever they be (if they can speak, or have any discretion). And 
 how many soever be found culpable by inquisition in any of the man- 
 ners aforesaid, they shall be taken and delivered to the sheriff, and 
 shall be committed to the gaol. And such as be founden and be not 
 culpable shall be attached until the coming of the justices, and their 
 names shall be written in the coroner's rolls. If it fortune any such 
 man be slain, which is found in the fields, or in the woods, first it is to 
 be inquired whether he were slain in the same place or not ; and if 
 he were brought and laid there, they shall do as much as they can to 
 follow their steps that brought the body thither, whether he were 
 brought upon a horse or in a cart. It shall be inquired, also, if the 
 dead person were known, or else a stranger, and where he lay the 
 night before ; and if any be found culpable, the coroner shall imme- 
 diately go to his house, and shall inquire what goods he hath, and 
 what corn he hath in his grange, etc. And immediately upon these 
 things being inquii-ed, the bodies of such persons, being dead or 
 slain, shall be buried. In like manner it is to be inquired of them 
 that be drowned or suddenly dead; and after such bodies are to be 
 seen, whether they were drowned or slain, or strangled by sign of a 
 cord tied strait about their necks, or about any of their members, or 
 upon any hurt found upon their bodies, whereupon they shall proceed 
 in form aforesaid; and if they were not slain, then ought the coroner 
 to attach the finders and all other in company. Also all wounds 
 ought to be viewed, the length, breadth and deepness, and with what 
 weapons, and on what part of the body the wound or hurt is, and 
 how many are culpable, and how many wounds there be, and who 
 gave the wounds ; aU which things must be enrolled in the roll of 
 the coroner." 
 
 The provisions of the foi-egoing statute, as to the seizure by the 
 coroner of the goods of the person found culpable by the coroner's 
 inquest, were repealed by stat. 1 Rich. 3, c. 3 ; and the duty of the 
 coroner, as to deodands, also regulated by 4 Edw. 1, is put an end 
 to by 9 cfc 10 Vict. c. 62, abolishing deodands. 
 
 Upon the construction of the stat. 4 Edw. 1, De Officio Coronatoris, 
 it has been resolved that a coroner is bound to take his inquest upon 
 view of the dead body, and that an inquest otherwise taken is void : 
 that a coroner may inquire as well respecting accessories before the 
 fact to a murder, or respecting a principal in the second degree, 
 aiding and abetting a murder or manslaughter, as concerning the 
 actual murderer or slayer; but that he has no power to inquire con- 
 cerning accessories after the fact ; that if the dead body, whereon an 
 inquest ought to be held, be interred, or suffered to putrefy before 
 the coroner has viewed it, the township, or, if the death occuiTed in 
 a prison, the gaoler shall be amerced ; and it has been held that it 
 is an indictable offence, as a misdemeanor, to bury the body of one 
 who has met a violent death before the coroner's inquest has sat upon 
 him. In the same way, the coroner himself may be indicted, if he 
 corruptly abstain from holding an inquest where it is his duty to do 
 so. On the other hand, the holding of inquests unnecessarily is most 
 strongly censured by Lord EUenborough, C. J., S. v. Justices of Kent, 
 11 East, 229; and by 6 ^ 7 Will. 4, c. 89, the justices at quarter 
 sessions had the power of disallowing the fees of the coroner, if the 
 inquest was, in their opinion, held unnecessarily. Now, however, 
 county coroners are paid by salary, and not by fees. 23 c6-24 Vict. 
 c. 116, s. 4. A coroner, also, it has been resolved, may lawfully, within 
 a convenient time after the death, order a dead body to be disinterred 
 
118 Coroner's Inquisition. 
 
 in order to view it, not only for the purpose of taking an inquest 
 ■where none has been held before, but of taking a good inquest where 
 an insufficient one has been -taken before. For, where the first in- 
 quest was not held super visum corporis, or is afterwards quashed by 
 the court of Queen's Bench, the coroner may hold another. 2 Hawk. 
 6. 2, c. 9, s. 23; 1 Str. 532. But where an inquest has been held 
 super visum corporis, and a verdict recorded, the coroner cannot, mere 
 motu, hold a second inquest. 2 Sale, 59 ; B. v. White, 3 E. <& E. 
 137; 29 L. J. {Q. B.) 257. It may be added, that if a coroner neg- 
 lects to take an inquisition, it may be taken by the justices of gaol 
 delivery, of oyer and terminer, or of the peace. Bac. Abr., Coroner; 
 2 Haiwh. c. 9, sect. 19, et seq. 
 
 The coroner, upon receiving notice from the proper officer of a 
 violent death, as in other cases, issues his precept directed to the 
 constables and peace officers of the parish or place where the body 
 lies dead, requiriug them to summon a jury, and naming a particular 
 time and place to appear before him. The jury cannot by law con- 
 sist of less than twelve lawful persons ; and in some cases it con- 
 sists of twenty-three jurors. It seems to have been formerly held 
 that the juiy should be sworn super visum corporis; B. v. Ferrand, 3 
 B. & Aid. 260 ; Jervis on Coroners, 291 ; but it has been recently 
 decided, that it is not necessary that the jury should be sworn svper 
 visum corporis ; they maybe sworn before the view; nor need they 
 all view the body at one and the same time, nor need they all be 
 sworn at the same time. iJ. v. Ingham, 5 B. & S. 257; 33 L. J. {Q. 
 B.) 183. After a view and examination of the body, the witnesses 
 are examined upon oath. The coroner has power to require the at- 
 tendance of such witnesses as he deems necessary for the investiga- 
 tion of the truth of each case ; and by 7 <£ 8 Vict. c. 92, s. 17, it is 
 provided, that if anj' person having been duly summoned as a juror, 
 or a witness to give evidence upon any coroner's inquest, as well of 
 liberties and franchises contributing to the county rates, as of counties, 
 cities, and boroughs, shall not, after being openly called three times, 
 appear and serve as such juror, or appear and give evidence on such 
 inquest, every such coroner shall be empowered to impose such fine 
 upon every person so making default as he shall think fit, not exceed- 
 ing forty shillings. In a recent case, it was laid down by Pollock, C. B., 
 that if a coroner permit any person to make a statement before him 
 at an inquest, it must be upon oath, and if it turn out to be irrelevant, 
 then he should reject it, as he has no right to receive any statement 
 which is not made on oath; and this ruling was afterwai'ds upheld by 
 the court of Exchequer. Wakleyv. Cooke,4:Exch. 511; 19L.J.{Exeh.) 
 91. But the fact that evidence not upon oath was received by the 
 coroner is no ground for a certiorari to bring up the inquisition. R. v. 
 Ingham, b B.& S. 257. By 6 c6 7 IF. 4, c. 89, a coroner is authorized 
 to order any legally qualified medical practitioner, who may have at- 
 tended the deceased at his death, or during his last illness, or if he 
 was not BO attended, then any such practitioner in actual practice in 
 or near the place where the death happened, to attend as a witness. 
 The coroner also has power to order a post-mortem examination ; 
 and he is empowered to pay to such medical witness the fee of a 
 guinea for his attendance as a witness. The fee allowed for making 
 a post-mortem examination, and for attending to give evidence 
 thereon, is two guineas; and whenever it shall appear to the greater 
 number of the jurymen sitting at any coroner's inquest, that the 
 cause of death has not been satisfactorily explained by the evidence 
 
Coroner's Inquisition. 119 
 
 of the medical practitioner, or other witness or witnesses who may 
 be examined in the iirst instance, such greater number of the jurymen 
 are by the 2nd section authorized and empowered to name to the 
 coroner in writing any other legally qualified medical practitioner or 
 practitioners, and to require the coroner to issue his order for his or 
 their attendance as a witness or witnesses, and the coroner, in case 
 of refusal to comply with such written request, is declared to be 
 punishable as for a misdemeanor. 
 
 If an inquest on a dead body be adjourned, and on the day ap- 
 pointed the court be not formally opened and further adjourned, the 
 proceedings drop and the eom-t is dissolved, and everything after- 
 wards done in the inquest is coram nan judice and void; and this is 
 so, even where the adjournment takes place only for the purpose of 
 drawing up a formal inquisition after the jury have, in substance, 
 agi-eed upon their verdict. E. v. Payn, 34 L. J. (Q. B.) 69. 
 
 The duty of the coroner as to taking the depositions of witnesses 
 is now regulated by 7 G. 4, c. 64, s. 4 (amending and extending 1 <f 2 
 Phil. & Mary. c. 13, b. 5), which enacts that every coroner, upon any 
 inquisition before him taken, whereby any person shall be indicted 
 for manslaughter or murder, or as an accessory to murder before the 
 fact, shall put in writing the evidence given to the jury before him, 
 or as much thereof as shall be material; and shall have authority to 
 bind by recognizance all such persons as know or declare anything 
 material touching the said manslaughter or murder, or the said of- 
 fence of being accessory to murder, to appear at the next court of 
 oyer and terminer or gaol delivery, or superior criminal court of a 
 county palatine, or great sessions, at which the trial is to be, then 
 and there to prosecute or give evidence against the party charged, 
 and every such coroner shall certify and subscribe the same evidence, 
 and all such recognizances, and also the inquisition taken before him, 
 and shall deliver the same to the proper officer of the com-t in which 
 the trial is to be, before or at the opening of the court. [As to the 
 admissibility in evidence of depositions taken before coroners, see 
 post, Part //.] 
 
 Bequisites and form of inquisition in cases of murder and man- 
 slaughter.] — An inquisition consists of three parts, the caption or 
 incipitm-, the verdict of the jmy, and the attestation. It may be 
 stated generally, that the same degree of certainty that is requisite 
 in an indictment is requisite in a coroner's inquisition, and all the 
 rules relating to the description of the offence in the case of the 
 former, so far as the same are applicable, govern inquisitions. [Sec 
 ante, p. 37 et seq.'] The venue must be inserted in the margin, or in 
 the body of the caption; but it is usually inserted in both. The 
 venue should be in the county or jurisdiction within which the body 
 lies dead, and the inquisition is holden. Where the inquisition is 
 taken by the coroner of the Admiralty, no county is inserted in the 
 margin as venue, but instead of it, the words "Admiralty of England." 
 To avoid difficulty in cases where the cause of death arose within one 
 county or jurisdiction, and the body was lying dead within another 
 county or jurisdiction, it was enacted by 6 £& 7 Vict. c. 12, s. 1, that 
 the coroner only within whose jurisdiction the hody of any upon whose 
 death an inquest ought to he holden, shall he lying dead, shall hold the 
 inquest notwithstanding that the cause of death did not arise within 
 the jurisdiction of such coroner; and in the case of any body found 
 dead in the sea, or any creek, river or navigable canal within the 
 
120 Coroner's Inquisition. 
 
 flowing of the sea, where there shall be no deputy coroner for the 
 jurisdiction of the Admiralty of England, the inquest shall be holden 
 only by the coroner having jurisdiction in the place where the body 
 shaU be first brought to land. And by sect. 2 of the same statute it 
 is provided, that for the purpose of holding coroners' inquests, every 
 detached part of a county, riding or division, shall be deemed to be 
 within that county, riding, or division, by which it is whoUy sur- 
 rounded, or, where it is partly surrounded by two or more counties, 
 ridings, or divisions, within that one with which it has the longest 
 common boundary. By 14 & 16 Vict. c. 100, s. 24, it is declared that 
 no indictment (which term it is enacted by sect. 30 shall include an 
 " inquisition ") shall be held insufficient for want of a proper or per- 
 fect venue. It must appear on the face of the inquisition at what 
 place the inquest was held; but it is not necessary that the inquest 
 should be held at the place where the body lies; and it has been 
 decided that an inquest may be well held at D. upon view of a body 
 lying dead at L. 2 Hawk. c. 9, s. 25. The inquisition ought also 
 to specify the day upon which the inquest was held; if held upon a 
 Sunday, it is said that it would be void; 2 Saund. 291. But now, by 
 14 <& 15 Vict. c. 100, s. 24, no inquisition can be held insufficient for 
 omitting to state the time at which the offence was committed (where 
 time is not of the essence of the offence) or for stating the time im- 
 perfectly, or for stating the offence to have been committed subse- 
 quently to the finding of the inquisition, or on an impossible day, or 
 on a day that never happened. The inquisition must show of what 
 place the party who took it was coroner, and that he had competent 
 jurisdiction. 2 Ld. Raym. 1305. It is essential that the inquest 
 shall be taken wpm, view of the body. 2 Hawh. c. 9, s. 23. The 
 coroner can take an inquisition super visum corporis only; the view 
 being absolutely necessary to give jurisdiction to him. If the body 
 of the deceased be identified, and his christian name and surname be 
 known, or the name by which he was usually known be ascertained, 
 they ought to be correctly stated ; but if the name of the deceased be 
 unknown, he may be described as a certain person whose name is to 
 the jurors unknown. It is essential to every inquisition that it be 
 found by twelve jurors at the least; 1 Hale, 161, n.; that the inquisi- 
 tion is presented upon their oaths: and it may be remarked, that if 
 any juror has made an affirmation instead of an oath, it is not neces- 
 sary to state the fact. 6 t6 7 Vict. e. 83. It must also appear that 
 the jury are lawful persons from the county or jurisdiction within 
 which the inquest is held. 2 Hawh. c. 9, s. 22. Their names ought 
 to be inserted in the body of the inquisition, and the inquisition ought 
 to be subscribed by them with their names in full. R. v. Ekeit, 6 
 B. & a 247. 
 
 But an inquisition will not be held insufficient because a juror has 
 signed the initials of his christian name, or has set his mark to the 
 inquisition instead of subscribing his name, provided the name of such 
 juror is set forth. 6 ct- 7 Vict. c. 83, s. 3. Formerly, in cases of mur- 
 der and manslaughter the greatest care was necessary in drawing 
 the inquisition, the offence being necessarily charged with the same 
 legal certainty and precision as in an indictment, and the cause of 
 death and every circumstance being stated with the greatest particu- 
 larity; but now, by 24 <& 25 Vict. c. 100, s. 6, it is enacted that, in 
 any indictment [which word comprehends inquisitions taken before 
 coroners, B. v. Ingham, b B. & S. 257; 33 L. J. (Q. B) 183] for 
 murder or manslaughter, or for being an accessory to any murder 
 
Coroner's Inquisition. 121 
 
 or manslaughter, it shall not be necessary to set forth the manner in 
 which, or the means by which, the death of the deceased was caused, 
 but that it shall be sufficient in any indictment for murder to charge 
 that the defendant did feloniously, -wilfully, and of his malice afore- 
 thought kill and murder the deceased ; and it shall be sufficient, in 
 any indictment for manslaughter, to charge that the defendant did 
 feloniously kill and slay the deceased; and it shall be sufficient in 
 any indictment against any accessory to any murder or manslaughter 
 to charge the principal with the murder or manslaughter (as the case 
 may be) in the manner hereinbefore specified, and then to charge 
 the defendant as an accessory in the manner heretofore used and 
 accustomed. 
 
 The coroner, with his name and style of office, as well as the juiy, 
 should sign and seal the inquisition, 7 G. 4, c. 64, s. 4; 6 B. <£• C. 247. 
 It has been doubted whether it is absolutely necessaiy that the 
 inquisition should be sealed: but the stat. 6 <£■ 7 Vict. c. 83, expressly 
 excepts cases of murder and manslaughter from the provision which 
 says that no inquisition shall be held invalid by reason of its not 
 being duly sealed or written on parchment; and it has, since the 
 passing of that act, been held that an inquisition for murder or man- 
 slaughter which is on paper instead of parchment should be quashed. 
 R. V. Whalley, 7 Dowl. & L. 317; 19 L. J. {Q. B.) 14. Where the 
 inquisition is taken before a deputy coroner, the proper mode of signing 
 the attestation is " E. D. (l. s.), coroner, by E. M., his deputy dulv 
 appointed," etc. R. v. PerUn, 7 Q. B. 165; 14 L. J. (M. C.) 87. 
 
 The following form of an inquisition will now be applicable in 
 every case of murder or manslaughter: — 
 
 " Middlesex to wit : An inquisition^ indented, talcen for our sove- 
 reign lady the Queen, at the house of A. B., Imown h/ the sign of the 
 
 Red Lion (situate in street), in the parish of , in the county 
 
 of Middlesex, on the first day of May, in the twenty -fifth year of the 
 reign of our sovereign lady the Queen, before T. W., gentleman, one of 
 the coroners of our said lady the Queen for the said county, on view of 
 tlie body of John Smith, now here lying dead, upon the oaths of C. C, 
 E. P., G. H. [naming the jurors sworn], the several persons whose 
 names are hereunder loritten, and whose seals are hereunto affixed, good 
 and lawful men of the said county, duly chosen, sworn, awl charged to 
 inquire for our said lady the Queen when, how, and by what means the 
 said John Smith came to his death, who upon their oath say, that J. B. 
 
 era the day of , , the said John Umith. feloniously, wilfully 
 
 and of his malice aforethought, did hill and murder [or if it be a case 
 of manslaughter, /eZomioMsZy did kill and slay'], against the peace of our 
 lady the Queen, her crown and dignity. In vntness whereof, as well the 
 said coroner as the jurors aforesaid have hereunto set arid subscribed 
 their hands and seals, the day and year above written." [Signature and 
 seal of the coroner and each of the jurors.] 
 
 If the jury should find that any person was culpable as a principal 
 in the second degi-ee, by being present aiding and abetting the 
 murder or manslaughter, a count should be added, before the attes- 
 tation, as in the form, post. Booh II., Part IV. If they should find 
 that any person was guilty as an accessoiy before the fact to any 
 murder, add a count to the inquisition in the same way. (See forms, 
 post. Booh II., Part IV.) 
 
122 Coroner's Ijiquisition. 
 
 Process upon a coroner's inquisition.'] — When the jury have re- 
 turned a verdict of murder or manslaughter against any individual, it 
 is the duty of the coroner forthwith to commit him for trial, if he be 
 present. If the party against whom such verdict has been found be 
 not in custody, the coroner may issue his warrant for his apprehen- 
 sion, and for bringing him before himself, or taking him before some 
 justice of the peace within the jurisdiction, in order to his being so 
 committed. If the party be already in custody, the coroner is to issue 
 his detainer to the gaoler in whose custody he is. When an inquisi- 
 tion is returned to the justices of oyer and terminer or of gaol delivery, 
 if the person against whom the coroner's jury have found their verdict 
 of guilty has been taken, he is tried before them ; but if he cannot 
 be taken, the inquisition is to be certified by them into the court of 
 Queen's JBench, and process may then be awarded as upon an indict- 
 ment. [See ante, p. 78.] 4 Edw. 1, De Officio Coronatoris; 2 Hale, 
 64; 1 cutty's Crim. L. 163 ; and for all the forms of proceeding upon 
 inquests, see Jerois on Coroners. 
 
 Bail lohere the coroner has committed a party to prison.'] — The sfat. 
 11 & 12 Vict. c. 42, s. 23 (ante, pp. 86, 87), did not apply to cases of 
 commitment upon an inquisition by the warrant of a coroner, and until 
 the later statute, 22 Vict. c. 33, the only remedy of a party who was 
 advised that he ought to be bailed was by application to the court of 
 Queen's Bench, in term time, or in vacation to a judge at chambers. 
 Now, however, by the last-mentioned act, a coroner may himself admit . 
 to bail a person against whom his jury have found a verdict of man- 
 slaughter. Where they find a verdict oi murder, or where the coroner 
 refuses bail, the application must still be made to the court or a judge. 
 A writ of certiorari must be directed to the coroner, i-equiring him to 
 certify the depositions and inquisition to the court, and regularly the 
 prisoner ought to be removed into the Queen's Bench by writ of 
 haheas corpus; but in consideration of the poverty of the prisoner, or 
 other circumstances, such as distance from London, the court or judge 
 will dispense with the latter writ, and, if it be a case where the pri- 
 soner ought to be bailed, will permit bail to be taken by a magistrate 
 of the county or jurisdiction in which the prisoner is in custody. In 
 the exercise of its discretion the court is guided, not by the finding of 
 the jury, nor by the commitment, but by the facts and circumstances 
 of the case, as disclosed by the depositions ; and where the offence 
 appears to amount to no more than manslaughter, the court will in 
 general accede to the application; and even though the coroner's jury 
 have found a verdict of murder, it will look into the depositions, 
 and exercise its discretion whether the offence amounts to murder 
 or manslaughter, and refuse or accept bail accordingly. (See ante, 
 i3p.88,89.) 
 
( 123 ) 
 
 CHAPTER IV. 
 
 PLEAS, EEPIilCATIONS, ETC. 
 
 Sect. 1. Order mid Time, of Pleading, p. 123. 
 
 2. PUa to the Jurisdiction, p. 124. 
 
 3. Plea in Abatement, p. 125. 
 
 4. Demurrer, p. 126. 
 
 5. Special Pleas in Bar, p. 129. 
 
 1. Auterfois Acquit, p. 130. 
 2.< Auterfois Convict, p. 134. 
 
 3. Auterfois Attaint, p. 137. 
 
 4. Pardon, p. 137. 
 
 6. General Issue, p. 138. 
 
 Sect. 1. 
 oedee and time of pleading. 
 
 The Stat. 4 Anm, c. 16, ss. 4, 5, whicli in civil cases first allowed 
 a defendant to plead several matters, contains a proviso tliat nothing 
 therein shall extend to any indictment or presentment of treason, 
 felony, or murder, or any other matter, or to any action upon a penal 
 statute. Criminal proceedings therefore remain under the same 
 restriction -which existed at common law, and no more than one plea 
 can be pleaded to any indictment for misdemeanor or criminal in- 
 formation. R. V. Charlemorth, 1 B. & 8. 460; 31 L. J. (M. C.) 26. 
 In felonies, however, if the defendant plead in abatement, he must 
 afterwards, if the plea be adjudged against him, plead over to the 
 felony ; if he plead specially in bar, he may, (i?. v. CharleswortJi, 
 libi supra,) and should in strictness also, at the same time, plead over 
 to the felony. See post, p. 133; and B. v. Dnmj, 3 C. (& K. 200; 18 
 L. J. (M. C.) 189. 
 
 "When brought to the bar and arraigned, (see post, Gh. V.,) the pri- 
 soner either confesses the charge, stands mute of malice, or does not 
 answer directly to the charge, which may be entered as a plea of not 
 guilty ; 7 (& 8 (t. 4, c. 28, s. 2 ; or pleads to the jurisdiction or in 
 abatement — or demurs — or pleads specially in bar — or generally, that 
 he is not guilty. In addition to these several modes of pleading there 
 were formerly what were called declinatory pleas — as the plea of 
 sanctuary, and the plea of clergy. The privilege of sanctuary was 
 abolished by stat. 21 J. 1, c. 28, and the plea of clergy was, before 
 the recent statute, disused, because it was more advantageous for the 
 prisoner to pray clergy after, than to plead it before, his conviction. 
 To the prayer of clergy, in certain cases, the crown might counter- 
 plead. But now, the benefit of clergy, and also the like privilege of 
 peerage, given by the stat. 1 Edw. 6, c. 12, s. 13, are abolished, 7 c6 8 ' 
 G. 4, c. 28, «. 6 ; 4 c6 5 Vict. c. 22, and the plea and prayer, and coim- 
 terplea of clergy, are therefore no longer in use. 
 
 a'2 
 
124 Plea to the Jurisdiction. 
 
 When the defendant has any special matter to plead in abatement 
 or in bar, or if the indictment be demurrable, he should plead it, or 
 demur at the time of arraignment, before the plea of not guiltjr. See 
 R. V. Banks, 2 Smith, 620. Where a defendant prosecuted in the 
 com-t of Queen's Bench for any misdemeanor, by information or in- 
 dictment there found or removed into that court, appears in court in 
 term time in person to answer the indictment or information, he can- 
 not imparl to a following term, but must plead or demur thereto within 
 four days from the time of his appearance ; and in default of his 
 pleading or demurring within four days, judgment may be entered 
 against him for want of a plea : if he appear to the indictment by 
 attorney, he cannot imparl to the following term, but may forthwith 
 be ruled to plead ; and a plea or demurrer may be enforced, or judg- 
 ment by default entered thereupon, in the same manner as before the 
 passing of the act might have been done, had the defendant appeared 
 by his attorney in the preceding term. 60 (^. 3 <£ 1 G. 4, c. 4, s. 1. 
 But the court or a judge may, on sufficient cause, allow further time 
 to plead or demur. 60 G. S (& I G. 4, c. 4, s. 2. 
 
 Sect. 2. 
 plea to the jurisdiction. 
 
 Where an indictment is taken before a court that hath no cog- 
 nizance of the offence, the defendant may plead to the jurisdiction, 
 without answering at all to the crime alleged ; 2 Hale, 286 ; as if a 
 man be indicted for treason at the quarter sessions, or for a rape at 
 the sheriff's tourn, or the like; lb.; or if another coiu:t have exclu- 
 sive jurisdiction of the offence. 4 Bl. Com. 333. 
 
 But, although the defendant may plead to the jurisdiction in such 
 a case, there are but few instances in which he is obliged to have re- 
 course to such a plea. If the offence were committed out of the juris- 
 diction of the court, the defendant may take advantage of this matter 
 under the general issue ; R. v. Johnson, 6 East, 583 ; or, if the objec- 
 tion appear upon the face of the record, he may demur, or (it should 
 seem) move in arrest of judgment, or bring a writ of error. See R. v. 
 Hewitt, R. & R. 158. If, on the other hand, the offence were com- 
 mitted within the jurisdiction of the court, but the court has not cog- 
 nizance of it, (which can occur only in the case of indictments in 
 inferior courts, such as the court of quarter sessions,) the defendant 
 may have advantage of it upon general demurrer ; R. v. Fea'mley, 
 1 T. R. 316 ; or the court of Queen's Bench, upon the indictment 
 being removed by certiorari, will quash it ; R. v. Bainton, 2 Str. 1088 ; 
 or the court where the indictment is preferred will, in general, give 
 the defendant advantage of the objection at the trial, under the 
 general issue. As pleas to the jurisdiction, therefore, seldom occur, 
 it is not necessary to treat of them here at length. The form of them 
 is thus : — 
 
 " And the said J. S. in his ovm proper person cometh into court liere, 
 and having heard the said indictment read, saith, that the court of our 
 lady the Queen here ought not to take cognizance of the [trespass and 
 assault] in the said indictment above specified; because protesting that 
 he is not guilty of the same, neoertheless the said J. S. saith, that," [etc., 
 
Plea in Alatement. 125 
 
 so proceeding to state the matter of the plea. See the precedents, 
 1 Went. 10, 18 ; 4 Went. 63. Conclude thus] : " And this he the said 
 J. S. is ready to verify; wherefore he prays judgment if the said court 
 of our lady the Queen now here will or ought to take cognizance of the 
 indictment aforesaid; and that by the court here he may be dismissed 
 and discharged" etc. Then add profert of any letters patent which 
 may have been set forth in the plea. The form is the same in the 
 Queen's Bench, excepting that the court is described as " the court of 
 our said lady the Queen before the Queen herself here;" and, in the case 
 of informations, the "words, " having heard the said indictment read," 
 are omitted. The plea must be verified by affidavit. 
 
 The form of the replication to this plea is thus : — " And hereupon 
 J. N. [the clerk of the peace, or clerk of the arraigns], who prosecutes 
 for our said lady the Queen in this behalf says, that notwithstanding 
 am/thing by the said J. S. above in pleading alleged, this court ought 
 not to be precluded from taking cognizance of the indictment aforesaid ; 
 because he says that," [etc., stating the matter of the replication]. 
 " And this he the said J. N. prays may be inquired of by the cowntry," 
 etc. Or, if it conclude -with a verification, then thus: — ^'- And this 
 he the said J. N. is ready to verify; wherefore he prays judgment, 
 and that the said J. S. may answer to the said indictment." Where 
 the plea is pleaded in the court of Queen's Bench, the replication is 
 in the name of the master of the crown office, in the case of an in- 
 dictment or of an information filed by him ; or in the name of the 
 attorney-general, in the case of informations ex officio. See post, 
 Sect. 5 of this chapter. 
 
 Sect. 3. 
 
 plea in abatement. 
 
 If the indictment assign to the defendant no christian name, or a 
 wrong one, no surname, or a wrong one, this is still, strictly speaking, 
 matter for a plea in abatement. Misnomer was the only case in 
 which, before the statute 7 G. 4, c. 64, s. 19, a plea in abatement was 
 at all usual in practice, and that statute, although it did not abrogate 
 the rule of law which requires that the defendant should be described 
 by his christian name and surname, and did not in terms repeal the 
 Statute of Additions, 1 H. 5, c. 5, has entirely superseded every ad- 
 vantage formerly derived from that form of plea, by enacting that no 
 indictment or information shall be abated by reason of any dilatory 
 plea of misnomer, or of want of addition, or of wrong addition of the 
 party ofiering such plea, if the court shall be satisfied, by affidavit, 
 or otherwise, of the truth of such plea ; but in such case the court 
 shall forthwith cause the indictment or information to be amended 
 according to the truth, and call upon the party to plead thereto, and 
 proceed as if no such dilatory plea had been pleaded. (See ante,p. 38.) 
 See also 14 & 15 Vict. c. 100, s. 1. The 24th section of the latter act 
 has got rid of all objection by way of mi.snomer, on the ground of 
 want of addition or wrong addition, by enacting that no indictment 
 shall be holden insufficient for want of or imperfection in the addi- 
 tion of any defendant. {See ante, p. 38.) 
 
 It is apprehended, however, that these statutes do not afifect the 
 right of a peer, when indicted as a commoner, to plead in abatement 
 
126 Demurrer. 
 
 of an indictment for felony; for his title is not only part of his name, 
 but gives him a different mode of trial, viz. by his peers. 
 
 The judgment for the Queen upon a plea of abatement, in misde- 
 meanors, is final ; in treason and felony, that the defendant do answer 
 over. R. v. Cribson, 8 East, 107. The judgment for the defendant 
 was formerly that the indictment be quashed, but now, as we have 
 seen, the indictment may be amended, and the defendant called to 
 plead thereto, as if no such dilatory plea had been pleaded. 
 
 Sect. 4. 
 
 demureee. 
 
 Dbmueeees in criminal cases have hitherto seldom occurred in 
 practice; because, before the statute 7 G. 4,' c. 64, ss. 20, 21, the 
 defendant might have had the same advantage upon the plea of not 
 guilty, or by motion in arrest of judgment, that he could have had 
 upon demurrer. But that statute made a most material alteration in 
 the law in this respect, by enacting (s. 20), " that no judgment upon 
 any indictment or information for any felony or misdemeanor, whether 
 after verdict or outlawry, or by confession, default or otherwise, shall 
 be stayed or reversed for want of the averment of any matter unneces- 
 sary to be proved, nor for the omission of the words ' as appears by the 
 record,' or of the words ' with force and arms,' or of the words ' against 
 the peace,' nor for the insertion of the words ' against the form of the. 
 statute,' instead of the words ' against the form of the statutes,' or 
 vice versa; nor for that any person or persons mentioned in the in- 
 dictment or information is or are designated by a name of office or 
 other descriptive appellation instead of his, her or their proper name 
 or names ; nor for omitting to state the time at which the offence was 
 committed, in any case where time is not of the essence of the offence; 
 nor for stating the time imperfectly ; nor for stating the offence to 
 have been committed on a day subsequent to the finding of the indict- 
 ment or exhibiting the information, or on an impossible day, or on a 
 day that never happened; nor for want of a proper or perfect venue, 
 where the court shall appear by the indictment or information to 
 have had jurisdiction over the offence ;" and («. 21), " that where the 
 offence charged has been created by any statute, or subjected to a 
 greater degree of punishment, or excluded from the benefit of clergy 
 by any statute, the indictment or information shall, after verdict, be 
 held sufficient to warrant the punishment prescribed by the statute, if 
 it describe the offence in the words of the statute." It is observable 
 that this enactment applies only to felonies and misdemeanors, whether 
 prosecuted by indictment or information, and that it does not extend 
 to informations in the crown office, other than for misdemeanors, or 
 to coroners' inquisitions. (But similar provisions were made with 
 respect to coroners' inquisitions, by the 6 <6 7 Vict. c. 83.) The 
 consequence of these enactments was, that, by pleading over, all 
 these objections were waived ; but they continued equally fatal if taken 
 by demurrer, until the passing of the recent statute 14 & 15 Vict. c. 
 100, the 24tli section of which, enumerating the several defects men- 
 tioned in the 20th section of the 7 G. 4, c. 64, and also the following:— 
 " want of a proper or formal conclusion — want of or imperfection in the 
 addition of any defendant — want of the statement of the value or price 
 
Demurrer. 127 
 
 of any matter or thing, or the amount of damage, injury or Spoil, in any 
 case where the value or price, or the amount of damage, injury or spoil, 
 is not of the essence of the offence," enacts that no indictment shall 
 for any of these defects be held insufficient ; they are now, therefore, 
 altogether immaterial. And the 25th section further enacts, that 
 every objection to any indictment for any formal defect apparent on 
 the face thereof shall be taken, by demurrer or motion to quash the 
 indictment, before the jury shall be sworn, and not afterwards ; and 
 every court before which such objection shall be taken for any formal 
 defect may, if it be thought necessary, cause the indictment to be 
 forthwith amended in such particular by some officer of the court or 
 other person, and thereupon the trial shall proceed as if no such 
 defect had appeared. Where a prisoner in a case of felony had, in 
 his counsel's absence, pleaded to an indictment which was objection- 
 able on demurrer, the judge, on the counsel's application, allowed 
 him to demur, before the evidence was gone into. R. v. Purchase, 
 C. & Mar. 617. But this would not be permitted in order to take 
 advantage of a mere verbal objection. B. v. Odgers, 2 Jf . <6 Rob. 
 479. If the defendant succeed upon demurrer, the judgment is not 
 stayed or reversed, but, on the contrary, is given in his favour ; and 
 the words " whether after verdict or outlawry, or by confession, 
 default or otherwise," do not extend the meaning of the 7 G. 4, c. 64, 
 s. 20, beyond those cases in which the application is to stay or reverse 
 the judgment. The following are forms of demurrers and join- 
 ders : — 
 
 Demurrer to an Indictment or Information. 
 
 " And tJie said J. S. in his oion proper person Cometh into court here, 
 and, having heard the said indictment [or informationl read, saiih, that 
 the said iiidictment [or information'] and the matters therein contained, 
 in manner and form as the same are above stated and set forth, are not 
 sufficient in law, and that he the said J. S. is not bound by the law of 
 the land to answer the same; and this he is ready to verify : wherefore, 
 for want of a sufficient indictment [or informMicyri] in this behalf, the 
 said J. S. prays judgment, and that by the court he may be dismissed 
 and discharged from the said premises in the said indictment [or infor- 
 matiori] specified. 
 
 Joinder. 
 
 " And 3. N., who prosecutes for our said lady the Queen in this 
 hehalf, saith, that the said indictment and the matters therein contained, 
 in manner and form as the same are above stated and set forth, are 
 sfufficient in law to compel the said J. S. to answer the same; and the 
 said J. N., who prosecutes as aforesaid, is ready to verify and prove the 
 same, as the court here shall direct cund award: wherefore, inasmuch as 
 the said J. S. hath not answered to the said indictment, nor hitherto in, 
 any m/inner denied the same, the said J. N., for our said lady the 
 Queen, prays judgment, and that the said J. S. may be convicted of the 
 premises in the said indictment specified." The like form, mutatis 
 mutandis, may be adopted in the case of informations, and of indict- 
 ments in the court of Queen's Bench. 
 
 Demurrer to a Plea in Bar. 
 
 " And 3. N., who prosecutes for our said lady the Queen in this 
 hehalf, as to the said plea of the said 3. S. by him ahone pleaded, saith 
 
128 ' Demwrrer. 
 
 that the same, and the matters therein contained, in manner and form as 
 the same are above pleaded and set forth, are not sufficient in law to har 
 or preclude our said lady the Queen from prosecuting the said indict- 
 ment against him the said J. S. ; amd that our said lady the Queen is 
 not bound by the law of the land to answer the same; and this he the 
 said J. N., who prosecutes as aforesaid, is ready to verify : wherefore, 
 for want of a sufficient plea in this behalf, he the said J. N., for our 
 said lady the Queen, prays judgment, and that the said J. S. may be 
 convicted of the premises in the said indictment specified." The like 
 form, mutatis mutandis, may be adopted in the case of inform ationsj 
 and of indictments in the court of Queen's Bench. A demurrer to a 
 plea in abatement is in the same form, except that it concludes with 
 praying "judgment, and that the said indictmentmay be adjudged good, 
 and that the said J. S. may furtlier answer thereto" etc. 
 
 Joinder, 
 
 " And the said J. S. saith, that his said plea by him above pleaded 
 and the matters therein contained, in manner and form as the same are 
 above pleaded and set forth, are sufficient in law to bar and preclude 
 our said lady the Queen from prosecuting the said indictment against 
 him the said J. S. ; and the said J. S. is ready to verify and prove the 
 same, as the said court here shall direct and award : wherefore, inas- 
 much as the said J. N.,/o»- our said lady the Queen, hath not answered 
 the said plea, nor hitherto in amy manner denied the same, the said J. S. 
 pray s judgment, and that by the court here he may be dismissed and 
 discharged from the said premises in the said indictment specijled." 
 The joinder is the same, if the demurrer be to a plea in abatement, 
 except that it concludes ■with praying '■'■judgment, amd that the said 
 indictment may be quashed," etc. 
 
 A demurrer, on the part either of the crown or of the defendant, 
 has the effect of laying open to the court not only the pleading de- 
 murred to, but the entire record, for their judgment upon it as to the 
 matter of law ; Hob. 56 ; 1 Sawnd. 284, n. 5 ; and if two or more of 
 the pleadings be bad in substance, the court will give judgment 
 against the party who committed the first fault. Thus, for instance, 
 if the indictment be bad, there shall be judgment for the defendant, 
 although the bar be also insufficient; Pigot's case, 6 Co. 29a; or 
 even if it appear upon the face of the record that the court have no 
 jurisdiction of the offence charged in the indictment, the defendant 
 may take advantage of this matter upon the demurrer. R. v. Feam- 
 ley, 1 T. R. 316. 
 
 The judgment tor the defendant upon demurrer is, that he be dis- 
 missed and discharged from the premises. The judgment against 
 the defendant in misdemeanors is the same as on demurrer in civil 
 cases ; R. v. Taylor, b D. & R. 422 ; ^ B. & C. 502, 612 ; and the 
 court has the same power of permitting the defendant afterwards to 
 plead over. R. v. Birmingham and Gloucester Railway Co., 3 Q. 
 B. 224; 10 L. J. (M. C.) 136. But demurrers in felonies have 
 hitherto been of such rare occurrence, that it has been doubted what 
 judgment ought to be pronounced against the defendant. The older 
 authorities went to show it to be final ; 2 Hawk. c. 31, o. 5 ; but by 
 some this was questioned, and it was said that, in favorem vitm, the 
 defendant should plead over to the felony. Id. s' 6 ; 2 Hale, 225, 
 257 ; 4 Bl. Com. 334 : R. v. Taylor, h D. & B. 422 ; i B. & C. 502, 
 
Special Pleas in Bar. 129 
 
 612 : R. V. Gibson, 8 East, 107 : see R. v. Pwrcliase, C. & Mar. 617 : 
 R. V. Bowen, 1 C. & K. 504. In R. v. Duffy, 2 Coa;, 45, which was 
 an indictment for a felony not capital, the judges sitting on the 
 commission of oyer and terminer in Dublin agreed that the defendant 
 was entitled to plead over to the felony, after judgment against him 
 on demurrer to the indictment. In some cases it has been ruled, 
 indeed, that the defendant, in felony, may demur and plead over to 
 the indictment at the same time; R. v. Phelps, C. & Mar. 181 : R. 
 V. Adams, Id. 299 ; but this was denied to be law in R. v. Odgers, 
 2 M. <& Rob. 479. And now, in R. v. Faderman, 1 Dm. 569, the law 
 has been settled to be, that on general demurrer to an indictment 
 for felony, the judgment for the crown is final ; though in the case 
 of a demurrer of a special nature (usually called a demurrer in 
 abatement), it might be othenvise. 
 
 An information may be amended after demurrer ; R. v. Holland, 
 4 T. R. Abl : R. v. Wilkes, 4 Burr. 2568. An indictment, which 
 is a iinding upon the oaths of the grand jury, could only be amended 
 with their consent before they were discharged, 2 Hawk. c. 25, ss. 97, 
 98, until the statute 14 <& 15 Vict. c. 100. 
 
 The judgment given against a prisoner on demurrer to an indict- 
 ment cannot be reviewed by the court for the consideration of Crown 
 Cases Reserved, established under 11 & 12 Vict. c. 78; R. v. Fader- 
 man, 1 Den. 665; 19 L. J. {M. C.) 147. 
 
 Sect. 5. 
 
 special pleas in bar. 
 
 As all matters of excuse and justification maybe given in evidence 
 under the general issue, a special plea in bar seldom occurs in prac- 
 tice ; in fact, the only instance (with the exception of the pleas of 
 auterfois acquit, etc., which shall be treated of in the several divisions 
 of this section) in which a special plea in bar seems requisite in cri- 
 minal cases is, where a parish or county is indicted for not repairing 
 a, road or bridge, etc., and wishes to throw the onus of repairing 
 upon some person or persons not bound of common right to repair 
 it ; in which case they must plead specially the liability of the party 
 to repair, aud the reason of his liability, so as to take the ease out of 
 the common law rule, that every highway shall be repaired by the 
 parish, and eveiy bridge by the county in which it is situate. See 
 precedents of such pleas, post. Book II., Chap. V., Sect. 2. The 
 following are the forms of special pleas in bai', replications, and 
 rejoinders : — 
 
 Special Pleas. 
 "And the said J. S. in his ovm proper person cometh into court here, 
 and, having heard the said indictment [or information'] read, saith, that 
 our said lady the Queen ought not further to prosecute the said indict- 
 ment against him the said J. S. ; because he saith, that," [etc., so pro- 
 ceeding to state the matter of the plea : and concluding thus] : " ^red 
 ihis he the said J. S. is ready to verify ; wherefore he prays judgment, 
 and that by the court here he may be dismissed and disiharged from the 
 -said pn-emises in the said indictment above specified." 
 
 Replication. 
 " And Jiereupon J. N. [the clerk of the peace or clerk of the 
 g5 
 
130 Special Pleas in Bar. 
 
 arraigns], who prosecutes for our said lady the Queen in this lehalf, 
 says, that, by reason of anything in the said plea of the said J. S. above 
 pleaded in bar alleged, our said lady the Queen ought not to be pre- 
 cluded from prosecuting the said indictment against the said J. S. ; 
 because he says that," [etc., so proceeding to state the matter of the 
 replication, and concluding thus] : " And this the said J. N. prays 
 may be inquired of by the country." [Or, if it conclude with a veri- 
 fication, then thus:] "And this he the said J. N. is ready to verify; 
 wJierefore he prays judgment, and that the said J. S. may be convicted 
 of the premises in the said indictment above specified." 
 
 When the plea is to an indictment in the court of Queen's Bench, 
 the replication commences thus : " And hereupon Thomas Norton, 
 esquire, coroner and attorney of our said lady the Queen, in the court of 
 our said lady the Queen, before the' Queen herself, who prosecutes for 
 our said lady the Queen in this behalf, says, that, by reason of," etc. : 
 and the conclusion thus : " And this the said coroner and attorney of 
 our said lady the Queen prays," etc., as above. Where the plea is 
 pleaded to an information, the replication is thus : " And the said 
 attorney-general [or coroner and attorney'] of our said lady the Queen, 
 who prosecutes as aforesaid, says, that by reason of" etc. " And this the 
 said attorney-general [or coroner and attorney'] of our said lady tlte 
 Queen prays," etc., as above. 
 
 If the replication conclude to the country, the similiter is then 
 added, in making up the record : " And the said J. S. doth the like. 
 Therefore let a jury come," etc., so proceeding with the award of 
 the venire. But if the replication conclude with a verification, the 
 defendant must then rejoin. 
 
 Rejoinder. 
 
 " And the said J. S., as to the said replication of the said J. N. to 
 the said plea by him the said J. S., saith, that our lady the Queen, by 
 reason of anything 'by the said J. N. in that replication alleged, ougM 
 not further to prosecute the said indictment against him, the said J. S. ; 
 because he saith, that," [etc., so proceeding to state the matter of the 
 rejoinder ; and concluding thus] : " And of this he the said J. B. puis 
 himself upon the country." Or, if it be necessary to conclude with 
 a verification, the conclusion may be in the same form as in a plea. 
 (Ante, p. 129.) 
 
 Having thus given the forms of special pleas, etc. generally, we 
 shall now proceed to treat of those which usually occur in practice, 
 in this order : 
 
 1. Auterfois Acquit, p. 130. 
 
 2. Auterfois Convict, p. 134. 
 
 3. Auterfois Attaint, p. 137. 
 
 4. Pardon, p. 137. 
 
 1. Auterfois Acquit. 
 
 When a man is indicted for an ofience, and acquitted, he cannot 
 afterwards be indicted for the same ofience, provided the first indict- 
 ment were such that he could have been lawfully convicted on it ; 
 and if he be thus indicted a second time, he may plead auterfois 
 acquit, and it will be a good bar to the indictment. The true test by 
 which the question, whether such a plea is a sufficient bar in any 
 
Special Pleas in Bar. 131 
 
 particular case, may be ti-ied is, whether the evidence necessary to 
 support the second indictment would have been sufficient to procure 
 a legal conviction upon the first. R. v. Clark, 1 Brod. & B. 473. 
 See also R. v. Emden, 9 East, 437 : R. v. Sheen, IC.&P. 634 : R. 
 V. Bird, 2 Den. 94; 20 L. J. (M. C.) 70: B. v. Drury, 3 C. (& K. 
 193; 1HL.J.(M. C.) 189. 
 
 Thus, an acquittal upon an indictment for burglary and larceny 
 may be pleaded to an indictment for a larceny of the same goods: 
 because, upon the former indictment the defendant might have been 
 convicted of the larceny. But if the first indictment were for a 
 burglary, with intent to commit a larceny, and did not charge an 
 actual larceny, an acquittal on it would not be a bar to a subsequent 
 indictment for the larceny; 2 Hale, 245; R. v. Vandercomb, 2 Leach, 
 716; because the defendant could not have been convicted of the 
 larceny on the first indictment. An acquittal upon an indictment 
 for murder may be pleaded in bar of another indictment for man- 
 slaughter; Fast. 392 ; 2 Hale, 246; because the defendant might be 
 convicted of the manslaughter on the first indictment. So, an ac- 
 quittal upon an indictment for manslaughter is, it seems, a bar to an 
 indictment for murder. i^Tasi. 229; 3 Co. 466: Holcroft's case,2 Hale, 
 246 ; 1 Stark. 305. Now, also, a person cannot, after being acquitted 
 on an indictment for felony, be indicted for an attempt to commit 
 it, for he might have been convicted for the attempt on the previous 
 indictment for the felony, 14 (& 15 Viet. c. 100, s. 9. So, also, a 
 person indicted and acquitted on an indictment for robbery, cannot 
 afterwards be indicted for an assault with intent to commit it ; 24 
 <6 25 Vict. c. 96, «. 41; a person indicted and acquitted for a misde- 
 meanor, which upon the trial appears to be a felony, cannot after- 
 wards be indicted for the felony; 14 <£• 15 Vict. c. 100, s. 12; a person 
 indicted and acquitted for embezzlement cannot afterwards be in- 
 dicted as for a larceny; or if tried and acquitted for a larceny, cannot 
 afterwards be indicted as for embezzlement, upon evidence of the 
 same facts ; 24 c6 25 Vict. c. 96, s. 72: B. v. GorhuU, Dears. & B. 
 166; 26 L. J. (M. C.) 47; or if a man be indicted in any manner for 
 receiving stolen goods, he cannot afterwards be prosecuted again 
 for the same offence. 24 & 25 Vict. c. 96, s. 91 ; see ss. 92, 93, 94. 
 This rule is equally applicable, though the first indictment be against 
 the defendant jointly with others, and the second against him alone ; 
 for upon the second indictment he may be convicted of an offence 
 committed by him separately or jointly with others ; and the plea 
 avers the identity of the offence charged in both the indictments. 
 B. Y. Dann, 1 Mood. C. C. 424. An acquittal by a competent juris- 
 diction abroad is a bar to an indictment for the same offence before 
 any other tribunal, ij. v. Hutchinson, 1 Leach, 135; Bull. N. P. 245. 
 But in this case the defendant should produce an exemplification of 
 the record of his acquittal under the public seal of that state or 
 kingdom where he has been tried and acquitted. Hutchinson's 
 case, 3 Keh. 785; and see Beak v. Thyrwhit, 3 Mod. 194; 1 Slww. 6; 
 Bull. N. P. 245: R. v. Roche, 1 Leach, 134. Even an erroneous 
 acquittal standing unreversed, is a sufllcient foundation for this plea. 
 9 H. b,fo. 2, pi. 7; 2 Inst. 318, 319; 2 Hale, 247: R. v. Dmry, 3 C. 
 &K.nO; 18L.J.{M. C) 189. 
 
 But an acquittal upon an indictment in a wrong county cannot be 
 pleaded to a subsequent indictment for the offence in another county. 
 Com._ Dig. Indictment (£.): R. v. Welsh, 1 Mood. C. C. 175. An 
 acquittal on an indictment for larceny is no bar to an indictment for 
 
132 Special Pleas in Bar. 
 
 the same offence charged as a false pretence, notwithstanding the" 
 proviso in stat. 24 (& 25 Vict. c. 96, s. 88. R. v. Henderson, C. & Mar. 
 328. An acquittal as accessory (the defendant being so indicted) 
 would be no bar to an indictment as principal, and e converso. 2 Bale, 
 244; Fast. 361; 2 Hawk. c. 35, s. 11: -ffi. v. Parry, 1 C. & P. 836. 
 Where, therefore, to an indictment charging the defendant as an ac- 
 cessory before the fact to child mm-der, he pleaded auterfois acquit 
 upon an indictment charging him with having been present aiding 
 and abetting in the said murder, the judges held that the plea was 
 no bar, and had been properly overruled at the trial. R. v. Birch- 
 enough, 1 Mood. C. C. 477; 1 C.&P. bib. So, an acquittal (or judg- 
 ment for the defendant on demurrer, R. v. Richmond, 1 C. & K. 240) 
 upon an insufficient indictment, is no bar to another indictment for 
 the same offence. Vaux's case, 4 Co. 45 a. Where the defendant 
 was indicted for forging a wUl, which was set out in the indictment 
 thus : " /, John Styles," etc., and was acquitted for variance, the will 
 given in evidence commencing " John Styles " without the "7," — it 
 was holden that he could not plead this acquittal in bar of another 
 indictment, reciting the will correctly, " John Styles," etc. R. v. 
 Coogan, 1 Leach, 448. So, where to an indictment for keeping a 
 gaming-house, tempore G. 4, the defendant pleaded that, at the ses- 
 sions, 4 ff. 4, he was indicted for keeping a gaming-house on the 18th 
 January, 57 G. 3, and on divers other days and times between that 
 day and the taking of the inquisition, against the peace of our lord 
 the said king, with an averment that the offence in both indictments 
 was the same, — it was holden no bar, because the contra pacem tied 
 the prosecutor to pi-oof of an offence in the reign of G. 3, the only 
 king named in the indictment. R. v. Taylor, 3 B. c& C. 502. An 
 insolvent debtor, who had been indicted for omitting goods out of his 
 schedule and acquitted, afterwards pleaded auterfois acquit to another 
 indictment for omitting other goods out of the same schedule ; and 
 Patteson, J., held, that the plea was no bar to the second indictment, 
 but said that such a course ought not to be adopted except under 
 very peculiar circumstances. R. v. Champneys, 2M.& Roh. 26. And 
 generally it may be laid down, that whenever, by reason of some 
 defect in the record, either in the indictment, the place of trial, the 
 process, or the like, the defendant was not lawfully liable to suffer 
 judgment for the offences charged against him in the first indictment 
 as it stood at the time of its finding, he has not been «» jeopardy, in 
 the sense which entitles him to plead the former acquittal (or con- 
 viction) in bar of a subsequent indictment. R. v. Drury, 3 C. S K. 
 190; 18 L. J. (M. C.) 189: R. v. Green, Dears. & B. 113; 26 L. J. 
 {M. C.) 17. 
 
 The 14 (& 15 Viet. c. 100, s. 28, enacts, that " in any plea of auter- 
 fois convict or auterfois acquit, it shall be sufficient for any defendant 
 to state that he has been lawfiilly convicted or acquitted, as the case 
 may be, of the offence charged in the indictment." 
 
 The following is the form of the plea of auterfois acquit : — 
 
 " And the said 3. S. in his own proper person cometh into court here, 
 and having heard the said indictment read, saith, that owr said lady the, 
 Qaeen ought not further to prosecute the said indictment against the said 
 J. S. ; because he saith, that heretofore, to wit, at the general quarter 
 
 sessions of the peace holden at , in and for the county of , he 
 
 the said J. ^. was lawfully acquitted of the said offence charged in the 
 said indictment. And this he the said J. S. is ready to verify; where- 
 
Special Pleas in Bar. 133 
 
 fore M prays judgment, and that hy the court here he may ie dismissed 
 and discharged from the said premises in the present indictment spe- 
 cified." The plea ought properly to be on parchment, signed by 
 counsel: the court, however, will not reject the plea because it is in- 
 ~ formal, but will assign counsel to prepare it in a proper form for the 
 defendant. E. v. Chamberlain, & C. & P. 93. 
 
 If the indictment be for felony or treason, the defendant, besides 
 this plea of auterfois acquit, should also plead over to the felony, etc. 
 R. V. Vandercomb, 2 Leach, 712: R. v. Drury , ante, p. 132. In such 
 a case, therefore, continue the plea thus: ^^ And as to the felony and 
 larceny of which the said J. S. nmo stands indicted, he the said J. S. 
 saith, that he is not guilty thereof; and of this he the said .J. S. puts 
 himself upon the country." If, however, the defendant pleads auter- 
 fois acquit, without pleading over to the felony, after his special plea 
 is found against him, he may still plead over to the felony. 2 Hawk, 
 c. 23, s. 128 : R. v. Sheen, 2 C. <& P. 634 : E. v. Welsh, MS. 1828 ; 
 Car. Sup. 56. 
 
 In the case of a plea of auterfois acquit, a jury are sworn instanter 
 to try the issue ; R. v. Scott, 1 Leach, 404 ; and therefore there is no 
 replication actually pleaded upon the part of the crown. But see 
 2 C. & P. 635. But a replication and similiter must be entered 
 upon the record, when afterwards made up. The form may be 
 thus: — 
 
 " And hereupon A. B. [the clerk of the peace, or clerk of arraigns], 
 who prosecutes for our said lady the Queen in this behalf, says, that, by 
 reason of anything in the said plea of the said J. S. above pleaded in 
 bar alleged, our said lady the Queen ought 'not to be precluded from, 
 prosecuting the said indictment against the said J. S. ; because he says, 
 that the said J. S. was not lawfully acquitted of the said offence charged 
 in the said indictment, in manner andform as the said J. S. hath above 
 in his said plea alleged; and this he the said A. B. prays may be 
 inquired of by the country. And the said J. S. doth the like. There-, 
 fore let ajwry come," etc. 
 
 The proof of the issue lies on the defendant. To prove it, the 
 record of the former acquittal must be made up ; and formerly the 
 record itself, or an examined copy of it, must have been given in 
 evidence ; R. v. Bovmian, G C. & P. 101, 337 ; except where the 
 second indictment was preferred at the same assizes, in which case 
 the original indictment and minutes of the verdict are receivable in 
 evidence in support of the plea, without a record being drawn up. 
 R. V. Parry, 1 C. (& P. 836. But now, by stat. 14 eg 15 Vict. c. 99, 
 s. 13 (after reciting that it is expedient, as far as possible, to reduce 
 the expense attendant upon the proof of criminal proceedings), it is 
 enacted, that whenever in any proceeding, whatever it may be, it shall 
 be necessary to prove the trial and conviction or acquittal of any 
 person charged with any indictable offence, it shall not be necessary 
 to produce the record of the conviction or acquittal of such person, 
 or a copy thereof; but it shall be sufficient that it be certified, or 
 purport to be certified under the hand of the clerk of the court, or 
 other officer having, the custody of the records of the court where 
 such conviction or acquittal took place, or by the deputy of such clerk 
 or other officer, that the paper produced is a copy of the record of the 
 
13i Special Pleas in Bar. 
 
 indictment, trial, conviction, and judgment or acquittal, as the case 
 may be, omitting the formal parts thereof. 
 
 If there be a variance between the former record and the present 
 indictment, in the description of the offence, it may be made good by 
 evidence showing in substance that the proofs necessary to support 
 the present indictment would have been sufficient to convict the 
 prisoner upon the former. 
 
 If the former trial was at the quarter sessions, the court of Queen's 
 Bench will, if necessary, grant a mandamus to the justices to make 
 up the record. R. v. Justices of Middlesex, 5 B. (& Ad, 1113; 3 L.J. 
 (Jf. C.) 32. 
 
 The judgment against the defendant on this plea, in felonies, is 
 respondeat ouster; or rather, as the defendant generally pleads over 
 to the felony at the same time with the issue in the plea of auterfois 
 acquit, the jury are charged again to inquire of the second issue, and 
 the trial proceeds as if no special plea in bar had been pleaded. B. 
 v. Vandercomb, 2 Leach, 708 : jB. v. Coogan, 1 Leach, 448 : R. v. 
 Sheen, 2 C. <fe P. 634. In misdemeanors the judgment is final. R. v. 
 Goddard, 2 Ld. Raym. 922 ; 2 Hale, 256. "When the plea is al- 
 lowed, the judgment is that the defendant shall go without day, and 
 he is altogether discharged from the prosecution. 2 Hale, 391. See 
 1 Deacon, 90. The verdict for the defendant, upon the issue on 
 the plea of auterfois acquit, cannot, it seems, be set aside, and a new 
 trial had, although without evidence and against the opinion of the 
 judge. B. V. Lea, 2 Mood. C. C. 9. 
 
 2. Auterfois Convict., 
 
 Formerly, a man convicted of a clergyable felony, and who had 
 prayed the benefit of clergy, might plead such conviction and prayer 
 of clergy in bar of any subsequent indictment, either for the felony 
 of which he was convicted, or for any other clergyable felony com- 
 mitted by him previously to his conviction. See stat. 25 Edw. 3, c. 5; 
 8 Eliz. c. 4 ; 18 Eliz. c. 7 ; 2 Hawk. c. 36 : B. v. Jennings, B. & B. 
 388; 1 Stark. 311. See T & % G. 4, c. 28, s. 6. By stat. 6 G. 4, 
 c. 25, s. 4, the benefit of the allowance of clergy was restricted to the 
 individual charge upon which it was allowed ; and now, a previous 
 conviction can only be pleaded in bar of any subsequent indictment 
 for the felony of which the defendant has previously been convicted. 
 See 4 Bl. Com. 336 ; 2 Hale, 251 : Vaux^s case, 4 Co. 45 a. A plea 
 of auterfois convict, which shows that the judgment on the former 
 indictment has been reversed for error in the judgment, is not a good 
 bar to another indictment for the same offence. B. v. Drwry, 3 C. 
 d K. 190; 18 L. J. (M. C.) 189. 
 
 The same rules apply generally to this plea as to the plea of auter- 
 fois acquit. « 
 
 Analogous to the defences of auterfois acquit and auterfois convict, 
 is the defence that the defendant has before been convicted or dis- 
 charged under the stat. 24 & 25 Vict. c. 100, ss. 44, 45. The 44th 
 section enacts, that if the justices on the hearing of any case of 
 assault or battery upon the merits, where the complaint was preferred 
 by or on the behalf of the party aggrieved, under either of the last 
 two preceding sections {ss. 42, 43), shall deem the offence not to be 
 proved, or shall find the assault or battery to have been justified, or 
 so trifling as not to merit any punishment, and shall accordingly 
 dismiss the complaint, they shall forthwith (j. e. forthwith on the 
 
Special Pleas in Bar. 135 
 
 application of the defendant, who has a right to it ex debito justitiw ; 
 Hancock v. Somes, 1 E. & E. 795 ; 28 L. J. (M. C) 196 : Costar v. 
 Hetherington, \ E. & E. 802 ; 28 L. J. (U. C.) 198 : oven-uling B. v. 
 EoUnson, 12 A. & E. 672; 4 P. ^ -D. 391; 10 L. J. {M. C.) 9, 
 where it was held that the certificate must be given before the jus- 
 tices separated) make out a certificate under their hands, stating the 
 fact of such dismissal, and shall deliver the certificate to the party 
 against whom the complaint was preferred. By s. 45, if any person 
 against whom any such complaint, as in either of the last three 
 preceding sections mentioned, shall have been preferred by^ or on 
 behalf of the party aggrieved, shall have obtained such certificate ; 
 or, having been convicted, shall have paid the whole amount adjudged 
 to be paid, or shall have suffered the imprisonment, or imprisonment 
 with hard labour, awarded, in every such case he shall be released 
 from all further or other proceedings, civil or criminal, for the 
 same cause. But by s. 46, the justices are prohibited from adjudi- 
 cating on any assault or battery which they shall find to have been 
 accompanied by any attempt to commit felony, or which they shall 
 think, from any other circumstance, to be a fit subject for prose- 
 cution by indictment, or ia which any question arises as to the 
 title to land, etc., or as to any bankruptcy, insolvency, or execu- 
 tion. This defence must be specially pleaded. The form of the 
 plea may be as follows : — 
 
 " And the said J. S. in his ovm proper person cometh into court here, 
 and having heard the said indictment read, saith, that our said lady the 
 Queen ought not further to prosecute the said indictment against him 
 the said J. S. in respect of the offemce in the said indictment mentioned, 
 
 hecause he saith that heretofore, to wit, oh the day of , in the 
 
 year of our Lord , at the parish of in the comity of , he 
 
 the said J. S. was, upon the complaint of the said J. N., etc. [reciting 
 the information before the magistrates in the past tense] , convicted 
 "before the said A. B., clerh, and the said C. D., esquire, two of her 
 Majesty's justices of the peace in and for the said comity, for that he 
 the said J. S. did, on, etc., at, etc., unh/wfully assault and heat the said 
 J. N., in the peace of ow said lady the Queen then and there being con- 
 trary to the statute in that case made and provided; and the said justices 
 did then o/nd there a^udge the said J. S./or his said offence to forfeit 
 and pay the sum of bl. of lawful money of Great Britain; and, in de- 
 fault of immediate payment of the said sum of 61. hy the said J. S. as 
 aforesaid, they the said justices did adjudge the said J. S. to he im- 
 prisoned in the house of correction for the said coimty for the space of 
 two calendar months, vmless the said sum of bl. should he sooner paid; 
 a/nd the said justices did direct that the said sum of bl. should he paid 
 
 to E. F., one of the overseers of the poor of the parish of aforesaid, 
 
 in which parish the said offence was committed, to he hy him applied 
 according to the directions of the statute in that case made and pro- 
 vided; as hy the record of the said conviction more fully and at large 
 appears; which said judgment and conviction still remains in full force 
 and effect, and not in the least reversed or made void. And the said 
 J. S.fiwther saith, that the assault and hattery of the said J. N., of 
 which he the said J. S. was so convicted as aforesaid, and the wounding 
 of the said J. N. in the said indictment mentioned, are one amd the same 
 assault and hattery, amd not other amd different. And he the said J. S. 
 further saith, that he the said J. S. hath duly paid the whole amount of 
 tlie said sxi/m ofbl. so adjudged by the said justices to he paid vmder the 
 
136 Special Pleas in Bar. 
 
 said conviction as aforesaid to the said E. P., etc., being such overseer 
 
 of the said parish of as aforesaid. And this he the said J. S. is 
 
 ready to verify; wherefore heprays judgment if our said lady the Queen 
 ought further to prosecute the said indictment against Mm the said J. S. 
 in respect of the said offence in the said indictment mentioned, and that 
 he the said J. S. mxiy be dismissed and discharged from the same. And 
 as to the felony aforesaid in the said indictment mentioned, the said J. S. 
 saith that he is not guilty thereof, and thereof he puts himself upon the 
 country," etc. If the complaint was dismissed by the justices, the 
 plea must be framed accordingly. 
 
 Where to an action for an assault the defendant pleaded that he 
 had been summoned by the plaintiff before a metropolitan police 
 magistrate, who convicted him in the costs of the complaint and 
 hearing, which the defendant had paid ; and at the trial the magisr 
 trate's clerk produced his note book, by which it appeared that the 
 magistrate had merely ordered the defendant to enter into his recog- 
 nizances and pay the expense thereof, and the clerk also said that in 
 such cases no conviction was ever drawn up: it was held that the 
 plea was bad, and disclosed no defeneje under 24 & 25 Vict. c. 100, s. 
 45; that it was not proved, and that, even if there were a conviction, 
 the proper proof was not adduced. Hartley v. Hindmarsh, L. B., 1 
 a p. 553; 35 L. J. {M. C.) 255. 
 
 The replication may be as follows: — ^^ And hereupon A. B. [the 
 clerk of the peace, or clerk of arraigns.] who prosecutes for our said 
 lady the Queen in this behalf, says, that by reason of anything in the 
 said plea of the said J. S. above pleaded in bar alleged, our said lady 
 the Queen ought not to be precluded from prosecuting the said indictment 
 against the said J. S.; because he says that there is not any record of 
 the said supposed conviction, in manner and form as the said . J. S. hath 
 above in his said plea alleged; and this he the said A. B. prays may 
 be inquired of by the coimtry," etc. In the case of a dismissal of the 
 complaint by the justices, the replication should traverse the fact of 
 the granting of the certificate. See S. v. Robinson, 12 A. <& E. 
 672; 4 Per. & D. 391 ; 10 L. J. (if. C.) 9: R. v. Walher, 2 M. d: 
 Rob. 446. It was decided in the latter case, that a plea of a 
 conviction or acquittal under the 9 (?. 4, c. 31, ss. 27, 28, of which > 
 the 24 <fc 25 Vict. c. 100, ss. 44, 45, are in substance a re-enactment, 
 is a bar to an indictment for a felonious stabbing, etc., in the same 
 transaction ; for the justices are to determine whether the assault was 
 accompanied by any felonious transaction, and their 'decision on 
 that point is final. B. v. Stanton, 5 Coo;, 324, ace. And a plea of a 
 dismissal of the complaint by the justices under the 9 G. 4, c. 31, ss. 
 27, 28, is a bar to an indictment for unlawfully wounding, and for an 
 assault occasioning actual bodily harm, arising out of the same cir- 
 cumstances. R. V. Elrington, 1 B. d; S. 688; 31 L. J. {M. C.) 14; 
 but a summary conviction for assault under 24 & 25 Vict. c. 100, s. 
 42, is not a bar to a subsequent indictment for manslaughter upon 
 the death of the man assaulted, consequent upon the same assault. 
 R. V. Morns, L. R, 1 C. C. R. 90; 36 L. J. (M. C.) 84. The pro- 
 duction of the certificate is of itself sufficient evidence of the dismissal 
 by the justices, without proof of their signature or official character; 
 8 (fe 9 Vict. c. 113, 5. 1; and if the defendant appeared before the 
 justices, the recital in the certificate of the fact of a complaint having 
 been made, and of a summons having been issued, is sufficient evi- 
 
Special Pleas in Bar. 137 
 
 dence of those facts, without producing the complaint or summons. 
 R. V. Westley, 11 Cox, 139. Where the first count of an indictment 
 charged the defendant with assaulting the prosecutor and inflicting 
 upon him grievous bodily harm, and the second charged him with 
 an assault upon the prosecutor occasioning actual bodily harm, and 
 the defendant pleaded one plea only (instead of a plea to each count), 
 setting up a dismissal of the charge by the justice, and it appeared 
 upon the trial that there had only been in fact one assault on the day 
 named in the indictment, and that that assault and the one named in 
 the plea took place on the same day, it was held that the plea was a 
 good answer to the whole indictment. M. v. Westley, 11 Cox, 139. 
 
 In like manner, the act for the speedy trial and punishment of 
 juvenile offenders, 10 <£ 11 Vict. c. 82, which empowers two justices 
 summarily to convict persons not above fourteen years of age of 
 simple larceny, and to dismiss the accused altogether (giving a cer- 
 tificate of the fact of dismissal), if they deem it expedient not to 
 inflict any punishment, contains a proviso, in s. 3, that " eveiy person 
 who shall have obtained such certificate of dismissal as aforesaid, and 
 every person who shall have been convicted under the authority of 
 this act, shall be released from all further or other proceedings for 
 the same cause." 
 
 3. Auter/ois Attaint. 
 
 Before the stat. 7 c6 8 (?. 4, c. 28, s. 4, if a man were attainted 
 of treason or felony, whilst the attainder remained in force he 
 could not, with certain exceptions, be indicted for another felony, 
 whether such other felony were committed before or after his at- 
 tainder ; because, being already attainted, and therefore dead in con- 
 templation of law, and his property forfeited, a prosecution for any 
 other offence was considered useless. But now attainder is no bar, 
 unless for the same offence as that charged in the indictment, 7 <£• 8 
 G. 4, c. 28, s. 4, and in effect the plea of auterfois attaint is at an end. 
 4 Bl. Com. 337, n. 
 
 The same rules apply to this plea as to the plea of auterfois 
 acquit, with respect to the pleading and production of the record, 
 the averments of identity, and the proceedings on the plea at the 
 trial. 
 
 4. Pardon. 
 
 A pardon may be pleaded in bar to the indictment ; or, after ver- 
 dict, in arrest of judgment ; or, after judgment, in bar of execution. 
 But it must be observed, that it is necessary to plead it at the first 
 opportunity the defendant may have of so doing ; if, for instance, he 
 have obtained a pardon before arraignment, and, instead of pleading 
 it in bar, he plead the general issue, he shall be deemed to have waived 
 the benefit of it, and cannot afterwai'ds avail himself of it in arrest 
 of judgment. M. v. Norris, 1 Moll. Rep. 297; 2 Keb. 25. What lias 
 now been mentioned, however, relates to the Queen's pardon only ; 
 for a statute pardon need not be pleaded. Post. 43 ; Staundf. 103 a ; 
 3 Inst. 234 ; Plowd. 83, 84, unless there be exceptions in it ; 2 Hale, 
 252; 3 Inst. 334; nor can the defendant lose the benefit of it by his 
 own laches or negligence. 
 
 Formerly pardon could only be pleaded under the great seal; Lord 
 Warwitk's case, 13 St. Tr. 1015 : R. v. Gully, 1 Leach, 98 : Bull v. 
 Tilt, lB.dP.19Q: see R. v. Beaton, 1 W. Bl. 479: R. v. Miller, 
 2 W. Bl. 799 : Bullock v. Dodds, 2 B. & Aid. 258 ; in which case the 
 
138 General Issue. 
 
 letters patent are set out with profert, and the plea concludes thus: — 
 " By reason of which said letters patent, the said J. S. prays thai hy 
 the court here he may he dismissed and discharged from the said pre- 
 mises in the said indictment specified." But now, in the case of a free 
 or conditional pardon, under the Queen's sign manual, countersigned 
 by one of the secretaries of state, the discharge of the offender from 
 custody in the former case, or the performance of the condition in 
 the latter, has the effect of a pardon under the great seal as to the 
 felony for which the pardon is granted, but will not prevent or miti- 
 gate the punishment in any subsequent conviction for any felony 
 committed after the granting any such pardon. 7 S 8 G. i, c. 28, 
 s. 13. See 6 G. 4, c. 25, s. 1 ; 9 6?. 4, c. 32, «. 3 : B. v. Harrod, 2 C. 
 & K. 294. K there be any variance in the description of the offence 
 or party between the pardon and the indictment, it may be made 
 good in the plea, by averments of identity, in the same manner as in 
 the plea given ante, p. 135. 
 
 Sect. 6. 
 
 general issue. 
 
 The general issue is pleaded by the prisoner viva voce at the bar, 
 in these words, " not guilty ;" by which plea, without further form, 
 every person not having privilege of peerage, upon being arraigned 
 upon any indictment for treason, felony, or piracy, is deemed to have 
 put himself upon the country for trial. 7 cfc 8 6r. 4, c. 28, s. 1. And 
 if any person being arraigned upon, or charged with any indictment 
 or information for treason, felony, piracy, or misdemeanor, shall stand 
 mute of malice, or will not answer directly to the indictment or in- 
 formation, the court may order the proper oflScer to enter a plea of 
 " not guilty" on behalf of such person ; and the plea so entered shall 
 have the same force and effect as if such person had actually pleaded 
 the same. 7 (6 8 G. 4, c. 28, s. 2. A prisoner who had been pre- 
 viously tried and convicted, but whose trial was deemed a nullity on 
 account of some informality in swearing the witnesses, was again 
 arraigned upon an indictment for the same offence, and i-efused to 
 plead, alleging that he had been already tried ; Littledale, J., and 
 Vaughan, B., ordered a plea of not guilty to be entered for him under 
 this section. R. v. Bitton, 6 C. S P. 92. A person deaf and dumb 
 was to be tried for a felony : the judge ordered a juiy to be impanelled, 
 to try whether he was mute by the visitation of God; the jury found' 
 that he was so : they were then sworn to try whether he was able to 
 plead, which they found in the affirmative, and the defendant by a 
 sign pleaded not guilty: the judge then ordered the jury to be im- 
 panelled to try whether the defendant was now sane or not, and, on 
 this question, directed them to say whether the defendant had suffi- 
 cient intellect to understand the course of the proceedings, to make a 
 proper defence, to challenge the jurors and comprehend the details of 
 the evidence, and that if they thought he had not, they should find 
 him of non-sane mind. JR. v. Pritchard, 7 C. <& P. 303. When the 
 record is made up, the general issue appears upon it thus : — ".4mZ he 
 the said J. S., forthuiith being demanded concerning the premises in the 
 said indictment above specified and charged upon him, how he will 
 acquit himself thereof, saith, that he is not guilty thereof." And the 
 similiter is then added thus : ^'■And J. N. [the clerk of the peace, or 
 
General Issue. 139 
 
 clerk of an-aigns], wlio prosecutes for our said lady the Queen in this 
 hehalf, doth the like. Therefore let a jury come" etc., so proceeding 
 Trith the award of tlie venire. Where a prisoner has pleaded guilty 
 to a charge of felony, and sentence has been passed upon him, he 
 cannot afterwards retract his plea and plead not guilty. R. v. Sell, 
 % C.&P. 346. 
 
 In informations, and in indictments for not repairing roads and 
 bridges, etc., where the defendant is allowed, ex gratia, to appear by 
 attorney, the general issue is regularly ingrossed, and filed with the 
 proper officer, it is in form thus : " And the said J. S., hy A. B. his 
 attorney, cometli into court here, and, having heard the same indictment 
 [or informationl read, saith, that he is not guilty of the said premises 
 in the said indictment [or information] above specified and charged 
 upon him; and of this the said J. S. puts himself upon the country." 
 Afterwards, in making up the record, the similiter is added thus : 
 " And J. N., who prosecutes for our said lady the Queen in this hehalf, 
 doth the like," if it be pleaded to an indictment at the assizes, or 
 sessions ; but if to an indictment in the Queen's Bench, then thus : 
 " And Christopher Rohinson, esquire, coroner and attorney of our said 
 lady the Queen, in the court of our said lady the Queen hefore the 
 Queen herself, who prosecutes for our said lady the Queen in this hehalf 
 doth the like;" or if to an information, then thus: ^^ And the said 
 attorney-general [or coroner and attorney'] of our said lady the Queen, 
 who prosecutes as aforesaid for our said lady the Queen, doth the 
 like." 
 
 The general issue makes it incumbent upon the prosecutor to 
 prove every fact and circumstance constituting the offence as stated 
 in the indictment or information. On the other hand, the defendant 
 may give in evidence, under this plea, not only everything which 
 negatives the allegations in the indictment, but also all matter of 
 excuse and justification. 
 
( 140 ) 
 
 CHAPTER V. 
 
 TKIAL, JUDGMENT, NEW TRIAL, WEIT OF EREOR, ETC. 
 
 Sect. 1. Trial, p. 140. 
 
 2. Verdict and Judgment, p. 163. 
 
 3. New Trial, p. 177. 
 
 4. Court for Crown Cases Reserved, p. 181. 
 
 5. Writ of Error, Tp. 186. 
 
 Sect. 1. 
 
 TRIAL. 
 
 Arraignment.'] — The arraignment of prisoners, against whom true 
 bills for indictable offences have been found by the grand jury, con- 
 sists of tliree parts ; first, calling the prisoner to the bar by name; 
 secondly, reading the indictment to him ; thirdly, asking him whether 
 he be guilty or not of the offence charged. It was formerly the prac- 
 tice to require the prisoner to hold up his hand, the more completely 
 to identify him as the person named in the indictment, but the cere- 
 mony, which was never essentially necessary, is now disused ; and the 
 ancient form of asking him how he will be tried is also obsolete. The 
 prisoner is to be brought to the bar without irons, shackles, or other 
 restraint, unless there be danger of escape ; and ought to be used with 
 all the humanity and gentleness which is consistent with the nature of 
 the thing, and under no terror or uneasiness other than what proceeds 
 from a sense of his guilt or the misfortune of his present circumstances. 
 2 Hawk. c. 28, s. 1. In Layer's case, 6 St. Tr. 230, a distinction was 
 taken between the time of arraignment and the time of trial, and the 
 prisoner was obliged to stand at the bar in irons during his arraign- 
 ment; but the ruling in that case is at variance with the authority of 
 all the expositors of the common law. The Mirror, c. 6, s. 1, (54), 
 says, " It is an abuse that a prisoner is laden with irons, or put to pain 
 before attainted of felony." Britton, c. 6, fo. 14, says, " If felons 
 come in judgment to answer, etc., they shall be out of irons and all 
 manner of bonds, so that their pain shall not take away any manner 
 of reason, nor constrain them to answer but at their free will." See 
 also 3 Inst. 34, where Lord Coke cites Bracton, I. 3, /. 137; Staundf. 
 P. C. 78; and a decision of the judges, 8 Edw.2; also Hale's Sum. 
 212. Formerly, if a defendant wished to plead auterfois acquit, he 
 was entitled to have the indictment so slowly read that he might take 
 it down, and so state it correctly in his plea — the prisoner, in cases of 
 treason or felony, by the common law, not being entitled to a copy 
 of the indictment ; but now the stat. 14 & 15 Vict. c. 100, s. 28, 
 renders it unnecessary to say anythine more in a plea of auterfois 
 acquit,tha,n that the prisoner was heretofore lawfully acquitted of the 
 offence charged ; and it is a constant practice for the courts in all 
 
Trial. 141 
 
 cases where the prisoner's counsel deems it material to the defence 
 of the prisoner, as a favour, to allow a copy of the indictment, or of 
 such parts of it as may be necessary for him to examine. If the 
 prisoner be charged upon an indictment and also upon an inquisition 
 for the same offence, he may be arraigned and tried at the same time 
 upon both; 1 East, P. C. 371; and where several defendants are 
 charged in the same indictment, they ought all to be arraigned at 
 the same time. Kel. 9. As soon as the indictment has been read to 
 the prisoner, the clerk of the arraigns or officer of the court demands 
 of him, — How say you, Are you guilty or not guilty? If the prisoner 
 pleads guilty, and it appears to the satisfaction of the judge that he 
 rightly comprehends the effect of his plea, his confession is recorded, 
 and sentence is forthwith passed, or he is removed from the bar to 
 be again brought up for judgment. The course of proceediog where 
 the defendant pleads to the jurisdiction, pleads in abatement, pleads 
 specially, or raises an issue in law by demurrer, has been already 
 folly explained. [Ante, Chap. JT.] If the prisoner, when called 
 upon, stands mute of malice, or will not answer directly, the court 
 may, as we have seen (ante, p. 138), order the proper officer to enter 
 a plea of not guilty; 7 <fi 8 Geo. 4, c. 28, s. 2 ; but formerly the con- 
 sequences of standing obstinately mute in cases of felony, were for- 
 feiture of goods, and peine forte et dure; Sale's Sum. 227 ; and by 
 12 Geo. 3, c. 20, judgment as in a plea of guilty. Where it is a 
 matter of doubt whether or not a prisoner be mute of malice, the 
 court may direct the jury to be forthwith impanelled and sworn, to 
 try whether the prisoner be mute of malice, or ex msitatione Dei, and 
 such jury may consist of any twelve men who may happen to be 
 present. The form of the oath to the jury in such a case may be as 
 follows: — " Tou shall well and truly try whether A. B., the prisoner at 
 the har who stands charged loith felony, is mute of malice, or by the 
 visitation of God, and a true verdict give according to the evidence : so 
 help you God." If a person be found to be mute ex visitatione Dei, 
 the court in its discretion will use such means as may be sufficient 
 to enable the prisoner to understand the charge and make his answer; 
 and if this be found impracticable, a plea of not guilty should be 
 entered and the trial proceed. 1 Chit. Grim. L. 417. See the case 
 of a deaf person, who could not be induced to plead ; R. v. Steel, 1 
 Leach, C. C. 451; of a person deaf and dumb; M. v. Jones, 1 Leach, 
 C. C. 102 : R. Y. Pritchard, 1 C.&P. 303, infra; and see 1 Russ. on 
 Orimss, 6, n. The stat. 39 d 40 G. 3, c. 94, s. 2, extended by 3 «fe 4 
 Vict. c. 54, s. 3, provides, that if any person indicted for any offence 
 shall be insane, and shall upon arraignment be found so to be by a 
 jury lawfully impanelled for that purpose, so that such person can- 
 not be tried upon such indictment, it shall be lawful for the court 
 before whom any such person shall be brought to be an-aigned, to 
 direct such finding to be recorded, and thereupon to order such person 
 to be kept in strict custody until her Majesty's pleasure shall be 
 known. The form of oath to be administered to the jury to try 
 whether a prisoner refusing to plead be non compos or not, is the 
 following: — " Tou shall diligently inquire and true presentment make 
 for and on hehalf of our sovereign lady the Queen whether A. B., the 
 defendamt who stands indicted for a misdemeanor, he insane or not, and 
 a true verdict give according to the best of your understanding : so help 
 you God." In the case of R. v. Goode, 1 A. & E. 536, where the 
 prisoner was tried at bar in the Queen's Bench for using seditious 
 language against the Queen in her presence, it was held that the jury 
 
142 Trial. 
 
 might form their own opinion as to the state of the prisoner's mind 
 when arraigned, from his demeanor during the inquest, without any 
 evidence being given on the subject : but under ordinary circum- 
 stances it is usual for the judges to require some evidence as to the 
 prisoner's then state of mind. Where a prisoner appeared to be 
 deaf, dumb, and also of non-sane mind, Alderson, B., put three dis- 
 tinct issues to the jury, directing the jury to be sworn separately on 
 each: 1. Whether the prisoner was mute of malice or by the visita- 
 tion of God: 2. Whether he was able to plead : 3. Whether he was 
 sane or not : and on the last issue they were directed to inquire 
 whether the prisoner was of sufficient intellect to comprehend the 
 course of the proceedings on the trial, so as to make a proper de- 
 fence, to challenge a juror he might wish to object to, and to under- 
 stand the details of the evidence. R. v. Pritchard, 7 C. & P. 303. 
 And in the case of R. v. Wheeler, Central Criminal Court, May 12, 
 1852, where the prisoner was indicted for the murder of his mother, 
 and on his arraignment said he was " not guilty/' Piatt, B., on the 
 motion of the prisoner's counsel, directed the jury to be sworn to 
 inquire whether the prisoner was in a fit state of mind to plead to 
 the indictment, and it appearing from the evidence that the prisoner 
 seemed to understand the nature of the crime for which he was in- 
 dicted, but that he seemed unable to understand the distinction be- 
 tween a plea of "guilty" and of "not guilty," the jury, at the sug- 
 gestion of the learned judge, returned a verdict that the prisoner was 
 of unsound mind and incompetent to plead. From the earliest times 
 it has been the law, that where a prisoner, though he may have been 
 perfectly sane when he committed the ofience for which he was 
 indicted, was found to be insane at the time of arraignment, he 
 shall not be arraigned for it, for he is not in full possession of his 
 senses, so as to be capable of pleading to the indictment with due 
 caution, or doing what is necessary for his defence. 4 Bla. Com. 24. 
 [As to the proceedings on the trial of a person non compos, see ante, 
 pp. 18, 21.] Where the jury are sworn in the nature of an inquest of 
 office, to inquire whether or not a prisoner is sufficiently sane to 
 plead to the indictment, the court directs the finding to be recorded; 
 and the following is the form of the record of the finding : — 
 
 Middlesex: — Tlie Queen against J. G. — The defendamt 
 brought here into court, in the custody of the keeper of heir Majesty's 
 gaol of Nenjogate, by virtue of a writ of habeas corpus, it is ordered 
 that tlie said writ and the return made thereto be filed; amd the said 
 defendant is now here in court arraigned upon the indictment fownd 
 against him in this cawrt for certain misdemeanors, in speahing and 
 publishing certain scandalous and seditious words of and concerning our 
 sovereign lady the Queen, and is ashed by the cmirt here whether he be 
 guilty of the premises cha/rged upon him by the said indictment or not. 
 Whereupon the said defendant doth refuse to answer to the said indict^ 
 inent; and it appearing to this court that the said, defendant may be 
 insane, so that he cannot be tried wpon the said indictment: therrfore, 
 on the prayer of Sir William Atherton, Imight, her Majesty^s attorney- 
 general, it is ordered that a jury in this behalf do immediately come 
 lure into court, to try and inquire for and on behalf of ow sovereign 
 lady the Queen, whether the said defendant be insane or not. And 
 immediately thereupon, a jury being impanelled and returned for that 
 purpose by the sheriff of the said county of Middlesex, come here into 
 court, and being elected, tried, and sworn to speak the truth touching 
 
Trial. 143 
 
 and concerning the premises aforesaid, say upon their oath that the said 
 defendant is insane. And the said attorney-general, for and on behalf of 
 our said sovereign lady the Queen, prays the said court here that the 
 finding of the said jury may be recorded. It is thereupon ordered by 
 the said court here, that the said finding of the said jury be recorded, 
 and that the said defendant be kept in strict custody in the said gaol 
 until her Majesty^ s pleasure in the 'premises shall be Jcnovm. And the 
 said defendant is now here in court re-committed to the custody of the 
 keeper: of the said gaol, to be by him kept in strict custody vjntil her 
 Majesty's pleasure shall be known. On the motion of the attorney- 
 general; By the court. 
 
 The mode of arraigning prisoners, where an indictment contains a 
 charge, under 7 S 8 G. i, c. 28, s. 11, of a prerious conviction for 
 felony, was not altered by 14 db 15 Vict. e. 19, s. 9, (repealed by 
 24 (6 26 Vict. c. 96,) defining the time of charging the jury with the 
 count for the previous conviction ; and is explained by the court to 
 be, first, to arraign the prisoner ore the whole indictment, and afterwards 
 to give him in charge to the jury on the subsequent felony only. S. 
 V. Key, 2 Den. 347 ; 21 L. J. {M. C.) 35: R. v. Shuttleworth, 2 Den. 
 351 ; 21 L. J. (M. C.) 36. The mode of arraigning a prisoner, how- 
 ever, on an indictment for committing any offence punishable under 
 the Larceny Act (24 (& 25 Vict. c. 96), after a previous conviction is, 
 in the first instance, to arraign him upon so much only of the indict- 
 ment as charges the subsequent offence, and if he pleads not guilty, to 
 charge the jury, in the first instance, to inquire concerning such 
 subsequent offence only (s. 116). A similar course is to be pursued 
 where the prisoner is indicted for an offence against the Coin Act 
 (24 <£• 25 Vict. c. 99), after a previous conviction (s. 37). [See post, 
 Bk. II., Part V.^ 
 
 If the defendant pleads " not guilty," his plea is recorded by the 
 officer of the court ; either by writing the words " po. se," an abbre- 
 viation of the words ponit se super patriam, or, as at the Central 
 Criminal Court, by the word " puts," and by an entry in the minute 
 book of the Court, see R. v. Newman, 2 Den. 392; 21 L. J. (M. G) 
 76, 76. 
 
 It may be necessary to add, that no trial for felony can be had ex- 
 cept in the presence of the prisoner; though it seems that a charge 
 of misdemeanor may be tried, although the accused be not present, if 
 he have previously pleaded. 8 Crim. L. Rep. 143. 
 
 Where a defendant has been arrested abroad, under the Colonial 
 Arrest Act, 6 <§ 7 Vict. c. 91, for one offence, as to which the grand 
 jury ignore the bQl, he may be arraigned and tried for another offence. 
 R. V. Philips, IF.SF. 105. 
 
 Defence in forma pauperis.^ — It is provided by the statute 11 H. 7, 
 c. 12, that every poor person, having cause of action or suit, shall 
 have a writ original or subpoena, without paying for sealing or writing 
 the same, and that the chancellor shall assign clerks to write, and 
 counsel the attorney for the same, without taking reward ; and that 
 so shall the justices of the Ring's Bench and Common Bench, the 
 barons of the exchequer, and all other justices in courts of record 
 where such suit shall be. This enactment applies as well to criminal 
 as to ciiiil cases : Com. Dig., Forma Pauperis. Where, therefore, it 
 appears that a poor person is not worth five pounds after all his debts 
 
144 Trial 
 
 are paid, except his wearing apparel, he may be allowed to appear 
 and defend himself in the Queen's Bench against an indictment in 
 forma, pauperis, without paying the usual fees to the officers of the 
 court. R. V. Wright, 2 Str. 1041. So a woman indicted by her hus- 
 band for a misdemeanor has been .admitted to defend in formd pau- 
 peris ; Com. Dig., Forma Pauperis; and a person convicted of per- 
 jury and outlawed for forgery, has been admitted to plead the king's 
 pardon as a pauper. R. v. Morgan, 2 Stra. 1214. A prisoner against 
 whom a bill of indictment was found for felony, which was removed 
 into the King's Bench by certiorari, was allowed to appear and defend 
 there in forma pauperis; R. v. Page, 1 Dowl. 507 : R. v. Sims. Tidds 
 N. Prac. 64 ; and this course is allowed even where the indictment 
 has been removed by certiorari at the instance of the defendant him- 
 self. R. v. Nicholson, 8 Dowl. P. C. 489. In the case of R. v. Stokes, 
 1 Den. 307 ; S C. (& K. 189, where the prisoner was convicted at 
 the assizes, an application was made, on petition and affidavit, to 
 Parhe, B., at chambers, for leave to sue out a writ of error in forma 
 pauperis; that learned judge intimated that he had never known a 
 writ of error under such circumstances, though he was by no means 
 prepared to say that it could not be granted ; ultimately the case was 
 argued as a crown case reserved. It seems, however, that the court 
 may admit persons to sue in forma pauperis at any time. Com. Dig., 
 Forma Pauperis. The petition to be admitted to defend an indict- 
 ment as a pauper may be in the following form : — 
 
 " To the Right Hon. Sir Alexander James Ed/mund CocJcbum, Bart., 
 Lord Chief Justice of her Majesty's court of Queen's Bench, and the 
 rest of the Honourable Justices of the same court: The humble petition 
 of A B., etc., showeth. That at a session of oyer and terminer and gaol 
 delivery, holden for the jurisdiction of the Central Criminal Court, in 
 the month of December, 1857, an indictment for perjury was preferred 
 against your petitioner, which indictment was, by the grand jury then, 
 and there, found to be a true bill; and that in Hilary term last the 
 said indictment was removed by writ of certiorari into the court of 
 Queen's Bench ; but your petitioner being very poor, is utterly unable 
 to defend himself against the said indictment, imthout an order from this 
 honourable court to enable him to defend the same in form^ pauperis, 
 your petitioner not being worth Jive pounds in the world besides his wear- 
 ing apparel, and all his just debts being paid. Your petitioner therefore 
 humbly prays your lordships will be pleased to admit him a pauper^ to 
 defend the said indictment : And your petitioner shall ever pray," etc. 
 
 The affidavit to verify the foregoing petition may be as follows : — 
 
 " In the Q. B. — The Queen on the prosecution of A. B. against C. D. 
 ■^I, C. D., the above-named defendant, make oath and say, that I am 
 not worth five pounds in the world, save and except my wearing apparel. 
 Sworn, etc. C. D." 
 
 This petition is usually presented to a judge at chambers, but it 
 may be presented in court ; and on the prayer of the petition being 
 granted, a rule is drawn up by the judge's clerk, mentioning the name 
 of the counsel and attorney assigned for the defence, which must be 
 produced when the pauper requires anything to be done, without pay- 
 ment of fees. R. v. Dugdale, Comer's Or. Prac. 167. 
 
Trial. 145 
 
 The court will in some cases allow poor persons to prosecute in 
 forma pauperis, but they will not do so on the common affidavit of 
 poverty ; such an application can only be granted on special grounds, 
 upon the certificate of counsel, in addition to the foregoing petition 
 and affidavit. Com. Dig., Forma Pauperis : E. v. Wilhins, 1 Dowl. 
 536. 
 
 Under peculiar circumstances, and usually in indictments for 
 murder at the assizes, where the prisoner is not defended by counsel, 
 the court will request some member of the bai present to give his 
 honorary services to the prisoner. 
 
 The jury. 1 — The prisoner having put himself upon the country, the 
 next proceeding is to call the petty jurors, which the clerk of arraigns 
 does in the following or like terms : — 
 
 " Tou good men, who are returned and impanelled to try the issue 
 joined between our sovereign lady the Qaeen and the prisoners at the bar, 
 answer to your names and save yona- fines" [then calling the jurors by 
 name.] It is not necessary in point of law that the names should be 
 called over in the order in which they stand on the panel, although 
 it is generally proper to do so r it is not, therefore, ground of error 
 that the names are not so called over. Mansell v. R., 8 E. <& B. 5i ; 
 Dears. & B. 375. 
 
 The Jury Act, 6 G. 4, c. 50, defines the qualifications of jurors ; 8. 1 
 enacting, that " every man (except as hereafter excepted) [see infra], 
 between the ages of twenty-one years and sixty years, residing in any 
 county in England, who shall have in his own name or in trust for 
 him, within the same county, 101. by the year above reprises, in lands 
 or tenements, whether of freehold, copyhold, or customary tenure, or 
 of ancient demesne, or in rents issuing out of any such lands or tene- 
 ments, or in such lands, tenements, and rents taken together, in fee 
 simple, fee tail, or for the life of himself or some other person ; or who 
 shall have within the same county 201. by the year above reprises, in 
 lands or tenements held by lease or leases for the absolute term of 
 twenty- one years, or some longer term," or for any term of years de- 
 terminable on any life or lives ; or who, being a householder, shall be 
 rat%d or assessed to the poor rate or to the inhabited house duty in 
 the county of Middlesex, on a value of not less than 301., or in any 
 other county on a value of not less than 20Z. ; or who shall occupy a 
 house containing not less than fifteen windows; shall be qualified 
 and shall be liable to serve on juries for the trial of all issues joined 
 in any of the King's courts of record at Westminster, and in the su- 
 perior courts, both civil and criminal, of the three counties palatine, 
 and in all courts of assize, nisi prius, oyer and terminer, and gaol de- 
 livery, such issues being respectively triable in the county in which 
 every man so qualified respectively shall reside, and shall also be 
 qualified and liable to serve on grand juries in courts of sessions of 
 the peace, and on petty juries, for the trial of all issues joined in such 
 courts of sessions of the peace, and triable in the county, riding, or 
 division, in which every man so qualified respectively shall reside." 
 The remainder of this section, which relates to the qualification of 
 jurors in Wales, is expressly repealed by 33 d 34 Vict. c. 77, «. 7, 
 which further enacts, that " the qualification of persons as jurors in 
 Wales shall be the same as the qualification of persons as jurors in 
 England." 
 
 By the 5 (6 6 W. 4, c. 76, s. 121, it is provided, that every person 
 being a burgess of any borough wherein there shall be a separate 
 
 w. . . H 
 
146 Trial. 
 
 quarter sessions of the peace, shall be qualified and liable to serve on 
 grand juries in such borough, and also upon juries for the trial of all 
 issues joined in any court of quarter sessions of the peace triable 
 within the borough of which such person shall be a burgess. 
 
 " Aliens having been domiciled in England or Wales for ten years 
 or upwards, if in other respects duly qualified, shall be qualified and 
 shall be liable to serve on juries or inquests in England and Wales 
 as if they had been natural-bom subjects of the Queen ; but, save as 
 aforesaid, no man not being a natural-bom subject of the Queen shall 
 be qualified to serve on juries or inquests in any court or on any oc- 
 casion whatsoever." 33 (fe 34 Vict. c. 77, s. 8. "No man who has 
 been or shall be attainted of any treason or felony, or convicted of 
 any crime that is infamous, unless he shall have obtained a free 
 pardon, nor any man who is under outlawry, is or shall be qualified 
 to serve on juries or inquests in any court or on any occasion what- 
 soever." Id. s. 10. The members of municipal councils, and the 
 justices, town clerks and treasurers of boroughs are disqualified from 
 serving on ainy jurv summoned in the borough in which they hold 
 ofiiee. 5 cfe 6 TF. 4,'c. 76, s. 122 ; see ante, p. 77. 
 
 The 6 O. 4, c. 50, s. 2, exempted certain persons from liability to 
 serve as jurors, and certain other persons were also exempted by sub- 
 sequent statutes. The privilege of exemption from serving on juries 
 depends now, however, upon 33 cfi 34 Vict. c. 77 (The Juries Act, 
 1870), s. 9, which, after enacting that " the inhabitants of the city and 
 liberty of Westminster shall, as heretofore, be exempt from serviag 
 on any jury at the sessions of the peace for the county of Middlesex," 
 proceeds thus — " The persons described in the schedule hereto shall 
 be severally exempt (as therein specified) from being returned to 
 serve, and from serving upon any juries or inquests whatever, and 
 their names shall not be inserted in the lists of the persons qualified 
 and liable to serve on the same, but, save as aforesaid, no man other- 
 wise qualified to serve on such juries or inquests shall be exempt 
 from serving thereon, any enactment, prescription, charter, grant, or 
 writ to the contrary notwithstanding." The following is a copy of 
 the schedule referred to in the above section : — " Persons exempt from 
 serving on juries. Peers ; members of parliament ; judges; clergymen; 
 Eoman .Catholic priests; ministers of any congregation of Protestant 
 Dissenters, and of Jews, whose place of meeting is duly registered, 
 provided they follow no secular occupation except that of a school- 
 master ; Serjeants, barristers-at-law, certificated conveyancers and 
 special pleaders, if actually practising ; members of the society of 
 doctors of law and advocates of the civil law, if actually practising ; 
 attomies, solicitors, and proctors, if actually practising and having 
 taken out their annual certificates, and their managing clerks, and 
 notaries public in actual practice ; ofiicers of the courts of law and 
 equity, and of the Admiralty and Ecclesiastical courts, including 
 therein the courts of Probate and Divorce, and the clerks of the 
 peace or their deputies, if actually exercising the duties of their 
 respective offices; coroners ; gaolers and keepers of houses of correc- 
 tion, and all subordinate officers of the same; keepers in public 
 lunatic asylums ; members and licentiates of the Royal College of 
 Physicians in London, if actually practising as physicians ; members 
 of the Royal Colleges of Surgeons in London, Edinburgh and Dublin, 
 if actually practising as surgeons ; apothecaries certificated by the 
 court of Examiners of the Apothecaries Company, and all registered 
 medical practitioners and registered pharmaceutical chemists, if 
 actually practising as apothecaries, medical practitioners or phar- 
 
Trial. 147 
 
 maceutical chemists respectively; officers of the navy, army, militia, 
 and yeomanry, while on full pay; the members of the Mersey Docks 
 and Harbour Board ; the master, wardens, and brethren of the Cor- 
 poration of Trinity House of Deptford Strond; pilots licensed by the 
 Trinity House of Deptford Strond, Kingston-upou-HuU, or New- 
 castle-upon-Tyne, and all masters of vessels in the buoy and light 
 service employed by either of those corporations, and all pilots 
 licensed under any act of parliament or charter for the regulation of 
 pilots; the household servants of her Majesty, her heirs and succes- 
 sors ; officers of the Post Office, commissioners of customs, and offi- 
 cers, clerks, or other persons acting in the management or collection 
 of the customs, commissioners of inland revenue, and officers or 
 persons appointed by the commissioners of inland revenue or em- 
 ployed by them or under their authority or direction in any way 
 relating to the duties of inland revenue ; sheriflfs' officers ; officers of 
 the rural and metropolitan police ; magistrates of the metropolitan 
 police courts, their clerks, ushers, doorkeepers, and messenger's ; 
 members of the council of the municipal corporation of any borough, 
 and every justice of the peace assigned to keep the peace therein, 
 and the town clerk and treasurer for the time being of every such 
 borough, so far as relates to any jury summoned to serve in the 
 county where such borough is situate ; burgesses of every borougli 
 in and for which a separate court of quarter sessions shall be holden 
 so far as relates to any jury summoned for the trial of issues joined 
 in any court of general or quarter sessions of the peace in the county 
 wherein such borough is situate ; justices of the peace so far as 
 relates to any jury summoned to serve .at any sessions of the peace 
 for the jurisdiction of which he is a justice ; officers of the Houses 
 of Lords and Commons." No person whose name shall be in the 
 jury book as a juror shall be entitled to be excused from attendance 
 on the ground of any disqualification or exemption other than illness 
 not claimed by him at or before the revision of the list by the justices 
 of the peace. 33 <fe 34 FicJ. c. 77, s. 12. 
 
 The mode of preparing juiy lists, returning the names of persons 
 qualified as jurors, making up the jury book, and summoning the 
 juries, in counties, is pointed out by 6 G. 4, c. 50, ss. 4, 6, 8, 10, 12, 
 14, 20, 22, 25; 25 (fe 26 Vict. c. 107, ss. 3—14, and 33 & 34 Yict. 
 c. 77, ss. 11, 13, 14, 15, 19, 20. 
 
 The clerk of the peace in every county, riding and division in 
 England and Wales is required on or before the 20th July in every 
 year to issue his precept, according to a form given in the schedule 
 to the 25 & 26 Vict. c. 107, to the churchwardens and overseers of 
 the poor of the several parishes, and to the overseers of the poor of 
 the several townships within the county, riding or division for which 
 he acts, requiring them to make out, before the 1st September then 
 next ensuing, a true list of all men residing within their respective 
 parishes and townships qualified and liable to serve on juries accord- 
 ing to the 6 G. 4, c. 50, and also to perform and comply with all 
 other the requisitions in the said precepts contained. 25 & 26 Vict. 
 c. 107, s. 4. The churchwardens and overseers then make out their 
 lists, and fix a copy on the principal door of every public place of 
 religious worship within their parish or township on the three first 
 Sundays in September; 6 G. 4, c. 50, ss. 8, 9; 25 (fe 26 Vict. c. 107, s. 6; 
 and at a special petty sessions, held in the last week in September 
 (or at such adjournment thereof as is mentioned in the 25 & 26 Vict, 
 c. 107, s. 8), these lists are produced, and the justices then strike 
 
 h2 
 
148 Trial 
 
 out the names of any persons not qualified, or not able to serve by 
 reason of any infirmity, and they insert the names of any qualified 
 persons omitted ; 6 ff. 4, c. 50, s. 10 ; and (he lists duly corrected 
 and allowed by the justices present at such petty sessions are trans- 
 mitted by their clerk to the clerk of the peace ; 25 eg 26 Vict. c. 107, 
 «. 9. The lists are then copied into The Jurors' Book by the clerk 
 of the peace, which book is delivered by him to the sheriff, to be 
 used from the 1st of January, for one year. 6 G. 4, c. 50, s. 12; 
 25 (& 26 Vict. c. 107, s. 10. 
 
 The 20th section of the 6 G. 4, c. 50, provides, that the court of 
 King's Bench, and all courts of oyer and terminer, gaol delivery, the 
 superior criminal courts of the three counties palatine, and courts of 
 sessions of the peace in England, and all courts of sessions of the 
 peace in Wales, shall respectively have and exercise the same power 
 and authority as they have heretofore had and exercised, in issuing 
 any imt or precept, or in making any award or order, orally or other- 
 wise, for the return of a jury for the trial of any issue before any of 
 such courts respectively, or for the amending or enlarging the panel 
 of jurors returned for the trial of any such issue ; and the return to 
 every such writ, precept, award or order, shall be made in the manner 
 heretofore used and accustomed in such courts respectively, save and 
 except that the jurors shall be returned from the body of the county, 
 and not from any hundred, or any particular venue within the county, 
 and shall be qualified according to this act 
 
 Before the justices of assize go their circuits, they issue their pre- 
 cept, signed and sealed to the sheriff, to cause all persons bound to 
 attend at the assizes to appear before them on an appointed day, and 
 requiring him (among other things) to return a competent number of 
 good and lawful men of the body of the county, qualified as jurors 
 according to law; and the judges are empowered by the stat. 6 (?. 4, 
 c. 50, s. 22, if they think fit, to direct the sheriff to summon and im- 
 panel such number of jurors, not exceeding one hundred and forty- 
 four, as such judges shall think fit to direct, to serve indiscriminately 
 on the criminal and civil side, dividing them into two sets, the first to 
 serve at the beginning of the assizes, for such time as the judge may 
 direct, and the second to serve for the residue of such assizes. {For 
 forms of judges' precepts to the sheriff, see 4 Chit. Crim. L. 171, 174.) 
 The precept issued by the justices of assize 'to the sheriff' to summon 
 jurors for the assizes shall direct that the jurors be summoned for 
 the trial of all issues, whether civil or criminal, which may come on 
 for trial at the assizies. 15 & 16 Vict. c. 76, s. 105. The 6 G. 4, 
 c. 50, further provides, that the sheriff, upon tlie receipt of the writ 
 of venire facias and precept for the return of jurors, shall return the 
 names of men contained in the jurors' book for the current year, and 
 no others ; s. 14. " No juror shall be liable to any penalty for non- 
 attendance on any jury, unless the summons requiring him to attend 
 be duly served six days at least before the day on which he is 
 required to attend, but no longer period than such six days shall in 
 any case be required between the service and such last-mentioned 
 day." 33 & 34 Vict. c. 77, s. 20. Jurors may now be summoned by 
 post, provided that when any summons shall be served by post, two 
 additional days shall be allowed for the transmission gf such sum- 
 mons by post, over and above the number of days required by law 
 for the service lof a summons, before the day on which the juror is 
 required to attend. 25 (& 26 Vict. c. 107, s. 11. This proviso is not 
 repealed, but it seems inconsistent with 33 c6 34 Vict. c. 77, s. 20,supra. 
 
Trial. 149 
 
 Where a crown case is to be tried at mid prius in the country (the 
 writs oi venire facias juratores, and distringas juratores, which consti- 
 tuted what was formerly Icnown as the jury process, having been 
 abolished by the 15 & 16 Vict. c. 76, s. 104), a printed copy of the 
 jury panel, which may be obtained from the sheriff on payment of 
 one shilling, is annexed to the record. 16 & 16 Vict. c. 76, s. 106. 
 
 Special jury. 1 — In important cases of misdemeanor, when the re- 
 cord is in the Queen's Bench, a special jury may be obtained on the 
 motion of either prosecutor or defendant. It is enacted and declared, 
 by'6 G. 4, c. 50, s. 30, that it is and shall be lawful for his Majesty's 
 court of King's Bench, etc. at Westminster respectively, and for the 
 judges of the said courts of the three counties palatine, upon the 
 motion of any prosecutor, relator, plaintiff or demandant, or of any 
 defendant or tenant in any case whatsoever, whether civil or criminal, 
 or on any penal statute, excepting only indictments for treason or felony, 
 depending in any of the said courts, and the said courts and judges 
 respectively are hereby authorized, in any of the cases before men- 
 tioned, to order and appoint a special jury, to be struck before the 
 proper officer of each respective court, for the trial of any issue joined 
 in any of the said cases, and triable by a jury, in such manner as the 
 said courts respectively have usually ordered the same, and every jury 
 so struck shall be the jury returned for the trial of such issue. As to 
 the usual mode of striking a special jury, see Corner's Or. Prac. 136. 
 But by the 15 <£ 16 Vict. c. 76, s. 108, the precept issued by the judges 
 of assize for the sheriff to summon jurors for the assizes shall direct 
 the sheriff to summon a sufficient number of special jurymen, to be 
 mentioned therein, not exceeding forty-eight in all, to try the special 
 jury causes at the assizes ; and the persons summoned in pursuance 
 of such precept shall be the jury for trying the special jury causes at 
 the assizes, subject to such right of challenge as the parties are now 
 by law entitled to ; and a printed panel of the special jurors so 
 summoned shall be made, kept, delivered and annexed to the nisi 
 prills record, in like time and manner, and upon the same terms as 
 hereinbefore provided with reference to the panel of common jurors; 
 and upon the trial the special jury shall be balloted for, and called in 
 the order in which they shall be drawn from the box, in the same 
 manner as common jurors : Provided that the court or a judge, in 
 such case as they or he may think fit, may order that a special jury 
 be struck according to the present practice, and such order shall be 
 a sufficient warrant for striking such special jury, and making a, 
 panel thereof for the trial of the particular cause. And see ss. 109 — 
 113, as to the course to be pursued in cases where a special jury is 
 desired. As to special juries in London and Middlesex, see 33 (& 34 
 Vict. c. 77, ss. 16 — 18. As to the qualification of special jurors, 
 see 33 (& 34 Vict. c. 77, s. 6 ; and as to the remuneration, see Id. 
 s. 22. The party applying for a special jury shall pay the fees for 
 striking such jury, and all the expenses occasioned by the trial of the 
 cause by the same, and shall not have any further or other allowance 
 for the same upon taxation of costs, than such person or party would 
 be entitled to in case the cause had been tried by a common jury, 
 unless the judge before whom the case is tried shall immediately 
 after the verdict certify under his hand, on the back of the record, 
 that the same was a case proper to be tried by a special jury ; 6 Gr. 4, 
 c. 50, s. 34. It was thought that in a criminal case the judge would 
 decline to certify : 1 Esp. 229; 1 Chitt. Orim. L. 524; but see R. v. 
 
 h3 
 
150 Trial. 
 
 Inhabitants of Pemhridge, 3 Q. B. 901; 12 L. J. (Q. B.) 47, and R. 
 V. Rowlands, 2 Den. 364, 371 (m). 
 
 If suificient special jurors are not in attendance, a tales for de- 
 ficiency or default of jurors may be awarded, by warrant of the 
 attorney-general, for a tales de circumstantibus. [For the form and 
 mode of obtaining this warrant, see Comer's Or. Prac. 142.] It may 
 be remarked, that if a rule be made for a special jury, and the parties 
 proceed to trial before a common jury, the verdict cannot be after- 
 wards impeached. 5 T. R. 456. A grand juror who found the bill 
 ought not to be on the special jury to try the same case. R. v. 
 Edmonds, i B. <& Aid. 471: Peter Cook's case, 13 HowelVs Stg.le 
 Trials, 339: R. v. Sullivan, % A. & E.%&1; 8 L. J. {M. C.) 3. 
 
 Jury de medicate Ungues^ — Before the 33 Vict. c. 14 (^The Natu- 
 ralization Act, 1870), an alien was entitled to be tried by a jury de 
 medietate lingum (as to which see Arch. Cr. PI. 143, \6th ed.), when 
 he was indicted of any felony or misdemeanor, but not when he was 
 indicted of high treason. It is, however, enacted by s. 5 of the above- 
 mentioned statute, that " from and after the passing of this act, an 
 alien shall not be entitled to be tried by a jury de medietate linguce, 
 but shall be triable in the same manner as if he were a natural-born 
 subject." 
 
 Challenge of jurors."] — When a sufficient number of prisoners have 
 pleaded, and put themselves upon the country, the clerk of the ar- 
 raigns addresses the prisoners thus: "Prisoners, these good mean that 
 you shall now hear called are the jurors who are to pass between our 
 sovereign lady the Queen and 'you upon your respective trials; [or in 
 a capital case, upon your life and death;] if therefore you or any of 
 you will challenge them or any of them, you must challenge them as 
 they come to the book to be sworn, and before they are sworn, and you 
 shall be heard." The officer then proceeds to call twelve jurors from 
 the panel, calling each juror by name and address. Hereupon, and 
 after a full jury has appeared, R. v. Edmonds, i B. & AM. 471, the 
 proper time occurs for the defendant to exercise his right oi challenge, 
 or exception to the jurors returned to pass upon his trial. The party 
 intending to challenge the array may pray a tales to completp the 
 number, and then object to the panel. Bull. N. P. 307. 
 
 Challenges are of two kinds : 1. To the array, when exception is 
 taken to the whole number impanelled : and 2. To the polls, when 
 individual jurymen are excepted against. They are divided also into 
 challenges peremptory, and challenges per causam, that is, upon cause 
 or reason. Both kinds of challenge, to the array and to the polls, 
 may be made either on behalf of the crown or of the defendant. At 
 common law, the crown might, it seems, have challenged peremptorily 
 any number of jurors, without alleging any other reason than "quod 
 nan boni sunt pro rege." 2 Hawk. c. 43, g. 23 ; 2 Roll. Abr. 645; Co. 
 Litt. 156 b; Bac. Abr. Juries, (E.) 10. But this power was taken 
 away by the stat. 33 Edw. 1, s. 4, and a like provision is repeated in 
 6 G. 4, c. 50, s. 29, which enacts, that " in all inquests to be taken 
 before any of the courts hereinbefore mentioned (that is, the court 
 of Queen's Bench, and all courts of oyer and terminer, gaol delivery, 
 the superior criminal courts of the three counties palatine, and courts 
 of sessions of the peace in England and Wales, see s. 20), wherein 
 the king is a party, howsoever it be, notwithstanding it be alleged 
 by them that sue for the king, that the jurors of those inquests, or 
 
Trial. 151 
 
 some of tliem, be not indifferent for the king, yet such inquests shall 
 not remain untaken for that cause ; but if they that sue for the king 
 will challenge any of those jurors, they shall assign of their challenge 
 a cause certain, and the truth of the same challenge shall be inquired 
 of according to the custom of the court ; and it shall be proceeded 
 to the taking of the same inquisitions as it shall be found, if the 
 challenges be true or not, after the discretion of the court ; and that 
 no person arraigned for murder or felony shall be admitted to any 
 peremptory challenge above the number of twenty." The crown, 
 however, is not even now bound to show any cause of challenge 
 until the panel has been gone through and it appears that there 
 will not be jurors enough to try the defendant, if the peremptory 
 challenges are allowed to prevail. 2 Hale, 271 ; 2 Hawh. c. 43, 
 s. 3 ; 13 St. Tr. 357 ; Staundf. 162 : R. v. Parry, 1 C. & P. 836 : 
 R. V. Oeach, 9 C. d; P. 499. And the panel is not to be con- 
 sidered as being " gone through " (Or, in the phrase of the books, 
 " perused ") for tliis purpose, until it has been, not only once 
 called over, but exhausted; that is, until according to the usii^l 
 practice of the court, and what may reasonably be expected, the fact 
 is ascertained that there are no more jurors in the panel whose 
 attendance may be procured, and so, unless the crown be put to show 
 its cause of challenge, "the inquest would remain untaken." Manaell 
 V. R., 8E.<S;B.5i; Dears. & B. 375; 27 L. J. (M. C.) 4. In that 
 case the panel contained fifty-four names: eighteen, when called, 
 were peremptorily challenged by the prisoner ; fifteen were, on the 
 prayer of the counsel for the crown, the prisoner's counsel objecting, 
 and praying that cause of challenge should be shown, ordered to 
 "stand by;" and nine were elected and tried to be sworn. This left 
 twelve other persons only on the panel, and those twelve were at that 
 time absent, deliberating upon their verdict in another case. The 
 name of W. J. (the first person who upon the prayer of the counsel 
 for the crown had been ordered to stand by) was then again called, 
 and the counsel for the crown again prayed that he might be ordered 
 to stand by, upon which the counsel for the prisoner prayed that 
 cause of challenge should be shown forthwith. At that moment, and 
 before any judgment was given, the twelve persons who sat as a jury 
 in the other case came into court and gave their verdict ; and the 
 counsel for the crown then prayed that W. J. should be ordered to 
 stand by until those twelve persons had been called ; but the counsel 
 for the prisoner demanded thai W. J. should be sworn, unless cause 
 of challenge to him were shown. The court ordered that W. J. 
 should stand by; and three persons, the number required to com- 
 plete the jury, were taken from the said twelve jurors, and elected 
 and tried to be sworn, although the prisoner's counsel objected that 
 such persons ought to be called in their proper order with other 
 persons in the panel, and that J. J., the person whose name stood in 
 the panel immediately after that of W. J., ought to be next called. 
 Upon a writ of error, the record stating all these facts, it was held 
 that, under the circumstances, the panel was not gone through, so 
 as to put the crown to assign cause of challenge, until the twelve 
 persons who came into court before the complete formation of the 
 jury had been called; that W. J. was properly ordered to stand by 
 the second time ; and that the three persons required to complete 
 the jury were properly called and taken from the said twelve, 
 without again calling the whole panel through in its order. Id. 
 The above-mentioned phrase, to " stand by," merely means that, 
 
152 Trial. 
 
 the juror being challenged by the crown, the consideration of the 
 challenge shall be postponed till it be seen whether a full jury can 
 be made without him. Id. 
 
 The defendant is bound to show all his causes of objection before 
 the prosecutor can be called upon to show the grounds of his chal- 
 lenges. 2 Hawh. c. 43, s. 3 ; Bac. Abr., Juries, (E.) 10 ; 4 Bh,. Com. 
 353. For cause shown, the prosecutor has the same right of chal- 
 lenge to the array, or to the polls, as the defendant. 2 Inst. 431 ; 
 2 Eale, 271. 
 
 Challenges for the defendant are either peremptory, or for cause. 
 Peremptory challenges are those which are made to individual jury- 
 men without any reason assigned, and which the court is bound to 
 allow, in cases of high treason, to the number of thirty-five ; 1 tfe 2 
 Ph.<&M.c.\Q\Z Bum's J. 87 (30<A ed.) ; 7 c6 8 PF. 3, c. 3, g. 2 (except 
 where the treason charged is the compassing of the Queen's death, 
 and an overt act alleged in the indictment is the assassination of the 
 Queen, or any direct attempt against her life, or against her person, 
 whereby her life may be endangered, or her person may suffer bodily 
 harm, 39 & 40 G. 3, c. 93) ; in the last-mentioned cases of high 
 treason, and in murder and all other felonies, to the number of 
 twenty. 6 G. 4, c. 50, s. 29 ; ante, p. 150 ; 2 Hawh. c. 43, s. 78 ; 
 2 Bale, 268 ; Bac. Abr., Challenge, 70, 74, 75, 217; Fast. 106; Co. 
 Litt. 156 ; Bac. Abr., Juries, (E.) 9, 10. " If any person indicted for 
 any treason, felony, or piracy, shall challenge peremptorily a greater 
 number of the men returned to be of the jury than such person is 
 entitled by law so to challenge, in any of the said cases every 
 peremptory challenge beyond the number allowed by law in any of 
 the said cases shall be entirely void, and the trial of such person 
 shall proceed as if no such challenge had been made." 7 <& S G. i, 
 c. 28, s. 3. It may be mentioned that in Ireland there are only 
 twenty peremptory challenges even in high treason. 9 G. 4, c. 54, 
 B. 9 ; O'Brien v. E., 2 Ho. Lds. Ca. 465. In misprision of trea- 
 son, it seems to be doubtful which number is to be allowed. See 
 2 Hawh. c. 43, s. 5 ; 3 Inst. 27 a. In cases of misdemeanor, no right 
 of peremptory challenge exists at all, the privilege having been 
 originally given by the common law infavorem vitce, although it is 
 now extended to all cases of felony ; Co. Litt. 156 ; 4 Bla. Com. 352 
 Com. Dig,, Challenge, (C) ; Gray v. R., 11 Cla. c& Fin. 427 ; but it is 
 usual for the officer, on application to him, to abstain from calling 
 any reasonable number of names objected to either by the prosecutor 
 or by the defendant, taking care that enough be left to form a jury ; 
 and this practice has often been sanctioned by the court. See Dick 
 Q. S. 485, 486 (6iA ed.). 
 
 Where, on a trial for felony, the jury panel contained the names of 
 J. T. and W. T., and when the name of J. T. was called, a person 
 supposed to be J. T. went into the box and was sworn without ob- 
 jection; and the prisoner having been convicted, it was discovered 
 the next day that W. T. had, by mistake, answered to the name of 
 J. T., and was really the person who had served on the jury ; it was 
 held by a majority of the judges, that this was not a mis-trial, but 
 only ground of challenge. R. v. Mellor, Dears. & B. 468 ; 27 L. J. 
 {M. C.) 121. See 12 East, 231, n. 
 
 Where several defendants are tried by the same inquest for treason 
 or felony, each has a right to the full number of his challenges ; and 
 if they refuse to join in their challenges, the crown has the right of 
 trying each, or any number of them less than the whole, separately 
 
Trial. 153 
 
 from the others, so as to prevent the delay which might arise from 
 the whole panel being exhausted by the challenges. Fast. 106 ; Co. 
 Litt. 156; 2 fi'aZe, 268. 
 
 Challenges for cause are either to the array, or to individual jniy- 
 men. The challenge to the array is either a, principal challenge, or 
 for favour. The causes of a principal challenge to the array are — 
 where the sheriff is the actual prosecutor or party aggrieved ; R. v. 
 Sheppard, 1 Leach, 101 : R. v. Edmonds, 4cB. & A Id. 471; or where, 
 at the time of the return, he was of actual affinity to either party ; or 
 if he return any jurors at the request of the prosecutor or defendant, 
 or any person whom he believes to be more favourable to the one 
 side than to the other ; or if the defendant have an action depending 
 against the sheriff; Co. Litt. 156a; so if the sheriff, or the bailiff 
 who made the return, be under the distress of the prosecutor or the 
 defendant ; or if he have any pecuniary interest in the event ; or if 
 he be counsel, attorney, servant, or arbitrator, in the same cause : 
 Id.; Bac. Abr., Juries, (E.): or a subscriber to a society who are 
 the prosecutors. R. v. Dolby, 1 C.&K. 238. It is no ground of chal- 
 lenge for unindifferency on the part of the sheriff, that the officer had 
 omitted to summon one of the twenty-four special jtirymen returned 
 on the panel. R. v. Edmonds, A B. <& Aid. 471. Nor is it of itself 
 any legal cause of challenge to the array, that the sheriff has returned 
 a large proportion of the panel of a different religion from the de- 
 fendant. R. V. O'Brim, Clonmel Special Oonvmission, 1849. There 
 can be no challenge to the ai-ray on the ground of unindifferency in 
 the master of the crown office, he being the officer of the court ex- 
 pressly appointed to nominate the jury ; in such case, the only remedy 
 is to apply to the court to appoint some other officer to nominate the 
 jury. R. V. Edmonds, supra. It is no ground of challenge to the 
 array that the justices have omitted the duties prescribed by the 
 Jui-y Act in making out the list of names for the jury book, and that 
 the sheriff has summoned the juiy from a jury book so improperly 
 made. R.y. Burhe,lQ Cox,bl^. The 3 S i W. i, c. 91 (Irish Jury 
 Act), s. 9, which in this respect corresponds with 6 G. 4, c. 50 
 (English jury Act), s. 12, directs a jurors' book to be made up in 
 each year for use in the year following, and declares that such book 
 shall be in use from the 1st of January for and during one year.- In 
 November, 1865, at a sitting of a special commission, a panel was 
 returned from the then existing juiy book ; the jurors -were not then 
 called, but the sitting was duly adjourned to 19th January, 1866, at 
 which time the trial took place, when the jurors' named in the return 
 of 1865 were called. It was held, that this was not a ground of chal- 
 lenge to the an-ay. Mulcahy v. R., L. R., 3 H. L. English and Irish 
 Appeals, 306 , and also that the fact of one of the jurors who had 
 been duly returned in November, 1865, not being on the list for 
 1866, was no ground of challenge to him. Id. 
 
 The default of the sheriff may also be a ground of principal chal- 
 lenge to the array ; as where, the array being returned by the bailiff 
 of a liberty, the sheriff returns it as from himself; if, however, the 
 sheriff returns a panel /toto the liberty, it will be good, though he may 
 be liable to the lord of the franchise in an action. Co. Litt. 156 a; 
 Bac. Abr., Juries,(E.) 1. Anciently, the defendant had the right of 
 challenging the array "for want of hundredors," i. e. if four persons 
 were not returned from the hundred in which the offence was alleged 
 to have been committed ; 2 Hale, 272 ; but now the jury is taken 
 
 h5 
 
IM Trial. 
 
 from the body of the county, and this right of challenge is removed. 
 6 G. 4, c. 60, a. 13. 
 
 A principal challenge to the array being founded upon some mani- 
 fest partiality or error, if the cause be truly alleged, the court, it is 
 said, will at once quash the away, and direct a new venire to issue. 
 But there may also be a challenge to the array for favour, in cases 
 where the ground of partiality is less apparent and direct : as where 
 one of the parties is tenant to the sheriff ; or the sheriff and one of 
 the parties are united in the same office ; or where a relationship 
 exists between the children of one of the parties and of the sheriff or 
 officer; or where the sheriff has an action of debt depending against 
 one of the parties. Co. Litt. 156 a; Bac. Abr., Juries, (£.) 1; 3 Dyer, 
 367 a. 
 
 Where cause exists for a challenge to the array, on the ground of 
 relationship or otherwise, the party liable to the objection may him- 
 self suggest it to the court, in order to prevent the delay which the 
 challenge would occasion, and pray that the venire may be awarded 
 to the coroners or elisors, as the case may be. If the other party 
 admits the fact, and agrees to the prayer, the venire will at once be so 
 awarded ; if he refuses, denying the existence of the cause of chal- 
 lenge, he cannot afterwards avail himself of it. Co. Litt. 157 h; 3 
 Dyer, 367 a; 5 Sep. 36 b. 
 
 A challenge to the array ought to be in writing, so that it may be 
 put upon the nisi prius record, and the other party may demur or 
 counterplead to it. See A B. & Aid. All ; 10 M. & W. 274. The 
 form of it is as follows : — 
 
 " And now at this day come as well the said J. N., who for our 
 said lady the Queen prosecutes in this behalf as the said J. S., in his own 
 proper person, amd the jv/ry thereupon empanelled likewise come ; and 
 thereupon the said J. S. challenges the array of the said panel, became 
 he says that the said panel was arrayed and returned by A. B., esquire, 
 now and at the time of the making of the array aforesaid sheriff of tht 
 
 said county of , which said sheriff is a kinsman of the said J. N., 
 
 to wit [setting out the mode of relationship] ; and this he is ready to 
 verify, whereupon he prays judgment, and that the said panel may te 
 quashed." 
 
 The ground of objection must be specifically stated in the chal- 
 lenge : for a challenge merely stating that the sheriff " has not 
 chosen the panel indifferently and impartially, as he ought to have 
 done, and that the panel is not an indifferent panel," is bad as being 
 too general. R. v. Sughes, 1 C. <& K. 235. The opposite party may 
 either plead to the challenge, traversing the cause of challenge al- 
 leged, or demur to it for insufficiency. Id the latter case, the party 
 challenging joins in the demurr&r, and the matter is determined by 
 the court. The demurrer and joinder may be in the following 
 form ; — 
 
 " And the said J. N. says, that the said challenge of the said J. S. 
 to the array of the panel aforesaid is not sufficient in law to quash the 
 array of the pcmel aforesaid, and that there is no necessity for him the 
 said J. N., nor is he obliged by the law of the land to answer to the 
 said challenge in manner amd form as it is above alleged^ where- 
 fore he prays judgment, and that the array of the said pamel may he 
 affirmed," etc. 
 
Ti-ial. 155 
 
 "And the said J. S. says, that he hath above alleged sufficient matter 
 in law, in the said challenge by him above made to the array of the 
 panel aforesaid, to quash ike array of the said panel, which he the said 
 J. S. is ready to verify ; which said matter the said J. N. does not 
 deny, nor in any manner answer thereto; wherefore the said J. S., as 
 before, prays judgment, arid that the array of the said panel may be 
 qvashed," etc. 
 
 In case the challenge is overruled, the judgment should be entered 
 on the original record, or at nisi prius on the postea. R. v. Edmonds, 
 4: B. d; Aid. 471. If the objection be overruled without demurrer, 
 the ruling, it has been said, may be made the subject of a bill of 
 exceptions; 8 Mep. Orim. L. 146; Bac. Abr., tit. Juries, (E.) 21 ; 
 Skin. 101 : but see post, p. 161. The challenge may be removed as 
 part of the record, where it was a principal cause of challenge. 3 
 Woodeson, sect. 347. 
 
 If the party pleads to the challenge, two triers are (in the case, at 
 least, of a challenge for favour, and also, it would seem, in the case 
 of a principal challenge, unless the fact be admitted or apparent) 
 appointed by the court, who are sworn, and charged to try whether 
 the array be an impartial or a favourable one. See O'Brien v. S., 2 
 Ho. Lords Ca. 469. These triers are generally two of the jurymen 
 returned. The court may, however, in its discretion, refer the trial 
 to the two coroners, or to two attorneys, or to any other two indif- 
 ferent persons. 2 Hale, 275 ; 4 Bla. Com. 353 ; 2 Boll. Rep. 363. 
 If they find in favour of the challenge, a new venire is awarded to 
 the coroners, or, if they be interested, to the elisors. See 1 Inst. 
 158; R. V. Dolby, 2 B. <& C. 104. There the defendant, being 
 indicted for a seditious libel, challenged the array on the gi-ound 
 that the prosecution was instituted by an association called the 
 Constitutional Association, and that one of the sheriffs who returned 
 the jury was one of the association. The counsel for the prosecu- 
 tion thereupon took issue ; the chief justice then appointed two 
 triers to try the issue, who were accordingly sworn ; the counsel for 
 the defendant first addressed these triers, and called a witness, who 
 proved that the sheriff named was one of the subscribers to the 
 association. The counsel for the prosecution then addressed the 
 triers, and called a witness to prove that the sheriff had ceased to be 
 a subscriber to or member of the association before the return of the 
 jury process, but failed in proving it for want of the letter by which 
 the sheriff had withdrawn himself from it. The triers were then 
 addressed by the counsel for the defendant in reply. The chief 
 justice summed up. The triers found in favour of the challenge, 
 and the cause was adjourned. If the triers find against the chal- 
 lenge, the trial proceeds as if no such challenge had been made. 
 The improper disallowance of a challenge is ground, not for a new 
 trial, but for a venire de novo. R. v. Edmonds, 4 B. c6 Aid. 471. 
 
 But although the challenge to the array be determined against the 
 party making it, he may afterwards stiO have his challenges to the 
 polls, i. e. he may object separately to each juryman as he is about to 
 be sworn. The challenge must be made before the book is given 
 into the hands of the juror and the officer has recited the oath ; and 
 it comes too late afterwards although made before the juror has 
 kissed the book. R. v. Giorgetti, i P. <& F. 546. These challenges 
 are generally made by parol, although, in strictness, if any question 
 is raised upon the validity of such a challenge, it must be entered in 
 
156 Trial. 
 
 due form on the record. And the defendant, in treason or felony, 
 may for cause shown object to all or any of the jurors called, after 
 exhausting his peremptory challenges of thirty-five or twenty'. These 
 challenges to the polls for cause are, like those to the array, either 
 principal or to the favour. The principal causes of challenge are : — 
 
 1. Propter honoris respectum; where a peer or lord of parliament is 
 sworn on a jury for the trial of a commoner. Co. Litt. 156 b; 2 
 Bawk. c. 43, s. 11; Bac. Abr., Juries, (E.) 6; 3 Bla. Com. 361. 
 
 2. Propter defectum, i. e. on account of some personal objection, as 
 alienage, infancy, old age, or a deficiency in the requisite qualifica- 
 tion (as to which see 6 G. 4, c. 50, s. 1, and 5 S G W. 4, c. 76, s. 121, 
 'ante, p. 145) ; and a juror may challenge himself, by stating that he 
 is not qualified, and he may be examined upon oath. 4 Hargr. St. 
 Tr. 740. In Ireland the fact of a juror being over sixty years of age 
 is not a ground for challenge, but oaly operates in the juror's favour 
 as an exemption. Mulcahy v. R., L. R., 3 H. L. English and Irish 
 Appeals, 306. This point was decided mainly on the words of 
 3 d 4 T^. 4, c. 91 (Irish Jury Act), ss. 1 and 20. The analogous 
 sections in 6 G. 4, c. 60 (English Jury Act), are ss. 1 and 27, but 
 although analogous they are not identical, and it may be doujjtful 
 whether in England the fact of a juror being above sixty years old is 
 not a disqualification. 3. Propter affectum, i. e. on the ground of some 
 presumed or actual partiality in the juror : as if he be of afiSnity to 
 either party, or in his employment, or is interested in the event, etc. ; 
 in short, any such presumed partiality as would be a good ground for 
 a principal challenge to the array, in the case of the sheriff', will be 
 also a cause of prinespal challenge to an individual juryman. So 
 where an actual partiality is shown to exist, or if the juror has ex- 
 pressed a desire as to the result of the trial, or an opinion as to the 
 guilt or innocence of the defendants. A juryman was set aside on 
 the trial of O'Coigly and others for treason, because, on looking on the 
 prisoners, he had uttered the words " damned rascals." 4 Chitt. Bla. 
 Com. 354, n. A person who has acted as a grand juror on the finding 
 of a bill of indictment may also be objected to if returned to serve on 
 the petty jury, either on the trial of that indictment or of any other 
 indictment for the same offence. R. v. Cook, 13 St. Tr. 334. But a 
 person who has sat upon a former petty jury, which convicted other 
 defendants on the same indictment, is not therefore subject to chal- 
 lenge. See Co. Litt. 157 a,- Bac. Abr., Juries, (E.) 5; 3 Bla. Com. 363. 
 4. Propter delictum, i. e. on the ground of infamy ; as where the jm-or 
 has been convicted or attainted of treason, felony, perjury, conspiracy, 
 or any other infamous offence ; which is to be proved by the record 
 of his- conviction. And even a pardon will not remove this objection. 
 2 Rale, 277 ; Bac. Abr., Juries, (E.) 2 ; Brown v. Crashaw, 2 Bulstr. 
 154. This was the rule at common law, but it has been materially 
 altered by 33 c6 34 Vict. c. 77, s. 10, ante, p. 146. 
 
 Challenges to the polls for favour are where, although the juror is 
 not so manifestly partial as to render him liable to a principal chal- 
 lenge, there are, nevertheless, reasonable grounds for suspicion that 
 he will act under some prejudice or undue influence; as where he has 
 been entertained in the house of the party, or has been arbitrator in 
 the same matter; or where the juror and the party are fellow-ser- 
 vants, or any other cause exists, such as would constitute in the case 
 of the sheriff a ground of challenge to favour to the whole panel. 
 Co. Litt. 157 b; Bac. Abr., Juries, (E.) 5. 
 
 In the case of a principal challenge to the polls, if the partiality 
 be made apparent to the satisfaction of the court, the challenge is at 
 
Trial. 157 
 
 once allowed, and the juror set aside. But in the case of a challenge 
 to the favour, it is left to the discretion of two triers who are sworn 
 and charged to try whether the juror challenged stands indifferent 
 between the parties. The form of oath to a trier, to try whether a 
 juror stands indifferent or not, is as follows : — 
 
 " You shall well and truly try whether A. B., one of the jurors, stands 
 indifferently to try the prisoner at the bar, and a true verdict give ac- 
 cording to the evidence. — So help you God." 
 
 It may be observed, that no challenge of triers is admissible. The 
 form of oath to be administered to a witness sworn to give evidence 
 before the triers is as follows: — 
 
 " The evidence which you shall give to the cowrt and triers upon this 
 inquest shall he the truth, the whole truth, and nothing hut the truth. — 
 So help you God." 
 
 If the challenge is to the first juror called, the court may select any 
 two indifferent persons as triers; if they find against the challenge, 
 the juror will be sworn, and be joined with the triers in determining 
 the next challenge; but as soon as two jurors have been found in- 
 different, and have been sworn, every subsequent challenge will be 
 referred to their decision. 2 Hale, 275; Co. Lilt. 158 a; Bac. Abr. 
 Juries, (E.) 12. The trial thus directed proceeds by witnesses called 
 to support or defeat the challenge: the juror objected to may also be 
 examined on the voir dire, as to his qualification, or the leaning of his 
 affection ; but he cannot be interrogated as to matters which tend to 
 his own discredit, as whether he has been convicted of felony, etc., 
 nor, as it seems, whether he has expressed a hostile opinion as to the 
 guilt of the defendant. 2 Hawk. c. 43, s. 28 ; B. v. Cook, 13 St. Tr. 
 334: B. V. Edmonds, i B. d Aid. 471. On the trial of Cvffm/ and 
 others, at the Central Criminal Court, September, 1848, for a treason- 
 able felony, under the stat. 11 Vict. c. 12, the latter question was asked 
 of some of the jurors who had been challenged for favour, the attorney- 
 general not objecting on the part of the crown. The form of oath on 
 the voir dire is as follows : — 
 
 " Tou shall true answer make to all such questions as the court shall 
 demamd of you. — So help you God." 
 
 K the panel be so far exhausted by challenges that a full jury is 
 not left, a fresh panel will be returned ; and thereupon the defendant 
 may challenge peremptorily any of those who were sworn before, if 
 they are now returned; but he cannot challenge them for cause 
 except for some matter which has arisen since the original swearing. 
 2 Hale, 270. 
 
 Whether or not a criminal court has the power to award a tales 
 in case of deficiency or default of jurors, without a warrant from tlie 
 attorney-general, is not a settled point ; tlie better opinion seems to 
 be that it has not. Hawkins (c. 41, «. 18) remarks, " But it seems 
 that such a tales cannot be prayed for by the king upon an indict- 
 ment or criminal information, without a warrant from the attorney- 
 general, or an express assignment from the court before which the 
 inquest is taken ;" but Blackstone says, " If by reason of challenges, 
 or default of jurors, a suflScient number cannot be had of the original 
 
158 Trial. 
 
 panel, a tales may be awarded as in civil causes, till the number of 
 twelve is sworn." 4 Bla. Com. 355 ; and see 14 Eliz. c. 9 ; Raym. 
 367 ; 1 Lev. 223 ; 1 Keh. 490 ; 4 Inst. 161 ; 2 B. d: C. 104. 
 
 The judge, however, may, where the panel is exhausted and no 
 tales has been prayed, order the sheriff to return a panel instanter 
 without further precept : and the justices of the peace in sessions 
 may issue a special precept commanding the sheriff to return a suf- 
 ficient number of jui-ors immediately, and thereupon may proceed 
 with the trial at the then sessions. 1 ffale, 28, 261 ; see 6 G. 4, 
 c. 50, s. 20. 
 
 The usual and in general the proper course, where the panel is 
 exhausted by challenges of the prisoner and the crown, or of either 
 before a full jury remains, is to call over the whole panel again in 
 the same order as before, but omitting those peremptorily challenged 
 by the prisoner ; and then, as each juror again appears, whichever 
 party challenges must show cause. If no sufficient cause of challenge 
 be shown, the jurors are then sworn. B. v. Oeach, 9 C. <& P. 499. 
 See ante, p. 160. And no cause of challenge to the jury, whether to 
 the array or. to the polls, can be taken, either in arrest of judgment 
 or otherwise, after the jury are sworn. B. v. Sheppard, 1 Leach, 
 101 : B. V. Sutton, 8B.S C. 417- No challenge can be taken, neither 
 need the jury be resworn, when the defendant is given in charge 
 to them on an allegation of a previous conviction, under 7 (6 8 (?. 4, 
 c. 28, s. 11, and 6 <:fe 7 W. 4, c. 111. B. v. Key, 2 Den. 347; 21 L. J 
 (M. C.) 35. And by the 24 & 25 Vict. c. 96 {Larceny Act), s. 116, 
 and 24 & 25 Vict. c. 99 {Coin Act), s. 37, where the prisoner is, 
 under the provisions of either of those acts, given in charge to 
 the jury on an allegation of a previous conviction, it shall not be 
 necessary to swear the jury again (and therefore no challenge can 
 be taken). 
 
 It may be observed, that there may be cases in which the court, 
 without challenge taken, may and ought to excuse a juryman on the 
 panel when called, if he is obviously unfit to perform his duty, fi-om 
 physical or mental infirmity, or semble, from expressed unindif- 
 ferency. Mansell v. B., 8 E. d: B.5i; Dears. & B. 375 : 27 L. J. 
 (if. C.) 4. 
 
 Giving the prisoner in charge to the jury.'] — When a full jury have 
 been sworn [a juror who is unwilling from conscientious motives to 
 be sworn, may take the declaration prescribed by 30 dh 31 Vict. c. 35, 
 s. 8], in cases of treason and felony, the crier (at the assizes) makes 
 (proclamation in the following form : — " If any one can inform my 
 lords the Queen's justices, the Queen's attorney-general, or the Queen's 
 Serjeant, ere this inquest taken between our sovereign lady the Queen,,and 
 the prisoners at the bar, of amy treason, murder, felony or misdemeanor 
 committed or done by them or any of them, let him come forth, and he 
 shall be heard; for the prisoners stand at the bar upon their deliverance." 
 Oro. dr. Com. 6 {\Qth ed.); 2 B. d Ad. 256. The clerk of arraigns 
 then calls the prisoners to the bar, and says : — " Gentlemen of the jury, 
 the prisoner stands indicted by the name of A. B., for that he, on the" 
 [etc., as in the indictment, to the end.] "Upon this indictment he has 
 been arraigned, and upon his arraignment he has pleaded that he is not 
 guilty : Your chajrge therefore is, to inquire whether he be guilty or not 
 guilty, and to hearken to the evidence." See 5 T. B. 314. As to the 
 mode of giving the prisoner in charge to the jury where he is in- 
 dicted for any offence punishable under the Larceny Act (24 S 25 
 
Trial. 159 
 
 Vict. c. 96), committed after a previous conviction, see s. 116 of that 
 act : and as to the mode of giving the prisoner in charge to the jury 
 where he is indicted for an offence against the Coin Act (24 S 26 
 Vict. c. 99), committed after a previous conviction for an offence 
 against any act relating to the coin, see s. 37 of that act. 
 
 In cases of misdemeanor the jury are not charged, but the counsel 
 for the prosecution at once proceeds to open the case, and call wit- 
 nesses in support of the indictment. 
 
 Case, for the prosecution.'] — When the prisoner is given in charge 
 to the jury, the counsel for the prosecution, or, if there be more than 
 one, the senior counsel, opens the case to the jury, stating the leading 
 facts upon which the prosecution rely. In doing so he ought to state 
 all that it is proposed to prove, as well declarations of the prisoners as 
 facts, so that the jury may see if there be a discrepancy between the 
 opening statements of counsel, and the evidence afterwards adduced 
 in support of them ; per Parhe, B., R. v. Hartel, 7 C. & P. 773 : 
 R. V. Davis, Id. 785 ; unless such declarations should amount to a 
 confession, where it would be improper for counsel to open them to 
 the jury. Per Bosanqiiet, J., and Patteson, J., ^ C. & P. 548 : per 
 Parke, B., 1 C.&P. 786 ; per Bolland, B., Id. lib. The reason for 
 this rule is, that the circumstances under which the confession was 
 made may render it inadmissible in evidence. The general effect only 
 of any confession said to have been made by a prisoner ought, there- 
 fore, to be mentioned in the opening address of the prosecuting 
 counsel. When any addition3,l evidence, not mentioned in the opening 
 speech of counsel, is discovered in the course of a trial, counsel is not 
 allowed to state it in a second address to the Jury. R. v. Courvoisier, 
 Q C. <& P. 362. It may further be remarked, that in opening a case for 
 murder, the counsel for the prosecution may put hypothetically the 
 case of an attack upon the character of any particular witness for the 
 crown, and say that should any such attack be made he shall be pre- 
 pared to meet it. Per Tindal,C.J.,a7id Parlce,B.,Id. 3&2. He may 
 also, as it was ruled by the same learned judges, read to the jury the 
 observations of a judge in a former case, as to the nature and effect 
 of circumstantial evidence, provided he adopts them as his own 
 opinions, and makes them part of his address to the jury. And in 
 R. V. Dowlin^g, Central Criminal Court, 1848, the attorney- general 
 having, in his opening address to the jury, made reference to dis- 
 turbances in Ireland, Erie, J., held, on objection made, that such 
 reference was not irregular, it being laid down in books of evidence 
 that allusion might be made in courts of justice to notorious matters, 
 even of contemporaneous history. MS. 
 
 As to the order of proof, the mode of examining witnesses, and the 
 evidence necessary to support the case for the prosecution, see post. 
 Part II., Evidence. 
 
 The counsel for the prosecution is now entitled, in certain cases, 
 at the close of the examination of his witnesses, to sum up his evi- 
 dence. This right was first given, and the circumstances under which 
 it may be exercised are defined, by 28 Vict. c. 18, s. 2, the first clause 
 of which enacts that : — " If any prisoner or prisoners, defendant or 
 defendants, shall be defended by counsel, but not otherwise, it shall 
 be the duty of the presiding judge, at the close of the case for the 
 prosecution, to ask the counsel for each prisoner or defendant so de- 
 fended by counsel whether he or they intend to adduce evidence, 
 and in the event of none of them thereupon announcing his intention 
 
160 Trial. 
 
 to adduce evidence, the counsel for the prosecution shall be allowed 
 to address the jury a second time in support of his case, for the pur- 
 pose of summing up the evidence against such prisoner or prisoners, 
 or defendant or defendants." 
 
 In exercising this right of summing up evidence it is not proper 
 for the counsel for the prosecution to comment on the absence of 
 witnesses for the defence, unless it might be fairly expected that wit- 
 nesses should be called, or to urge on a trial for rape, as an argu- 
 ment for conviction, that otherwise the character of the prosecutrix 
 would be blasted. R. v. Rvdland, 4 F. <& F. 495 : B. v. Puddick, 
 Id. 497. Nor is it the duty of counsel for the prosecution to sum 
 up in every case in which the prisoner's counsel does not call wit- 
 nesses. The statute gives him the right to do so, but that right 
 ought only to be exercised in exceptional cases, such as where erro- 
 neous statements have been made and ought to be corrected, or when 
 the evidence differs from the instructions. The counsel for the pro- 
 secution is to state his case before he calls the witnesses ; then when 
 the evidence has been given, either to say simply, " I say nothing," 
 or " I have already told you what would be the substance of the evi- 
 dence, and you see the statement which I made is correct ;" or, in 
 exceptional cases, to say, " something is proved different to what I 
 expected," and add any suitable explanation which is required. R. v. 
 Solchester, 10 Cox, 226, per Blackburn, J. ; R. v. Berens, i F. <& F. 
 842, S. a See aho R. v. Webb, i F. <& F. 862. 
 
 The defence.'] — Where a prisoner is undefended, he cross-examines 
 the witnesses for the prosecution if he thinks fit, or the judge does 
 so on his behalf It may be mentioned also, that where the defendant 
 himself wishes to address the jury, and to examine and cross-examine 
 witnesses, he will be allowed to do so, and his counsel will also be 
 allowed to argue any points of law that may arise in the course of 
 the trial, and to suggest questions to him for the cross-examina- 
 tion of the witnesses ; R. v. Parkins, Ry. & M. 166 ; but he cannot 
 have counsel to examine and cross-examine the witnesses, and re- 
 serve to himself the right of addressing the jury. R. v. White, 3 
 Camp. 98. 
 
 [As to the cross-examination of witnesses, see post, Pa/rt 11., 
 Sect. 4.] 
 
 Where two prisoners are jointly indicted, and are defended by 
 different counsel, each counsel cross-examines and addresses the jury 
 for his client, in the order of seniority at the bar ; but where the 
 judge thinks it desirable, he will permit the counsel to cross-examine 
 and address the jury, not in the order of seniority, but in that in 
 which the names stand on the indictment; per Rolfe, B., 2 M.& Rob. 
 417 ; and this course was allowed by Oresswell, J., York Spr. Aas. 
 1852, MS.; and see R. v. Barber, 1 C. & K. 434. Where the pri- 
 soner is defended by counsel, he will not, unless under some very 
 special circumstances, be allowed to make his statement to the jury 
 before his counsel addresses them. R. v. Rider, S C. dk P. 539: R. 
 V, Malings, lb. 242 : R. v. Manzano, 2 F. <& F. 64. Where two pri- 
 soners are indicted together, and one of them only is defended by 
 counsel, it seems to be in the discretion of the judge whether he will 
 allow the prisoner who is undefended to make his statement to the 
 jury before or after the address of counsel. Where A., B. and C. 
 were jointly indicted, and separately defended, and at the close of 
 the case for the prosecution C. was acquitted, and was then called as 
 
Trial. 161 
 
 a witness for A., and his evidence tended to criminate B., it was held 
 that B.'s counsel had a right to cross-examine C, and to reply. E. 
 V. Burdett, Dears. 431 ; 24 L. J. {M. C.) 63. 
 
 The counsel for the prisoner, or the prisoner himself, is now en- 
 titled, at the close of the examination of his witnesses, to sum up his 
 evidence. This right was first given by the 28 Vict. c. 18, s. 2, the 
 former part of which section has bee;i given ante,p. 159, and which pro- 
 ceeds as follows : — " And upon every trial for felony or misdemeanor, 
 whether the prisoners or defendants, or any of them, shall be de- 
 fended by counsel or not, each and every such prisoner or defendant, 
 or his or their counsel respectively, shall be allowed, if he or they 
 shall think fit, to open his or their case or cases respectively ; and 
 after the conclusion of such opening or of all such openings, if more 
 than one, such prisoner or prisoners, or defendant or defendants, or 
 their counsel, shall be entitled to examine such witnesses as he or 
 they may think fit, and when all the evidence is concluded to sum 
 up the evidence respectively : and the right of reply, and practice 
 and course of proceedings, save as hereby altered, shall be as at 
 present." 
 
 The repZ?/.]— If the defendant gives any evidence, whether written 
 or parol, the counsel for the prosecution has the right to reply, and 
 this right is expressly reserved by the 28 Vict. c. 18, s. 2, supra. 
 Even if the evidence for the defendant be only to his character, it 
 gives, in strictness, a right of reply, although the right is seldom 
 exercised in such case. T C. & P. 676; 6 L. J. {M. C.) 37; R. v. 
 Dowse, 4: F. <& F. 492. And even if the defendant's counsel, in 
 addressing the jury, introduce new matter' (whether it be the 
 prisoner's own account of the transaction or not), without intending 
 to support it by evidence, it has been said that the prosecutor will 
 be entitled to a reply. E. v. Beard, 8 C. (& P. 142: E. v. Butcher, 
 i M. & Eoh. 228. The better opinion, however, is that no such 
 right can be claimed, though the judge in his discretion might, in a 
 flagrant case, permit its exereise. 1 Tayl. Evid. 380 {4th erf.), and 
 authorities there cited. If two prisoners are indicted jointly for the 
 same oflFence, and one call witnesses, it seems that the counsel for 
 the prosecution is entitled to a general reply: but if the offences are 
 separate, and they might have been separately indicted, he can reply 
 only on the case of the party who had called witnesses. E. v. Hayes, 
 2 M. & Eoh. 155: R. v. Jordan, 9 C. d P. 118. Whenever the 
 defendant gives evidence to prove new matter by way of defence, 
 which the crown could not foresee, the counsel for the prosecution is 
 entitled to give evidence in reply to contradict it. See E. v. Frost, 
 9 C. <& P. 159. As to the right of reply by the attorney-general, 
 and in prosecutions by a government office, in which the counsel 
 for the prosecution states that he appears as the representative of 
 the attorney-general, see cmte, p. 109. 
 
 Bill of exceptions.'^ — For some time it appears to have been con- 
 sidered clear law that a bill of exceptions would not lie in any 
 criminal case; Sir Henry Vane's case, 1 Si4. 85; 1 Keble, 324; 1 Lev. 
 68 ; Kelyjige, 15 ; afterwards it seemed to be the opinion that it 
 might be tendered in cases of misdemeanor. E. v. Bishop of Coventry y 
 1 Leon. 6: E. v. Higgins, 1 Vent. 366: E. v. Nutt, 1 Barnard, 307: 
 R. V. Preston (Inhah.), Eep. temp. Hard. 251; 2 Str. 1040. In the 
 case of E. v. Alleyne, Q. B., Dec. 1, 1851, where the defendants 
 
162 Trial. 
 
 were indicted for obtaining money by false pretences, and for a con- 
 spiracy to defraud, a bill of exceptions was tendered to the admis- 
 sibility of certain documents in evidence; it was remarked by Lord 
 Campbell, C. J., that it was the first time he had ever known a bill 
 of exceptions in a criminal case ; but after hearing arguments at 
 chambers, his lordship sealed the bill of exceptions, leaving the 
 question whether it would lie to be argued in the court of error. MS. 
 But his lordship subsequently stated, that having further considered 
 the matter, and conferred with other judges, he was of opinion that 
 no bill of exceptions lies in any criminal case, not even in a case of 
 misdemeanor. B. v. Brown and others, Q. £., Feb. 1858 : B. v. 
 Esdaile, \ F. & F. 213. See also Dears. 509 ; B. v. Jelly, 10 Cox, 
 553. 
 
 It has been said that if a challenge, whether to the array or to the 
 polls, be overruled without demurrer, the ruling of the judge may be 
 made the subject of a bill of exceptions. Bac. Abr. Juries, (E.) 12; 
 Skin. 101; 2 Inst. 427; sed qumre; see above, and Mansell v. B., 8 E. 
 (fe £. 54; Dears. & B. 375; 27 L. J. (M. C.) 4. 
 
 In cases of treason and felony a bill of exceptions has never been 
 allowed. 1 St. Tr. f. 938; 2 Hawh. c. 46, sect. 1; Bac. Abr., Bill of 
 Exceptions. In a case of felony. In re Haynes and Bice, 3 Jones & 
 Latouche, 568, Sir E. Sugden, Lord Chancellor of Ireland, 1846, 
 refused a writ for a bill of exceptions ; saying, that, " having regard 
 to the terms of the 13 Edw. 1, and of the Irish Act, 28 G. 3, c. 31, 
 and the authorities that a bill of exceptions cannot be taken in a case 
 like this, particularly Sir Ban-y Van^s case, 2 Barg. St. Tr. 450, 
 and B. v. O'Donnell, 1 Bud. dk Br. 439, and having regard to the 
 circumstance that there is no authority in favour of the Statute of 
 Westminster applying to a criminal case like this, he was of opinion, 
 on a review of all the circumstances, that the application should not 
 be granted." 
 
 Adjournment oftrial.l — If the trial is not concluded on the same 
 day on which it began, the judge has authority to adjourn it from 
 day to day, without the defendant's consent. B. v. Stone, 6 T. R. 
 530 : B. V. Eardy, 24 St. Tr. 418. In such case, the jury, on a trial 
 for treason or felony, are (and in all criminal cases may be) kept 
 together during the night, under the charge of officers of the court; 
 but in misdemeanors they are generally allowed to return to their 
 homes for the night, being charged not to converse with any person 
 on the subject of the trial. See B. v. Kinnear, 2 B. & Aid. 462. 
 Where the witnesses for the prosecution have all been examined, the 
 court may order the case to be adjourned, and direct another trial to 
 be proceeded with, in order to give time for the production of a thing 
 essential to the proof deposited at a distance. B. y. Wenbom, 6 Jw. 
 267. And on a trial for murder, before Maule, J., at York, Dec. 
 1848, where, after the opening address of the counsel, it was dis- 
 covered that, in consequence of the detention of the railway train, 
 the witnesses for the prosecution had not arrived in the city, the trial 
 was adjourned, the jury were locked up, a fresh jury was called into 
 the jury box, and another case was proceeded with. B. v. Foster, 3 
 C. & K. 201. Where a juror was sworn in a wrong name, and the 
 objection was taken before verdict, the same learned judge, at the 
 same assizes, intimated that the proper course was to discharge the 
 jury, and try the prisoners again ; although, there being in that case 
 a second indictment against the prisoners, such a course was there 
 
Verdict and Judgment. 163 
 
 not necessary. R. v. Metcalfe MS. It has been held that the trial 
 must proceed, although in the course of the proceedings it is dis- 
 covered that one of the jurors is related to the prisoner on trial, 
 as that fact was a ground of challenge. JR. v. Wardle, C. d Mar. 
 647. Where a prisoner indicted for felony, with whom the jmy were 
 charged, was by sudden illness rendered incapable of remaining at 
 the bar, the jury were discharged, and the prisoner on recovering 
 was tried before another jury; M. v. Stevenson, 2 Leach, 546; and in 
 a case of misdemeanor, where the prisoner became ill and was carried 
 out of court, the judge discharged the jury, being of opinion that 
 the consent of his counsel, that the case should proceed in the ab- 
 sence of the defendant, was not, under such circumstances, sufiBcient; 
 and if a prisoner so taken ill recovers during the assizes, he may be 
 put on his trial again, the proceeding being, of course, begun de novo. 
 B. V. Streeh, 2 C. & P. 413. 
 
 [As to the discharge of the jury, when they cannot agree as to 
 their verdict, see post, Sect. 2.] 
 
 [As to trial under the Criminal Justice Act, 18 <& 19 Vict. c. 126, 
 see post. Book II., Part I., Ch. I., Sect. 1.] 
 
 Sect. 2. 
 
 verdict and judgment. 
 
 Verdict.^— The verdict of the jury must, in all cases of treason and 
 felony, be delivered in open court, in the presence of the defendant. 
 In cases of misdemeanor, the presence of the defendant during the 
 trial is not essential. Co. Litt. 227 h; 3 Inst. 110; Bac. Abr., Ver- 
 dict (B.) It is doubtful whether a verdict can be received and re- 
 corded on Sunday. Winsor v. R., L. R., 1 Q. B. 317, 322 ; 35 L. J. 
 (if. C) 121. The verdict is delivered by the foreman ; and the assent 
 of all the jurors to a verdict pronounced by the foreman in the pre- 
 sence and hearing of the rest, without their express dissent, is to be 
 conclusively presumed. The verdict in a criminal case is either 
 general, on the whole charge (which the jury are at liberty to find 
 in all cases, both upon the law and fact of the case ; Co. Litt. 228 ; 
 4 Bla. Com. 361; 32 G. 3, c. 60): or partial, as to a part of the 
 charge ; as where the jury convict the defendant on one or more 
 counts of the indictment, and acquit him of the residue ; or convict 
 him on one part of a divisible count, and acquit him as to the residue ; 
 or special, where the facts of the case alone are found by the jury, 
 the legal inference to be derived from them being referred to the 
 court. Where several defendants are included in the same indict- 
 ment, the jury may find one guilty and acquit the others, and so vice 
 versa; and now, under 24 & 25 Vict. c. 96, s. 94, the jury may do 
 so, even where the prisoners are jointly charged with a felonious 
 receiving : see ante, p. 69. But if several be indicted for a riot, 
 and .the jury acquit all but two, they must acquit those two also, 
 imless it be charged in the indictment, and proved, that they com- 
 mitted the riot together with some other person not tried upon that 
 indictment. 2 Hawk. c. 47, s. 8. And if, upon an indictment for a 
 conspiracy, the jury acquit all the defendants but one, they must 
 acquit that one also, unless it be charged in the indictment, and 
 proved that he conspired with some other person not tried upon that 
 
164 Verdict and Judgment. 
 
 indictment. 2 Hawk. c. 47, s. 8 ; and see R. v. Thompson, 16 Q. B. 
 832; 20L.J.iM. G)183. 
 
 By 14 (£• 15 Vict. c. 100, «. 9, after reciting that offenders often 
 escape conviction by reason that such persons ought to have been 
 charged with attempting to commit offences, and not with the 
 actual , commission thereof; fer remedy thereof it is enacted, that 
 " if, on the trial of any person charged with any felony or misdemea- 
 nor, it shall appear to the jury upon the evidence that the defendant 
 did not complete the offence charged, but that he was guilty only of 
 an attempt to commit the same, such person shall not by reason 
 thereof be entitled to be acquitted, but the jury shall be at liberty 
 to return as their verdict that the defendant is not guilty of the 
 felony or misdemeanor charged, but is guilty of an attempt to com- 
 mit the same, and thereupon such person shall be liable to be 
 punished in the same manner as if he had been convicted upon an 
 indictment for attempting to commit the particular felony or misde- 
 meanor charged in the said indictment ; and no person so tried as 
 herein lastly mentioned shall be liable to be afterwards prosecuted 
 for an attempt to commit the felony or misdemeanor for which he 
 was so tried." Upon this clause the defendant can only be convicted 
 of the attempt to commit the very offence with which he is charged. 
 R. V. M'Pherson, Dears. <& B. 197; 26 L. J. (M. C.) 134 ; nor can the 
 jury convict under it of an attempt which is made felony by statute, 
 but only of an attempt which is a misdemeanor. R. v. Connell, 6 
 Cox, 178. An indictment charged H. with rape, and W. with aiding 
 and abetting in the rape. The jury found H. guilty of attempting 
 to commit a rape, and W. of aiding H. in the attempt. It was con- 
 tended that this finding amounted to an acquittal of W. as the case 
 was not within s. 9 of 14 c6 15 Vict. c. 100. The objection was how- 
 ever overruled, and the conviction of W. for misdemeanor was 
 affirmed. R. v. Hapgood, L. R., 1 C. C. R. 221. 
 
 By 14 <& 15 Vict. c. 100, s. 12, " if, upon the trial of any person for 
 any misdemeanor, it shall appear that the facts given in evidence 
 amount in law to a felony, such person shall not by reason thereof be 
 entitled to be acquitted of such misdemeanor ; and no person tried 
 for such misdemeanor shall be liable to be afterwards prosecuted for 
 felony on the same facts, unless the court before which such trial may 
 be had shall think fit, in its discretion, to discharge the jury from 
 giving any verdict upon such trial, and to direct such person to be 
 indicted for felony, in which case such person may be dealt with in 
 all respects as if he had not been put upon his trial for such misde- 
 meanor." 
 
 The juiy have a right, in all criminal cases, to find a special verdict. 
 Such verdict must state positively the facts themselves, and not 
 merely the evidence adduced to prove them, and all the facts neces- 
 sary to enable the court to give judgment must be found ; for the 
 court cannot supply by intendment or implication any defect in the 
 statement. 2 Hawk. c. 47, «. 9 ; 2 East, P. G. 708, 784 : see R. v. 
 Francis, 2 Stra. 1015 : R. v. Royce, 4 Burr. 2073 ; 1 Chit. Crim. L. 
 643. Thus, where the indictment alleged that the defendant dis- 
 charged a gun against the deceased, and thereby gave him a mortal 
 wound, and the special verdict stated only that the defendant dis- 
 charged a gun and thereby killed the deceased, riot stating in terms 
 that it was discharged against him ; it was held that the court could 
 not give any judgment against the defendant. R. v. Plummer, Kel. 
 111. So where the indictment charged a robbery, from the person, 
 
Verdict and Judgment. 165 
 
 and the proof was of a taking up of the prosecutor's money from the 
 ground in his presence ; and the special verdict, though it stated that 
 the defendant struck the money out of his hand, and immediately 
 took it up, was held insuiBcient, because it did not expressly find that 
 he was present at the taking up. JR. v. Francis, 2 Stra. 1016. But 
 if the jury find all the substantial requisites of the charge, they are 
 not bound to follow in terms the technical language of the indict- 
 ment. Thus where the defendant was charged with forgery of a 
 bank-note, and the special verdict stated that he erased and altered 
 it by changing the word "two" into "five," this was held sufficient. 
 R. v. Dawson, 1 Stra. 19. So, where an indictment for murder enu- 
 merated three wounds, and the special verdict mentioned one only, 
 this was held not to be a fatal variance. S. v. Morgan, 1 Bulstr. 81. 
 So, where the evidence need not correspond precisely with the state- 
 ment in the indictment (see post. Part II., Ch. I.), the special verdict 
 will be good, although in the same respects it vary from the state- 
 ment in the indictment ; as where the fact is found to have occurred, 
 in a case of a transitory nature, at a different place within the juris- 
 diction of the court, or, where time is immaterial, on a day different 
 from that stated in the indictment. 6 Co. 47 ; 2 Moll. Ahr. 689. If 
 the Verdict do not state the time when the facts occurred, it seems 
 the court will intend them to have happened in the order in which 
 the jury have stated them. R. v. Keite, 1 Ld. Raym. 142. The jury 
 need not, and indeed ought not, after stating the facts, to draw any 
 legal conclusion, for that is the province of the court : and if they do 
 so, and the inference drawn by them is an erroneous one, the court 
 will reject it as superfluous, and pronounce nevertheless the judgment 
 warranted by the facts stated. See 1 Chit. Crim. L. 645, arid the cases 
 there cited. A special verdict is not amendable as to matters of fact ; 
 but a mere error of form may be amended, even, as it seems, in 
 capital cases, in order to fulfil the evident intention of the jury, where 
 there is any note or minute to amend by. 2 Hawh. c. 47, s. 9 : R. v. 
 Hayes, 2 Stra. 844 : R. v. Hazel, 1 Leach, 382 : R. v. Woodfall, 
 5 Burr. 2661. If three offences are charged in the indictment, and 
 the special verdict state evidence which applies to two of them only, 
 the court may adjudge the defendant guilty of those two, and enter 
 an acquittal as to the residue. R. v. Hayes, supra. The court can- 
 not, however, on an indictment for felony, adjudge the defendant 
 guilty of a misdemeanor. R. v. Westheer, 2 Stra. 1133. But where 
 it appears clearly from the facts stated in the special verdict, that 
 the defendant has been guilty of a crime, though not of the degree 
 charged upon him in the indictment, the court will not discharge 
 him, but direct a fresh indictment to be preferred. R. v. Francis, 
 2 Stra. 1015. Where the verdict is so imperfect that no judgment 
 can be given upon it, a venire de novo may, in misdemeanors, be 
 awarded ; R. v. Woodfall, 5 Burr. 2661 ; and also, notwithstanding 
 previous doubts upon the subject, in felonies ; Campbell v. R., 11 Q. 
 B. 799; 17 L. J. {M. C.) 89 ; in which case, says Blackburn, J., de- 
 livering judgment in Winsor v. R., 35 L. J. (M. C.) 133, "there is a 
 solemn decision of the Queen's Bench, not reversed or questioned, 
 that a venire de novo will lie in a felony on an imperfect verdict." 
 In cases of felony, the court may enter a judgment of acquittal, where 
 thefacts found by the special verdict do not warrant a judgment against 
 the defendant : see R. v. Huggins, 2 Ld. Raym. 1585 ; but this will be 
 no bar to another prosecution for the same felony. R. v. Burridge, 3 
 
166 Verdict and Judgimnt. 
 
 P. Wms. 480; Com. Dig., Indictmmt, (N.) A verdict is not vitiated 
 by surplusage. 2 Hawk. c. 47, s. 10. 
 
 A judge is not bound (unless the jury insist on having it recorded) 
 to receive the first verdict which the jury give, but may direct them 
 to reconsider it. The verdict which the jury ultimately return is the 
 true verdict to be recorded. R. v. Meany, L. & C. 213 ; 32 L. J. 
 (M. C.) 24 : per Pollock, C. B., in R. v. Yeadon, L. cfe C. 81 ; 31 
 L. J. (M. C.) 70 ; Cromp. 114; 2 St. Tr. 60. The jury themselves 
 may, before the verdict is recorded (or even promptly after the verdict 
 is recorded, B. v. Parkin, 1 Moo. C. C. 46), rectify their verdict, and 
 it will stand as ultimately amended. 1 Chit. Onm. L. 647. This 
 may be done even after the defendant has been discharged (in pur- 
 suance of a supposed verdict of acquittal) out of the dock, if before 
 the jury have left the box. R. v. Voddem, Dears. 229 ; 23 L. J. (M. C.) 7. 
 Where a criminal case has been tried at Nisi Prius, the postea may be 
 amended, on sufficient cause shown, where there is a judge's note or 
 other sufficient document to show that it is incorrect. R. v. Virrier, 
 12A.<&E.3n ; 9 L. J. (M. C.) 120 : and seeR. v. King^ 7 Q. B. 782. 
 Where an indictment contains two counts for misdemeanor, to which 
 the defendant pleads not guilty, and the finding of the jury is guilty 
 on the second count (without noticing the first), whereupon judgm'ent' 
 is passed, such judgment is not affected by reason of no finding being 
 entered on the first count. Latham v. R., b B. & S. 635 ; 33 L. J. 
 {M. C.) 197. 
 
 Upon the delivery of the verdict, if the defendant be thereby ac- 
 quitted on the merits, he is for ever free and discharged from that 
 accusation, and is entitled to be immediately set at liberty, unless 
 there be some other legal ground for his detention. If he be ac- 
 quitted from some defect in the proceedings, so that the acquittal 
 could not be pleaded in bar of another indictment for the same 
 oflfence (see ante, p. 130), he may be detained to be indicted afresh. 
 As to persons acquitted on the ground of insanity, see amte, p. 21. 
 If the defendant be convicted, it is thereupon demanded of him by 
 the court, in cases of treason and felony, what he has to say why the 
 court should not proceed to judgment against him ; and if this (which 
 is called the allocutus) do not appear on the record when made up, 
 it will be bad on writ of error. R. v. Geary, 2 Salk. 630 ; Antm., 3 
 Mod. 265. It is not necessary to demand of the defendant why the 
 court should not proceed to judgment a/nd execution against him. 
 O'Brien v. R., 2 Ho. L. Ca. 465. In misdemeanors, it is not usual 
 thus to call upon the defendant before judgment. Wliere the in- 
 dictment was found in the court of Queen's Bench, or removed into 
 that court by certiorari, it was necessary in all cases, before the stat. 
 11 G. 4 c6 1 PF. 4, c. 70, for the prosecutor to enter a rule for judg- 
 ment on the postea, and to bring it into court, in order to enable the 
 judge to pass sentence. But by the ninth section of that statute it 
 is provided, " that, upon all trials for felonies or misdemeanors upon 
 any record of the court of King's Bench, judgment may be pronounced 
 during the sittings or assizes by the judge before whom the verdict 
 shall be taken, as well upon the persons who shall have suffered judg- 
 ment by default or confession, upon the same record, as upon those 
 who shall be tried and convicted, whether such persons be present or 
 not in court, excepting only where the prosecution shall be by infor- 
 mation filed by leave of the court of King's Bench, or such cases of 
 informations filed by his Majesty's attorney-general, wherein the 
 
Verdict and Judgmmt 167 
 
 attorney-general shall pray that the judgment may be postponed; and 
 the judgment so pronounced shall be endorsed upon the record of 
 Niii Prius, and afterwards entered upon the record in court, and 
 shall be of the same force and effect as a judgment of the court, unless 
 the court shall, within six days after the commencement of the 
 ensuing term, grant a rule to show cause why a new trial should not 
 be had or the judgment amended : and it shall be lawful for the judge 
 before whom the trial shall be had either to issue an immediate order 
 or wan-ant for committing the defendant in execution, or to respite 
 the execution of the judgment, upon such terms as he shall think fit 
 until the sixth day of the ensuing term ; and in case imprisonment 
 shall be part of the sentence, to order the period of imprisonment to 
 commence on the day on which the party shall be actually taken to 
 and confined in prison." See, as to this statute, R. v. Cox, 4: C. d; P. 
 538 : P. V. Woodward, lb. 540, n.: P. v. Lhyd, A P.& Ad. 135; 2 
 L. J. {K. P.) 214 ; 1 Chit. Crim. L. 653. As to the process, after 
 verdict, to bring in the defendant to receive judgment, see post. 
 If the jury are unable to agree upon their verdict without retiring 
 from their box, they withdraw to a convenient place appointed for 
 that purpose, an officer being sworn to keep them "without meat, 
 drink, or fire, candlelight only excepted ; to sufier none to speak to 
 them, nor to speak to them himself, except only to ask them whether 
 they are agreed, without leave of the court." 2 Hale, 296. And 
 the jury must not, until they are agreed, separate or leave the place 
 appointed for their deliberations, without the special permission of 
 the court. Co. Litt. 227 h; 4 Pla. Com. 360. If the jury, before 
 giving their verdict, eat or drink, though for this they may be fineable, 
 it does not avoid their verdict ; 1 Inst. 227; see A P. & Aid. 681; and 
 with the assent of the judge they may, in case of necessity, have rea- 
 sonable refreshment. Doct. & Stud. 158, 272. It was said, however, 
 in Winsor v. P., L. P., 1 Q. P. 308, 317; 35 L. J. (M. G) 121, that 
 there is no satisfactory authority which establishes that refreshment 
 can be given to a jury after they have retired to deliberate. But 
 now 33 <& 34 Vict. c. 77, s. 23, enacts, that "jurors, after having been 
 sworn, may, in the discretion of the judge, be allowed at any time 
 before giving their verdict the use of a fire when out of court, and be 
 allowed reasonable refi-eshment, such refreshment to be procured at 
 their own expense." 
 
 The/orm of entry of the verdict on the record is as follows : — After 
 the similiter (ante,p. 139) comes the award of ueniVg, thus: — " There- 
 fore let a jury thereupon here immediately come before the said justices 
 of our lady the Queen last above mentioned, and others their fellows 
 
 aforesaid, of free and lawful men of the said county of , by whom 
 
 the truth of the matter may be the better hnoum, and who a/re not of hin 
 to the said J. S., to recognize upon their oath whether the said J. S. be 
 guilty of the felony in the indictment above specified, or not guilty ; 
 because as well the said J. N., who prosecutes for our said lady the 
 Queen in this behalf, as the said J. S., have put themselves upon the 
 saidjwy. And the jurors of the said jury, by the sheriff for this pur- 
 pose impamelled and returned, to wit [naming them] , being called, come : 
 who, to speak the truth of and concerning the premises being chosen, 
 tried cmd sworn, upon their oath say, that the said J. S. is guilty [or 
 not guilty^ of the felony aforesaid, on him above charged, in manner 
 and form aforesaid, as by the said indictment is above supposed against 
 him." 
 
 The allocutus then follows thus : — " And thereupon it is forthwith 
 
168 Verdict and Judgment. 
 
 demanded of the said J. S., if he hath or hnoweth anything to say why 
 the said jiistices here might not upon the premises and verdict aforesaM 
 to proceed to judgment against him; who nothing further saith, unless 
 as he had before said. Whereupon," etc. [continuing with the judg- 
 ment, as post.'] 
 
 Discharge of jwry.] — It has been said that, in the case of a trial 
 at the assizes, the jury, if they do not agree before the judges depart 
 the county, may be carried with them to the borders of the county, 
 or, {iccording to some authorities, from place to place through the 
 circuit, until they are unanimous : 2 Hale, 297 ; Bac. A br. Juries, (G.) ; 
 1 Vent. 97. This dictum, however, rests on no foundation of judicial 
 decision or actual practice, and if it was ever law, which seems 
 doubtful, is not so at the present day. Winsor v. B., L. R., 1 Q. B. 
 326; 35 L. J. (M. C.) 121. It has also been said to be a general 
 rule of law, "that a jury sworn and charged in case of life or mem- 
 ber, cannot be discharged by the court or any other, but they ought 
 to give a verdict." Co. Lift. 227 6. See also 3 Inst. 110; Bro. Abr. 
 JEkquest.30; Carth.i05; Bac. Abr., Juries, (O.); 2 Hawk. c.iT, s.l; 
 Fost. 29-39. This doctrine, however, which, if taken literally, seems 
 to command the confinement of the jury till death if they do not 
 agree, is too broadly stated by Lord Cohe, and was denied to be law 
 in Ferrar's case. Sir T. Raym. 84, (an indictment for forgery,) where 
 it is laid down as having been "resolved by all the justices, that 
 although the jury be charged and sworn in the case of a plea of the 
 crown, yet a juror may be drawn or the jury dismissed, contrary to 
 common tradition which hath been held by many learned in the law." 
 And it may now be considered as established law that a jury sworn 
 and charged with a prisoner, even in a capital case, may be dis- 
 charged by the judge at the trial, without giving a verdict, if a 
 "necessity," that is, a high degree of need, for such discharge is 
 made evident to his mind. Winsor y. R., L. R., 1 Q. B. 289; Id. 390 
 {Exch. Chamb.); 35 L. J. (M. C.) 121; Id. 161 (Exch. Chamk): R. 
 V. Shields, 28 St. Tr. 414: R. v. Cobhett, 3 Bum's J. 98 (30^ ed.); 4 
 Bla. Com. 360. The judge alone is to decide upon the existence ol 
 such necessity, and his decision is not subject to review. Winsor v. 
 R., ubi supra. Where the jury, on atrial for murder at the assizes, 
 were locked up fi-om the middle of the day until the following morn- 
 ing, and then, on their being sent for into court, stated that it was 
 impossible they should ever agree, and that was the first day of 
 business at the next assize town, whereupon the judge discharged 
 them, it was held that he was warranted by law in doing so. R. v. 
 Newton, 13 Q. B. 716; 18 L. J. (M. C.) 201. It seems, indeed, to 
 have been held in one ease, that the mere lapse of a considerable 
 time during which the jury have not agreed will not warrant the 
 judge, in a capital case, in discharging them, though they state 
 that there is no probability of their agreeing ; Conway v. R., 7 Irish 
 Law R. 149 ; but this case is now overruled by Winsw v. R., ubi 
 
 If one of the jury die before the delivery of the verdict, the re- 
 maining eleven will be discharged, and a new jury may be at once 
 sworn or a new juror added to the eleven, and the defendant tried 
 by them, or (if necessary) remanded to the next assizes. R. v. Gonld, 
 3 Bum's J. 98 (30th ed.). So also, if one of the jurors be taken so ill 
 that he is not able to proceed with the trial. R. v. Scalbert, 2 Leach, 
 620; In case another juror is so added to the eleven, they must be 
 sworn anew, and the prisoner must again have his challenges. B. 
 
Verdict and Judgment. 169 
 
 V. Edwards, R. & R. 224; 4 Taunt. 309. Where, in the course of a 
 trial, one of the jurors, without leave, left the jury box and also the 
 court, whereupon the jury was discharged, and a fresh one em- 
 panelled for the trial of the prisoner, it was held that this was the 
 only course that could have been adopted. R. v. Ward, 10 Cox, 573. 
 And so where in the course of a trial it was discovered that a person 
 was on the juiy who was not on the jury panel, and who had by 
 mistake been summoned as a juryman, the juiy were discharged, and 
 a fresh jury constituted by taking another juryman in the place of 
 the one who had served in mistake. R. v. Phillips, 11 Cox, 142. 
 
 It has been also held, that in order to let a prisoner into a ground 
 of defence which he could not otherwise have taken, the court might. 
 Try his consent, discharge the jury, and that the doing so would not 
 bar any further proceedings. Kinloch's case. Fast. 31 : R. v. Stokes, 
 6 C. & P. 151. The jury has also been discharged, or a juror with- 
 drawn, in a criminal case, on account of the sudden illness of a wit- 
 ness; 2 St. Tr. 832; R. v. Streek, 2 C. <& P. 413; and so, also, where 
 material witnesses had been kept away by collusion; 1 Vent. 69 ; 
 or even were absent by accident; sed qucere; R. v. Jeffs, 2 Burr, 
 984; Fast. 24; 2 Sale, 295. In R. v. Charlesworth, \ B. <& S. 460; 
 31 L. J. (M. C.) 25, all the judges who decided that case expressed a 
 strong opinion against the propriety of discharging the jury, merely 
 because the case for the prosecution fails for want of evidence, and 
 in the hope that further evidence may be got on a second trial. 
 
 It would seem to be the better opinion that the discharge of the 
 jury without giving a verdict is a matter of practice in the dis- 
 cretion of the judge at the trial, and that although the power with 
 which he is thus invested ought not to be exercised without very 
 strong reasons, yet that it may be exercised without any absolute 
 " necessity." Thus, where a material and necessary witness for the 
 prosecution refused to answer a question put to him, and, although 
 informed by the judge that he was bound to do so, persisted in such 
 refusal, and was thereupon adjudged to be guilty of a contempt of 
 court, and fined and imprisoned, the judge, on the application of the 
 counsel for the prosecution, and against the will of the defendant, 
 discharged the jury. R. v. Charlesworth, 1 F. & F. 326, Hill, J. 
 The course pursued in this case by Mr. Justice Hill was afterwards 
 questioned in the court of Queen's Bench, and although it did not be- 
 come necessary to give judgment upon its propriety, Blackhum, J., 
 expressed an opinion that it was right, which opinion seems to have 
 been shared by Cockbum, C. J., who denied that the rule laid down 
 in 4 Bla. Com. 360, that "the jury cannot be discharged, unless in 
 cases of evident necessity, till they have given in their verdict," 
 is a true or correct exposition of the law as practised in our day. 
 Wightman, J., and Crompton, J., on the other hand, thought the dis- 
 charge of the juiy by Mr. Justice Hill, under the circumstances 
 mentioned above, was improper. R. v. Charlesworth, 1 B.S S. 460; 
 31 L. J. {M. C) 25. 
 
 A defence founded on the improper discharge of the juiy cannot 
 be taken by plea, for the only pleas known to the law founded upon 
 a former trial are pleas of a former conviction, or a former acquittal, 
 for the same offence ; but if the former trial has been abortive with- 
 out a verdict, there has been neither a conviction nor an acquittal. 
 Winsm- v. R., L. R., 1 Q. B. 395 ; 35 L. J. (M. C.) 161 {Exch. 
 Chamh.). And the discretion exercised by the judge in this respect, 
 at all events where he discharges the jury on the ground oi necessity, 
 
170 Verdict and Judgment. 
 
 of the existence of which necessity it is for him alone to determine, 
 cannot be reviewed in any way. Winsor v. i?., ubi supra. And 
 quwre, whether the exercise, upon any ground, of his discretion by 
 the judge to discharge the jury is subject to review. B. v. Charles- 
 worth, IB.&S. 460; 31 L. J. (M. C.) 25. 
 
 Arrest of judgment.'] — The defendant may, at any time between the 
 conviction and the sentence, but not afterwards, move the court in 
 arrest of judgment. 32 G. 3, c. 60, s. 4. This motion can be grounded 
 only on some objection arising on the face of the record itself; and 
 no defect in the evidence, or irregularity at the trial, can be urged in 
 this stage of the proceedings. But any want of sufficient certainty 
 in the indictment, as in the statement of time or place (where ma- 
 terial), of the person against w'hom the offence was committed, or of 
 tlie facts and circumstances constituting the offence, or otherwise, 
 which has not been amended during the trial, and is not aided by the 
 verdict (see ante, p. 37 et s«q.), will be a ground for arresting the judg- 
 ment. We have already seen {ante. Chap. I., Sect. 3) what defects 
 of form are aided by verdict, or have become altogether immaterial, 
 under the stats. 7 6r. 4, c. 64, ss. 20, 21, and 14 S 15 Vict. c. 100. 
 Although the defendant himself omits to make any motion in arrest 
 of judgment, the court, if on a review of the case it be satisfied that 
 the defendant has not been found guilty of any offence in law, will 
 of itself arrest the judgment. 1 East, 146. If the judgment be ar- 
 rested, all the proceedings are set aside, and judgment of acquittal 
 is given; but this will be no bar to a fresh indictment. Com. Dig., 
 Indictment, {N.) ; 4 Bep. 45 a; 4 Bla. Com. 376. 
 
 Where a statute upon which an indictment is founded was repealed 
 after the finding of the indictment, but before plea pleaded, the court 
 arrested the judgment. B. v. Inhabitants of Denton, Dears. 3 ; 18 
 Q. B. 761 ; 21 L. J. (M. C) 207: see also B. v. Inhabitants of Maw- 
 gan in Meneage, S A. & E. 496; 7 L. J. (M. C.) 98; B. v. M'Kemie, 
 B. & B. 429. 
 
 Process after verdict and before judgment.'] — Wherever it is neces- 
 sary that a defendant found guilty by verdict of a jury should be 
 present in court when judgment is pronounced against him (seeB.y. . 
 Chichester, 17 Q. B. 504, n.), if he is at large and will not voluntarily 
 attend in court, process may be issued for the purpose of bringing 
 him up to receive judgment, in the same way as process is issued for 
 the purpose of bringing an offender into court to answer to an indict- 
 ment found or information filed against him, and he is liable upon it 
 to be prosecuted to outlawry. (See ante, pp. 78, 83.) If a defendant 
 be under recognizance to appear and receive sentence in the court of 
 Queen's Bench, notice of the intention to bring him up for judgment 
 on a day specified is served on such defendant and his bail ; and in 
 default of appearance after such notice served and appearance re- 
 quired according to the course and practice of the court, the recog- 
 nizances, in the discretion of the court, will be estreated, and a 
 warrant issued for his apprehension, or a capias for proceeding to 
 outlawry. 
 
 Judgment!] — The judgments or sentences assigned by our law to 
 the various crimes which are the subject of indictment, will be found 
 in the subsequent part of this work, under their appropriate heads. 
 There are, however, certain general statutory provisions relating to 
 
Verdict and Judgment. 171 
 
 punishments and sentences which are collected here for facility of 
 reference hereafter. 
 
 A3 TO EECOEDING SENTENCE OP DEATH. 
 
 4 G. 4, c. 48,s. 1.] — Whenever any person shall be convicted of 
 any felony, except murder, and shall by law be excluded the benefit 
 of clergy in respect thereof, and the court before which such oifender 
 shall be convicted shall be of opinion that, under the particular cir- 
 cumstances of the case, such offender is a fit and proper subject to 
 be recommended for the royal mercy, it shall and may be lawful for 
 such court, if it shall think fit so to do, to direct the proper oflicer 
 then being present in court to requu-e and ask, whereupon such 
 officer shall require and ask, if such offender hath or knoweth 
 anything to say why judgment of death should not be recorded 
 against such offender, and in case such offender shall not allege 
 any matter or thing sufficient in law to arrest or bar such judgment, 
 the court shall and may and is hereby authorized to abstain from 
 pronouncing judgment of death upon such offender, and instead of 
 pronouncing such judgment to order the same to be entered of 
 record, and thereupon such proper officer as aforesaid shall and may, 
 and is hereby authorized to enter judgment of death on record 
 against such offender, in the usual and accustomed form, and in such 
 and the same manner as is now used, and as if judgment of death 
 had actually been pronounced in open court against such offender by 
 the court before which such offender shall have been convicted. 
 
 It will be seen that this statute excepts murder from the cases in 
 which death might be recorded, but by the combined effect of this 
 statute and 6 tfc 7 TT. 4, c. 30, s. 2, which is now repealed by 24 <& 25 
 Vict. c. 95, death might also be recorded in cases of murder. R. v. 
 Hogg, 1 M.& Rob. 380. This, however, is no longer so, for by 
 24 & 25 Vict. c. 100, s. 2, " upon every conviction for murder the 
 court shall pronounce sentence of death." 
 
 AS TO PENAL SERVITUDE. 
 
 The 16 16 17 Vict. c. 99 introduced this punishment in lieu of trans- 
 portation in certain cases and under certain regulations; but ss. 1, 2, 
 3 and 4 of that act were repealed by 20 & 21 Vict. c. 3, s. 1, infra. 
 The following enactments are all those authorizing and regulating 
 sentences of penal servitude, which it appears to be necessary to set 
 out here : — 
 
 16 & 17 Vict. c. 99, s. 6 — Place and mode of confinement of offen- 
 ders sentenced to penal servitude— Sard labour."] — Every person 
 whounder this act shall be sentenced or ordered to be kept in penal 
 servitude may, during the term of the sentence or order, be confined 
 in any such prison or place of confinement in any part of the United 
 Kingdom, or in any river, port, or harbour of the United Kingdom, 
 in which persons under sentence or order of transportation may now 
 by law be confined, or in any other prison in the United Kingdom, 
 or in any part of her Majesty's dominions beyond the seas, or in any 
 port or harbour thereof, as one of her Majesty's principal secretaries 
 of state may from time to time direct ; and such person may during 
 such term be kept to hard labour, and otherwise dealt with in all 
 respects as persons sentenced to transportation may now by law be 
 dealt with while so confined. 
 
 l2 
 
172 Verdict and Judgment. 
 
 20 <fe 21 Vict c. 3.1— Recites 16 S 17 Vict. c. 99 and («. 1) repeafo 
 SI, 1, 2, 3 and 4 of i!/je recited act. 
 
 Sect. 2 — Penal servitude substituted for transportation.'] — After the 
 commencement of this act [\st July, 1857], no person shall be 
 sentenced to transportation ^ and any person who, if this act and the 
 said act had not been passed, might have been sentenced to trans- 
 portation, shall, after the commencement of this act, be liable to be 
 kept in penal servitude for a term of the same duration as the term 
 ■of transportation to which such person would have been liable if the 
 said act and this act had not been passed ; and in every case where, 
 at the discretion of the court, one of any two or more terms of trans- 
 portation might have been awarded, the court shall have the like 
 discretion to award one of any two or more of the terms of penal 
 servitude which are hereby authorized to be awarded instead of such 
 terms of transportation : provided always, that amy person who might 
 at the discretion of the court have been sentenced either to transpor- 
 tation for any term or to any period of imprisonment, shall be liable 
 at the discretion of the court to be sentenced either to penal servi- 
 tude for the same term, or to the same period of imprisonment ; and 
 in any case in which before the passing of the said act sentence of 
 seven years' transportation might have been passed, it shall be lawful 
 for the court m its discretion to pass a sentence of penal servitude ot 
 not less than three years Incrw five years, 27 (6 28 Vict. c. 47, «. 2, 
 infra'\. 
 
 Sect. 3 — "Comieyance of convicts 'beyond the seasl\ — Any person 
 now or hereafter under sentence or order of penal servitude may, 
 during the term of the sentence or order, be conveyed to any place 
 or places beyond the seas to which offenders under sentence or order 
 of transportation may be conveyed, or to any place or places beyond 
 the seas Which may be hereafter appointed as herein mentioned; 
 and all acts and provisions now applicable to and for the removal 
 and transportation of offenders under sentence or order of trans- 
 portation to and from any places beyond the seas, and concerning 
 their custody, management, and control, and the property in their 
 services, and the punishment of such offenders if at large without 
 lawful cause before the expiration of their sentence, and all other 
 provisions now applicable to and in ;the case of persons under sen- 
 tence or order of transportation, shall apply to and in the ■case of 
 persons under sentence or order of penal servitude, as if they were 
 persons under sentence or order of transportation. 
 
 See*. 6 — Interpretation of tertmsT\ — Where in any enactment now 
 in force the expression "any crime punishable with transportation," 
 or any expression of the like import, is used, the enactment shall be 
 construed and take effect as appIicalDle also to any crime punishable 
 with penal servitude. 
 
 Sect. 7 — Acts to be read together..'] — ^The said act of the 16th and 17th 
 years of her Majesty and this act shall be read and construed toge- 
 ther as one act. 
 
 27 & 28 Vict. c. 47, s. 1.] — This act shall be construed as one with 
 16 & 17 Vict. c. 99 and 20 d: 21 Vict. c. 3. 
 
Verdict and Judgment, 173 
 
 Sect. 2— Length of sentences of penal servitude.'] — No person shall 
 be sentenced to penal servitude in respect to any offence committed 
 after the passing of this act for a period of less than five years, and 
 where under any act now in force a period of less than five years is 
 the utmost sentence of penal servitude that can be awarded, a period 
 of five years shall, in respect to any offence committed after the 
 passing of this act, in such act be substituted for the less period; 
 and where under any act now in force a period of either less or more 
 than five years may be awarded as a sentence of penal servitude, the 
 least sentence of penal servitude that can be awarded under that act 
 shall, in respect to any offence committed after the passing of this 
 act, be a period of five years ; and where any person shall on indict- 
 ment be convicted of any crime or offence punishable with penal 
 servitude, after having been previously convicted of felony, or, io 
 Scotland, of any crime (whether such previous conviction shall have 
 taken place upon an indictment or under the provisions of the act 
 18 & 19 Vict. c. 126), the least sentence of penal servitude that can 
 be awarded in such case shall be a period of seven years. 
 
 AS TO THE PUNISHMENT OF FELONIES NOT PUNISHABLE BY 
 PARTICULAR STATUTES. 
 
 7 (£ 8 (?. 4, c. 28, s. 8.] — Every person convicted of any felony not 
 punishable with death shall be punished in the same manner pre- 
 scribed by the statute or statutes specially relating to such felony ; 
 and every person convicted of any felony, for which no punishment 
 hath been, or hereafter may be, specially provided, shall be deemed 
 to be punishable under this act, and shall be liable, at the discretion 
 of the court, to be transported beyond the seas for the term of seven 
 years \now penal servitude for not more than seven nor less than five 
 years, 20 cfc 21 Vict. c. 3, s. 2 ; 21 d; 28 Vict. c. 47, s. 2, supra}, or to. 
 be imprisoned for any term not exceeding two years ; and, if a male, 
 to be once, twice or thrice publicly or privately whipped (if the court 
 shall so think fit), in addition to such imprisonment. 
 
 7 <fc 8 Gr. 4, c. 28, s. 9— Place and mode of imprisonment.'] — Where 
 any person shall be convicted of any offence punishable under this 
 act, lor which imprisonment may be awarded, it shall be lawful for 
 the court to sentence the offender to be imprisoned, or to be im- 
 prisoned and kept to hard labour in the common gaol or house of 
 correction, and also to direct that the offender shall be kept in soli- 
 tary confinement [see 7 W. 4: £ 1 Vict. c. 90,. s. 5, infra'], fer the 
 whole or any portion or portions of such imprisonment, or of such 
 imprisonment with hard labour, as to the court in its discretion shall 
 seem meet. 
 
 AS TO SENTENCE FOR FELONY WHERE CONVICT IS UNDER PREVIOUS 
 
 SENTENCE.. 
 
 7 <fi 8 ff. 4, c. 28, s. 10.] — Wherever sentence shall be passed for 
 felony on a person already imprisoned under sentence for another 
 crime, it shall be lawful for the court to. award imprisonment for the 
 subsequent offence, to commence at the expiration of the imprison- 
 ment to which such person shall have bee^n previowsly sentenced ; 
 and where such person shall be already under sentence, either of im- 
 prisonment or of transportation [penal servitude], the court, if em- 
 powered to pass sentence of transportation [penal servitude], may 
 
174 Verdict and Judgment. 
 
 award such sentence for the subsequent offence, to commence at the 
 expiration of the imprisonment or transportation [penal servitude] to 
 which such person shall have been previously sentenced, although 
 the aggregate term of imprisonment or transportation [penal ser- 
 vitude] respectively may exceed the term for which either of those 
 punishments could be otherwise awarded. 
 
 So where a defendant is charged with several offences at the same 
 time, of the same kind, he may be sentenced to several terms of im- 
 prisonment or penal servitude, one after the conclusion of the other. 
 M. y. Williams, 1 Leach, 536. Where an indictment for misdemeanor 
 contained four counts, the third of which was held on error to be 
 bad in substance, and the defendant, being convicted on the whole 
 indictment, was sentenced to four successive terms of imprisonment 
 of equal duration, one on each count, it was held that the sentence 
 on the fourth count was not invalidated by the insufficiency of the 
 third count, and that the imprisonment on it was to be computed 
 from the end of the imprisonment on the second count. Gregory v. 
 i?., 15 Q. B. 974; 19 L. J. (Q. B.) 366. 
 
 AS TO DURATION OP SOLITARY CONFINEMENT. 
 
 7 TF". 4 (6 1 Vict. c. 90, s. 5.] — From and after the commencement 
 of this act it shall not be lawful for any court to direct that any 
 offender shall be kept in solitary confinement for any longer period 
 than one month at a time, or than three months in the space of one 
 year. 
 
 AS TO DISCRETION OP COURT WHERE STATUTE PRESCRIBES MINIMUM 
 
 SENTENCE. 
 
 9 <fe 10 Vict. c. 24, s. l.J — Recites, that in certain cases of felony the 
 court is not empowered by law to award sentence of transportation for a 
 less period than the term of the offender's life or some long term of years, 
 or sentence of imprisonment for any shorter term than two years ; but 
 it is desirable that some such offenders should suffer transportation or 
 imprisonment for a shorter period respectively, at the discretion of the 
 court before which they are convicted; and enacts, that in all cases 
 where the court is now by law empowered or required to award a 
 sentence of transportation exceeding seven years, it shall be lawful 
 for such court, at its discretion, to award a "sentence of transportation 
 for a term of years not less than seven years [now penal servitude for 
 not more than seven nor less than five years, 20 c§ 21 Vict. c. 3, s. 2 ; 
 27 & 28 Vict. V. 47, s. 2, supra], or to award such sentence of im- 
 prisonment for any period not exceeding two years, with or without 
 hard labour, as shall to the court in its discretion appear just under 
 all the circumstances. 
 
 AS TO PUNISHMENT OP COMMON LAW MISDEMEANORS. 
 
 The punishment of all common law misdemeanors, that is, of all 
 those crimes which do not amount to felony, and the punishment of 
 which has not been regulated by any statute, is fine or imprisonment, 
 or both, excepting, indeed, where the defendant is a max-ried woman, 
 who, as she has nothing to pay with, cannot be fined. Where sen- 
 tence of imprisonment is passed, the court may also order hard 
 labour in the case of the offences specified in 3 G. 4, c. 114 ; 14 <& 
 15 Vict. c. 100, «. 29, infra. The court may also require the de- 
 fendant to find sureties to keep the peace and be of good behaviour ; 
 
Verdict and Judgment. 175 
 
 and even a married woman may be required to find sucli sureties, 
 altliongh she cannot herself be bound by recognizance. 1 Suss. C. 
 & M., hy Greaves, 92 (ith, ed.), and authorities tliere cited. 
 
 AS TO SENTENCE OP HARD LABOUR FOR CERTAIN MISDEMEANORS. 
 
 3 G. 4, c. 114.] — Recites 56 G. 3, c. 162, and enacts, that whenever 
 any person shall be convicted of any of the offences thereafter spe- 
 ciiied and set forth : that is to say, . . . any attempt to commit 
 felony; any riot, . . . keeping a common gambling-house, a 
 common bawdy-house, or a common ill-governed and disorderly 
 house ; wilful and corrupt perjury, or of subornation of perjury ; 
 
 . . . in each and every of the above cases ; and whenever any 
 person shall be convicted of any or either of the aforesaid offences, 
 it shall and may be lawful for the court before which any such 
 offender shall be convicted, or which by law is authorized to pass 
 sentence upon any such offender, to award and order (if such court 
 shall think fit) sentence of imprisonment with hard labour, for any 
 term not exceeding the term for which such court may now imprison 
 for such offences, either in addition to or in lieu of any other pun - 
 ishment which may be inflicted on any such offenders, by any law 
 in force before the passing of this act; and every such offender shall 
 thereupon suffer such sentence, in such place and for such time as 
 aforesaid, as such court shall think fit to direct. 
 
 14 <fe 15 Vict. e. 100, s. 29.] — Whenever any person shall be con- 
 victed of any one of the offences following, as an indictable misde- 
 meanor ; that is to say, any cheat or fraud punishable at common 
 law ; any conspiracy to cheat or defraud, or to extort money or goods, 
 or falsely to accuse of any crime, or to obstruct, prevent, pervert, or 
 defeat the course of public justice; any escape or rescue from lawful 
 custody on a criminal chai-ge ; any public and indecent exposure of 
 the person ; . . . . any public selling, or exposing for public 
 sale or to public view, of any obscene book, print, picture, or other 
 indecent exhibition ; it shall be lawful for the court to sentence the 
 offender to be imprisoned for any term now warranted by law, and 
 also to be kept to hard labour during the whole or any part of such 
 term of imprisonment. 
 
 GENERAL PROVISIONS AS TO PUNISHMENTS IN THE CRIMINAL LAW 
 CONSOLIDATION ACTS. 
 
 Each of the Criminal Law Consolidation Acts of 1861, besides 
 affixing a specific punishment to each offence, contains certain general 
 provisions as to the punishment of offences committed against its 
 provisions. These general provisions will be found among the enact- 
 ments collected at the head of the titles " Larceny," Book II., Parti., 
 Ch.I, Sect. 1; " Arson," 7<Z. Sect, 5; " Forgery," 7<i. Sect.7; "Murder," 
 Id. Ch. II., Sect. 1; and " Coining," Id. Part II., Ch. I., Sect. 4:, post. 
 
 AS TO COMMITMENT OP JUVENILE OFFENDERS TO REFORMATORY 
 SCHOOLS. 
 
 29 <& 30 Vict. c. 117, s. 14.]— Whenever any offender who, in the 
 judgment of the court, justices or magistrate, before whom he is 
 chai'ged, is under the age of sixteen years, is convicted, on indict- 
 ment or in a summary manner, of an offence punishable with penal 
 
176 Verdict and Judgment. 
 
 servitude or imprisonment, and is sentenced to be imprisoned for the 
 term of ten days or a longer term, the court, justices or magistrate 
 may also sentence him to be sent, at the expiration of his period of 
 imprisonment, to a certified reformatory school, and to be there de- 
 tained for a period of not less than two years, and not more than five 
 years : Provided always, that a youthful offender under the age of 
 ten years shall not be so directed to be sent to a reformatory school 
 unless he has been previously charged with some crime or offence 
 punishable with penal servitude or imprisonment, or is sentenced in 
 England by a judge of assize or court of general or quarter sessions, 
 or in Scotland by a circuit court of justiciary or sheriff. The par- 
 ticular school to which the youthful offender is to be sent may be 
 named either at the time of his sentence being passed, or within seven 
 days thereafter, by the court, justices or magistrate who sentenced 
 him ; or in default thereof, at any time before the expiration of his im- 
 prisonment, by any visiting justice of the prison to which he is com- 
 mitted. In choosing a certified reformatory school, the court, jus- 
 tices, magistrate or visiting justice shall endeavour to ascertain the 
 religious persuasion to which the youthful offender belongs, and, so 
 far as is possible, a selection shall be made of a school conducted in 
 accordance with the religious persuasion to which the youthful 
 offender appears to the court, justices, magistrate or visiting justice 
 to belong, which persuasion shall be specified by the court, justices, 
 magistrate or visiting justice. 
 
 AS TO THE PUNISHMENT OF OFFENCES COMMITTED AFTER A PEEVIOUS 
 
 CONVICTION, see Book II., Pakt V., post. 
 
 The form of judgment, on conviction, is as follows : — " Wherefore 
 all and singular the premises being seen and filly vnderstood hy the 
 said court here, it is considered and adgvdged hy the said court here, 
 that the said J. S., for his said offence, be imprisoned," etc. etc., [as 
 the case may be.] The form in case of an acquittal (or an allowance 
 of a plea of pardon) is — " Whereupon all and singular the premises 
 being seen and fully vmderstood by the said court here, it is considered 
 and adjudged hy the said court here, that the said J. S. be discharged 
 of the premises, and do depart hence without delay in this behalf." 
 See Co. Ent. 366—390; Rast. Ent. 47, 51, etc. ; 2 Hah, 391; 1 Chitty's 
 Grim. L. 719. Where the judgment was, that the defendant, "for 
 the felony aforesaid," should be transported for ten years, and it ap- 
 peared that the indictment contained two counts, the offence charged 
 in the first count warranting a sentence of transportation for ten 
 years, but the other not, this was held bad on error, "felony" not 
 being nomen coUectivum. Campbell v. JR., 11 Q.B. 799, 814; 17 L. J. 
 (M. C.) 89. But " misdemeanor" is nomen collectivum : and therefore 
 if an indictment for misdemeanor contains several counts, all of 
 which are good in law, and all found by the jury to be proved, a 
 judgment of transportation or imprisonment " for the misdemeanor 
 aforesaid" is good. R. v. Powell, i B. & Ad. 75. See Ryalls v. R., 
 11 Q. B. 781, 795; 18 L. J. {M. C.) 69. But if any one count be 
 bad, a general judgment against the defendant " for his offences afore- 
 said" is also bad. O'Connelly. R., 11 Cla. S Fin. 165; see ante, 
 p. 13. 
 
 The court may, at any time during the same sessions or assizes, or 
 any adjournment thereof, vacate the judgment passed upon the de- 
 fendant, before it has become matter of record, and pass another less 
 
Verdict and Judgment. 177 
 
 or even more severe. Com. Dig., Indictment, (N.) ; Bac. Abr., Court 
 of Sessions; 2 Salh. 606 ; 6 East, 328 ; I M. & SeL 442. But when 
 once the judgment is solemnly entered on the record, no court can 
 make any alteration in it ; but if any material defect appear on the 
 face of it, it can still be reversed by lorit of error; the proceedings 
 in which we shall consider in a subsequent section. 
 
 Whether a person indicted for felony is of right entitled to a copy 
 of the indictment against him, after acquittal by verdict of the jury, 
 or on the bill being ignored by the grand jury, is a question on which 
 there is a conilict of authority. It is laid down, R. v. Brangan, 1 
 Leach, 27, that he is entitled to it ex dehito justitice ; and see 10 B. & 
 C. 73, note by reporters. The contrary is laid down by Lord Molt in 
 Groenvelt v. Burrell, 1 Ld. Eaym. 263. In cases of misdemeanor 
 there seems to be no doubt that a party acquitted is entitled to a 
 copy of the record. Morrison v. Kelly, 1 W. Bla. 385. See the 
 authorities on this subject collected, 2 Tayl. Eoid. 1268, 1269 (4ft 
 ed.); 3 Buss. C. & M., by Greaves, 349, 350 (ith ed). 
 
 Abolition of forfeitwre, etc., for treason or felony.'] — The 33 t6 34' 
 Vict. c. 23, s. 1, enacts, that " from and after the passing of this act 
 (4ft July, 1870), no confession, verdict, inquest, conviction, or 
 judgment of or for any treason or felony or felo de se shall cause any 
 attainder or corruption of blood, or any forfeiture (which word by s. 6 
 of the same statute does not include any fine orpemaUy imposed on any 
 convict by virtue of his sentence), or escheat ; provided that nothing 
 in this act shall affect the law of forfeiture consequent upon out- 
 lawry." It is no part of the object of this treatise to deal with the 
 effects of a conviction on the property of the defendant, except so far 
 as those effects are carried out and enforced by criminal courts. It 
 is, therefore, sufficient to mention here, that the statute to which 
 reference has just been made, while abolishing forfeiture for treason or 
 felony, contains a number of provisions with reference to the property 
 of convicts, i. e. as defined by s. 6, of persons against whom, after 
 the passing of the act, judgment of death, or of penal servitude, shall 
 have been pronounced or recorded by any court of competent juris- 
 dictioii in England, Wales or Ireland, upon any charge of treason or 
 felony. The object of these provisions appears to be to provide for 
 the payment out of such property of all just claims upon it, and, 
 while placing it out of the power of the convict during the con- 
 tinuance of his sentence, to provide for its management and to 
 secure its eventual return to himself or to his representatives. 
 
 Effect of conviction for treason or felony on capoicity for holding 
 office, etc., amd exercising certain civil rights.] — " If any person hereafter 
 (i. e. after ilh July, 1870, when the a,ct was passed) convicted of 
 treason or felony, for which he shall be sentenced to death, or 
 penal servitude, or any term of imprisonment with hard labour, or 
 exceeding twelve months, shall at the time of such conviction hold 
 any military or naval office, or any civil office under the crown or 
 other public employment, or any ecclesiastical benefice, or any place, 
 office or emolument in any university, college or other corporation, 
 or be entitled to any pension or superannuation allowance, payable 
 by the public, or out of any public fund, such office, benefice, em- 
 ployment or place shall forthwith become vacant, and such pension 
 or superannuation allowance or emolument shall forthwith determine 
 and cease to be payable, unless such person shall receive a free 
 pardon from her Majesty, within two months after such conviction, 
 
 l5 
 
177 a Verdict and Judgment. 
 
 or before the filling up of such office, benefice, employment or place 
 if given at a later period ; and such person shall become and (until 
 he shall have suffered the punishment to which he had been 
 sentenced, or such other punishment as by competent authority may 
 be substituted for the same, or shall receive a free pardon from her 
 Majesty) shall continue thenceforth incapable of holding any military 
 or naval office, or any civil office under the crown or other public 
 employment, or any ecclesiastical benefice, or of being elected or 
 sitting or voting as a member of either house of parliament, or of 
 exercising any right of suffrage or other parliamentary or municipal 
 franchise whatever within England, Wales or Ireland." 33 <& 34 Vict, 
 c. 23, s. 2. It will be observed, that this section only extends to con- 
 victions for treason or felony, for which the offender " shall be 
 sentenced to death, or penal servitude, or any term of imprisonment 
 with hard labour, or exceeding twelve months," and does not include 
 any convictions for misdemeanors. 
 
 Persons convicted of treason or felony may be condemned in costs."] — 
 "It shall be lawful for any court by which judgment shall be pro- 
 nounced or recorded, upon the conviction of any person for treason 
 or felony, in addition to such sentence as may otherwise by law be 
 passed, to condemn such person to the payment of the whole or any 
 part of the costs or expenses incurred in and about the prosecution 
 and conviction for the offence of which he shall be convicted, if to 
 such court it shall seem fit so to do ; and the payment of such costs 
 and expenses, or any part thereof, may be ordered by the court to 
 be made out of any moneys taken from such person on his appre- 
 hension, or may be enforced at the instance of any person liable to 
 pay, or who may have paid the same, in such and the same manner 
 (subject to the provisions of this act) as the payment of any costs 
 ordered to be paid by the judgment or order of any court of com- 
 petent jurisdiction in any civil action or proceeding may for the time 
 being be enforced; provided, that in the meantime and until the 
 recovery of such costs and expenses from the person so convicted as 
 aforesaid, or from his estate, the same shall be paid and provided for 
 in the same manner as if this act had not passed ; and any money 
 which may be recovered in respect thereof from the person so con- 
 victed, or from his estate, shall be applicable to the reimbursement 
 of any person or fund by whom or out of which such costs and 
 expenses may have been paid or defrayed." 33 d 34 Vict. c. 23, s. 3. 
 The discretionary power given by this section to condemn the con- 
 vict in costs does not apply to convictions for misdemeanor. There 
 seems to be no reason why a person convicted of perjury or of 
 obtaining goods by false pretences should not be condemned in costs 
 as well as a person convicted of larceny or burglaiy. 
 
 ^ Cowrt may order compensation to persons defrauded h/ felony.] — " It 
 shall be lawful for any such court as aforesaid (i. e.for any cowrt by 
 which judgment shall he pronounced or recorded, see s. 3, supra), if it 
 shall think' fit, upon the application of any person aggrieved, and 
 immediately after the conviction of any person for felony, to award 
 any sum of money, not exceeding one hundred pounds, by way of 
 satisfaction or compensation for any loss of property suffered by the 
 applicant through or by means of the said felony, and the amount 
 awarded for such satisfaction or compensation shall be deemed a 
 judgment debt due to the person entitled to receive the same from 
 the person so convicted, and the order for payment of such amount 
 may be enforced in such and the same manner as in the case of any 
 
Verdict and Judgment. 117 b 
 
 costs ordered by the court to be paid under the last preceding 
 section (see s. 3, supra) of this act." 33 S 34 Vict. c. 23, s. 4. The 
 discretionary power given by this section is far more extensive than 
 the power conferred by the 24 <& 26 Vict. e. 96, s. 100 (post, p. 305), 
 and if it is exercised in every case to which it may in strictness be 
 applicable will compel a criminal court at the close of many trials 
 for felony to enter upon complicated inquiries involving the expen- 
 diture of a large amount of time and labour. It is probable, however, 
 that criminal courts will decline to exercise the powers _ thus con- 
 ferred upon them except in veiy simple cases, and will, in the 
 majority of instances, leave the applicant to enforce his rights by 
 the ordinary civil procedure. It is to be noticed that the powers 
 given by s. 4, as well as those given by s. 3, supra, do not refer to 
 misdemeanors, and that they are limited to cases where the appli- 
 cant has sustained a loss of property. In the case of serious personal 
 injuries, caused by a felonious act, no compensation could be 
 awarded under this section in respect of the personal injuries. And 
 even where the personal injuries, caused by the felonious act, had 
 incapacitated the prosecutor from earning his livelihood, it would 
 seem that this would not be such a loss of property as would form 
 the subject of compensation under this section. 
 
 Jteprieve.'] — A reprieve is the withdrawal of the sentence for an in- 
 terval of time, whereby the execution of it is suspended ; and it may 
 be granted either by the Queen, or by the court empowered to award 
 the execution. iBla. Com. 395 ; 1 Hale, 368 ; 2 Hale, 412 ; 2 Hawk, 
 c. 51, s. 8 ; 1 Chitty's Grim. L. 758. A reprieve is grantable by the 
 crown at its mere discretion ; and it is grantable by the court at its 
 discration, whenever substantial justice requires it. In two cases the 
 court is hound to grant a reprieve. First, where the prisoner under 
 sentence, being a female, is pregnant. 3 Inst. 17 ; and see authorities 
 cited supra. Secondly, where the prisoner becomes insane after judg- 
 ment pronounced against him. 3 Inst. 4 ; 4 Bla. Com. 395. Where 
 a female, upon a, capital conviction, alleges, or the court has other- 
 wise reason to suppose, that she is pregnant, the law is, that a jury of 
 twelve matrons shall be empanelled and sworn to try whether or liot 
 she is quick with child ; and in case they shall find in the affirmative, 
 the com-t is to respite such offender until she shall be delivered of a 
 child, or it is no longer possible in the course of nature that she 
 should be so delivered. The forms of oaths to such jury of matrons 
 are as follow : — 
 
 " You, as forematron of this jury, shall swear that you will search 
 and try the prisoner at the bar, whether she be with child of a quick 
 child, and thereof a true verdict give, according to your skill and under- 
 standing. — So help you God." 
 
 The oath to each of the other matrons is then administered : — 
 
 " The same oath which your forematron has taken on her part, you 
 shall well and truly observe and keep on your part. — So help you 
 God." 
 
 The judges of assize have the power of reprieve after their com- 
 mission is determined ; 8 Rep. Crim. L. 176 ; though the learned 
 commissioners observe, that the continuance of this power is said to 
 be rather of common usage than strict right. See 2 Hale, 12 ; 4 
 Bla. Com. 387 ; 2 Hawk. c. 2, s. 8. 
 
178 New Trial. 
 
 Discharge of prisoners.'] — It is provided by 14 G. 3, c. 20, that 
 every prisoner charged with any felony or any other crime, or as an 
 accessory thereto, before any court holding criminal jurisdiction 
 within England and Wales, against whom no bill of indictment shall 
 be found by the grand jury, or who on his or her trial shall be ac- 
 quitted, or who shall be dischai-ged for want of prosecution, shall be 
 immediately set at large in open court, without payment of any fee 
 or sum of money to the sheriflf, gaoler or keeper of the gaol or prison, 
 from whence he or she shall be so discharged and set at liberty, for 
 or in respect of such discharge. 
 
 Sect. 3. 
 new trial. 
 
 Where an indictment has been preferred in the Queen's Bench, or 
 has been removed into that court by certiorari, a new trial may, after 
 conviction, be moved for, on the ground that the prosecutor has omitted 
 to give due notice of trial, or that the verdict has been contrary to 
 evidence, or to the direction of the judge, or for the improper reception 
 or rejection of evidence, or other mistake or misdirection of the judge, 
 or for any gross misbehaviour of the jury among themselves, or for 
 surprise, or for any other cause where it shall appear to the court that 
 a new trial will further the ends of justice. 2 Hawk. P. C. c. 4, s. 
 12 ; 3 Bla. Com 387 ; 1 CUtty's Crim. L. 664 : R. v. Fowler, iB.S 
 Aid. 273 : H. v. Whiiehouse, Dears. 1. But where there appears to 
 be sufficient evidence to support the indictment, after rejecting any 
 improper evidence which may have been received, the rule for a new 
 trial will be refused. 1 East, P. C. 354 ; Ji. & R. 88. It was for- 
 merly considered that no new trial could be granted in a case of 
 treason or felony, where the proceedings had been regular ; & T. R. 
 638; Bum's J., New Trial; 1 Chitty's Crim. L. 652 ; Comer's Cr. 
 Prac. 161 ; but the court of Queen's Bench, in a modem case, where 
 the record was before that court, ordered a new trial in a case of 
 felony, on the ground that evidence had been improperly admitted, 
 and that the jury had been misdirected. R. v. Scaife, 2 Dera. 281 ; 
 20 L. J. (M. C.) 229 ; 17 Q. B. 238. It has, however, since been 
 decided, ai'ter a careful review of R. v. Scaife, supra, that no new trial 
 can be granted in a case of felony. R. v. Bertrarid, L. R., 1 Priv. Coun. 
 520 : Att.-Gen. of New South Wales v. BertrarwL, 36 L. J. (Priv. Coun.) 
 51, (S. C. See also R. v. Murphy, L. R., 2 Priv. Coun. 535 ; 38 L. J. 
 (Priv. Coun.) 53, post, p. 179. An inferior court cannot grant a dbw 
 trial, either in a civil or a criminal case, on the merits, though it can 
 do so where there has been some irregularity in the proceedings. 2 
 Tidd's Prac. 905 ; 13 East, 416, n. (6) ; Burris J., New Trial: R. v. 
 Day, Sayer, Rep. 203 : R. v. Peters, 1 Burr. 568 ; Bac. Abr., Trial, 
 (i.) : R. V. Mayor of Oxford, 3 Nev. ^ M. 2. 
 
 Where the jury process has been misawarded, the court of error 
 will direct a venire de novo to a court of quarter sessions. Campbell 
 V. R., 11 Q. B. 799 ; 17 L. J. {M. C.) 89. \_Seepost, Sect. 5.] 
 
 The following is the form in such a case, after prayer of judgment : 
 — '^And because it appears to the said court here that the said verdict 
 so given against O. W. K. as aforesaid was unduly given ; therefore the 
 said verdict is by the court here vacated and made void, a/nd all other 
 process ceasing against the jury before impanelled, the sheriff of , etc., is 
 commanded so that he cause a jury anew thereupon to come, etc., by 
 whom the truth of the matter may be better hnovm," etc. [And see R. v. 
 Mawbey, 6 T. R. 619, 640.] 
 
New Trial. 179 
 
 After acquittal of the defendant, in general, a new trial will not 
 be granted, either in cases of misdemeanor or felony. B. v. Mann, 
 4:M.<& Sel. 337: R. v. Wandmorth, \ B. & Aid. 63: R. v. Sutton, 5 
 B. S Ad. 52; 2, L. J. (M. C.) 75. But in cases of misdemeanor, 
 where the verdict has been obtained by fraud of the defendant, or 
 in consequence of irregularity in his proceedings, as by keeping 
 back witnesses for the prosecution, or neglecting to give due notice 
 of trial, a new trial will be granted. So also, in cases where the 
 object of the proceeding substantially is to try a right, and the ver- 
 dict would bind the right, as in cases of indictments for non-repair 
 of a highway or a bridge, a new trial may be had after verdict for 
 the defendant, if evidence have been improperly received, or there 
 have been misdirection, or a verdict contrary to the evidence. R. v. 
 Inhab. of West Riding, 2 East, 353, n. : R. v. Charley, 12 Q. B. 515 : 
 R. V. Crichhde, 3 E. <& B. 947, n. : R. v. Russell, i E. & B. 942 ; 23 
 L. J. (M. C.) 173. An indictment for obstructing a navigation, or a 
 highway, was holden not to be within this latter rule, inasmuch as in 
 such a case the defendant is liable on conviction to fine and imprison- 
 ment, and the verdict of acquittal does not bind any right. R. v. 
 Russell, mpra: R. v. Johnson, 2 E. d; E. 613; 29 L. J. (M. C.) 133. 
 
 A verdict for a defendant in a case ot felony cannot be set aside, 
 although it be against evidence and the judge's direction. jB. v. Lea, 
 2 Mood, a a 9. 
 
 A new trial is allowed only in cases where there has been a general 
 verdict; where a special verdict has been returned, a venire de novo 
 is awarded. 1 Chitty's Orim. L. 654. Where a verdict appears so 
 imperfect that no judgment can be given upon it, or where it appears 
 upon the face of the record that the jury ought to have found par- 
 ticular facts differently from what they have, the court is bound to 
 grant a venire de novo. 1 Wils. 56 ; 1 Chitty's Crim. L. 654. And 
 if the jury find a verdict for a sum certain, according to a calculation 
 which does not warrant the amount, it is a ground for a new trial. 
 R. V. Grimwood, 1 Price, 367. And in cases of treason and felony, 
 as well as misdemeanor, whei-e there has been a mis-trial, a venire de 
 novo will be awarded and a fresh trial had thereon; as where the 
 jury have been improperly chosen or irregularly returned, or a chal- 
 lenge has been improperly disallowed, or there has been misconduct 
 on the part of the juiy. 2 Tidd's Prac. 922 : Witham v. Lewis, 
 1 Wils. 48 : R. v. Yeadon, L. & C.%\; 31 L. J. (M. C.) 70. It has, 
 however, been recently decided that in a case of felony, where the 
 indictment is good, and the prisoner has been given in charge to a 
 jury duly impanelled, chosen, and swoni, and a verdict has been 
 returned and judgment given, a venire de novo will not lie, although 
 there may have been conduct on the part of the jury which the court 
 considers unsatisfactory. R. v. Murphy, L. R., 2 Priv. Coun. 535 ; 
 38 L. J. {Pnv. Cmm) 53. The case of R. v. Fowler, i B. <& Aid. 
 273, which at first sight appears to be an authority to the contraiy, 
 was explained in R. v. Murphy, supra, to be in fact no decision on 
 this point. It seems that a venire de novo will lie in a felony on an 
 imperfect verdict, ^er Blackburn, J., in Winsor v. R., 35 L. J. (-K C.) 
 133, citing Campbellv. R., 11 Q. B. 799; 17 L. J. (M. C.) 89. When 
 a motion for a new trial is allowed, or a writ of venire facias de novo 
 awarded, the parties stand precisely as they did before the first trial, 
 and the whole of the facts are to be reheard. 
 
 It has been said that, as a general rule, no motion for a new trial 
 or for a venire de novo, in a criminal case, ought to be made after 
 
180 New Ti-ial. 
 
 motion in arrest of judgment ; but now the Court of Queen's Bench, 
 in its discretion, hears motions in arrest of judgment before appli- 
 cations for a new trial. R. v. Rowlands, 2 Den, 386 ; see 6 T. R. 
 627; iJac. Ahr., Trial, (i.) 1. No motion for a new trial is allowed, 
 unless the defendant, or, if more than one, the defendants who hare 
 been convicted, be present in court when the motion is made. R. 
 V. Lord Cochrane, 3 M. S Sel. 10, n.: R. v. Caudwell, 17 Q. B. 503; 
 2 Den. 372, n. ; 21 L. J. (M. C.) 48. But this rule does not apply 
 where the offence of which the defendant has been convicted is 
 punishable by a fine only ; R. v. Parkinson, 2 Den. 459 ; 21 L. J. 
 {M. C.) 48, m. 2 ; or where the defendant is in custody on criminal 
 process. R. v. Eollingberry, 4: B. d C. 329. "Where one or more 
 of several defendants have been convicted, and another or others 
 acquitted, a new trial may be granted with respect to the former 
 only. R. v. Gompertz, 9 Q- B. 824, 842. Affidavits of jurors are not 
 admissible to explain their verdict; but they may be read to repel 
 ■charges of misconduct on the part of the jury; and where there is a 
 doubt upon the judge's report as to what actually passed at the time 
 of delivering the verdict, information may be received either froirf 
 a iuryman or any person present when it was delivered. 6 Burr. 
 2667. 
 
 A motion for a new trial can only be made where an indictment 
 has been preferred in the Queen's Bench, or has been removed into 
 that court by certiorari; therefore, where a bill of indictment has 
 been found, and the trial has taken place, at the assizes for any city 
 or county, whether in a case of felony or misdemeanor, there are no 
 means of obtaining a new trial, except in the instance of a mis-trial. 
 And the Queen's Bench will not allow a certiorari to remove an in- 
 dictment and the proceedings thereon at the assizes, after verdict and 
 before judgment, in order to found an application for a new trial 
 npon the judge's report of the evidence, upon the ground that the 
 verdict was against evidence, and against the direction of the judge. 
 13 East, 411. It seems, however, that when a special verdict has 
 been found at the assizes, it may be removed by certiorari to be 
 argued and decided in the Queen's Bench. 1 Leach, 370; 2.Ld. 
 Raym. \bll. 
 
 The application for a new trial must ordinarily be made to the 
 court within the first four days of term next after the trial ; but ex 
 gratid, it may be made at a later period of the term ; and it has been 
 said that, if it appear to the court at any time before judgment, that 
 injustice has been done by the verdict, it will interpose and grant a 
 new trial. R. v. Holt, 5 T. R. 436; and see R. v. Birch, 9 Irish 
 Law Rep. 157. It appears, however, now to be established (at least 
 in the case of a eriminal information) that the motion must be made, 
 or an intimation given that the party intends to make it, within the 
 first four days of term next after the trial. R. v. Neumum, Dears. 
 %b;\E.&B. 268; 22 L. J. (fi. B.) 156. The motion is made 
 either upon the judge's notes of the trial, or upon affidavit. The 
 judge's notes are bespoken of the judge's clerk, as in civil cases. If 
 a rule nisi be granted, it is drawn up as upon any other motion. 
 Comer's Or. Prac. 162, and is served on the attorney for the prose- 
 cution; or if it be a ease where a new trial can be granted on the mo- 
 tion of a prosecutor, on the attorney for the defendant, and the asso- 
 ciate of the cii'cuit on which the ease was tried, in order that he may 
 retain the postea. It is then put into the new trial paper, with the 
 other new trials, and is called on in its turn. If the motion has been 
 
Court for Orovm Cases Reserved: 181 
 
 made on affidavits, they are filed, and the opposite party takes office 
 copies of them. When the case is called on for argument, the judge's 
 notes and the affidavits are read, and where there is a printed copy or a 
 short-hand writer's notes of the trial, the general accuracy of which 
 is spoken to by the counsel on both sides, copies of the report may, 
 for convenience sake, be referred to while the judge's notes are read; 
 see R. ^.-Rowlands, 2 Den. 364, where each of the judges was fur- 
 nished with a copy. The court then either makes the rule absolute 
 or discharges it, with or without costs. The following is the form of 
 a rule absolute for a new trial: — 
 
 Monday, 2 June. \ Upon hearing counsel on both sides, it is 
 
 Yorkshire. I ordered that the verdict of guilty obtained for 
 
 The Queen against ( the crown at the last Spring Assizes holden in 
 
 M. S. and T. R. j and for the county of York, in this prosecution, be 
 
 set aside, and a new trial had. 
 
 Mr. for the prosecution. 
 
 Mr. for the defendants. 
 
 Where a new trial is ordered of an indictment removed into the 
 court of Queen's Bench by certiorari, at the instance of the defendant, 
 the court may, in its discretion, order that the costs shall await the 
 event of the new trial. R. v. Whitehouse, Dears. 1; see R. v. Ford, 1 
 Nev. & M. 776. 
 
 When the rule has been made absolute, fresh notice of trial must 
 be given, and continuances entered on the record by awai'ds of venire 
 and distringas, and the case proceeds as if no trial had taken place. 
 The following is the form of a venire de novo at quarter sessions, in a 
 case of felony, where there has been a mis-trial : — 
 
 Therefore let a new jury come before the justices at the next general 
 quarter sessions of the peace, to be holden at Chichester, in and for the 
 said county, to try whether the defendants or either of them are guilty of 
 the premises in the indictment charged against them or not; because as 
 well W. B. L., who prosecutes for our lady the Queen, as the said 
 defendants, have pat themselves upon the jury : the same day, etc.; at 
 which last-mentioned general quarter sessions, holden at Chichester 
 aforesaid, on, etc., before, etc., justices of our said lady the Queen 
 assigned to keep the peace in the said county, also to hear and determine 
 divers felonies, etc., committed in the cownty aforesaid, come as well the 
 said W. B. L., who prosecutes for our lady the Queen, as the defendants 
 in their proper persons, etc. 
 
 Sect. 4. 
 
 court foe crown cases reserved. 
 
 The practice has long existed, where any objection was taken on 
 the part of a defendant, on a trial before any court of oyer and ter- 
 miner and gaol delivery, for treason or felony, either to the indict- 
 ment or the evidence, which the judge considered worthy of more 
 mature consideration, to take the opinion of the juiy upon the facts 
 proved, and to reserve the objection for the consideration of all the 
 judges, upon a case stated by the judge who presided at the trial : and 
 
182 Court for Orovm Cases Reserved. 
 
 if the judges, or a majority of tliem, were of opinion ttiat the objection 
 was well founded, the defendant was recommended to the crown for a 
 pardon. And the decisions of the judges on such crown cases reserved 
 are contained in a series of Reports. Upon a case so reserved, the 
 judges, although they heard counsel for the defendant, whenever he 
 thought fit to employ counsel to argue the objection before them, and 
 in that case heard counsel for the prosecution also, did not sit strictly 
 as a court, but rather as assessors to the judge who tried the case, and 
 the judgment ultimately pronounced was considered in law as his 
 judgment ; the reasons on which it was founded not being publicly 
 declared by the judges. And the courts of quarter sessions had no 
 power to reserve cases for the opinions of the judges at all. This 
 state of things being considered inexpedient and anomalous, a remedy 
 was provided by the stat. 11 & 12 Vict. c. 78 ; the first section of 
 which enacts, that when any person shall have been convicted of any 
 treason, felony, or misdemeanor, before any court of oyer and terminer 
 or gaol delivery, or court of quarter sessions, the judge or commis- 
 sioner, or justices of the peace (which words include the recorder of 
 a borough, R. v. Masters, 1 Den. 332 ; 18 L. J. (M. C.) 2), before 
 whom the case shall have been tried, may, in his or their discretion, 
 reserve any question of law which shall have arisen on the trial 
 (R. V. Clark, L. R., 1 C. C. R. 54 ; 36 L. J. (M. C.) 16) for the con- 
 sideration' of the justices of either bench and barons of the Exche- 
 quer, and thereupon shall have authority to respite execution of the 
 judgment on such conviction, or postpone the judgment, until such 
 question shall have been considered and decided, as he or they may 
 think fit ; and in either case the court in its discretion shall commit 
 the person convicted to prison, or shall take a recognizance of bail, 
 with one or two sufficient sureties, and in such sum as the court shall 
 think fit, conditioned to appear at such time or times as the court 
 shall direct, and receive judgment, or to render himself in execution, 
 as the case may be. 
 
 The second section enacts, that the judge, or commissioner, or 
 court of quarter sessions shall thereupon state, in a case signed in the 
 manner now usual, the question or questions of law which shall have 
 been so reserved, with the special circumstances upon which the same 
 shall have arisen, and such case shall be transmitted to the said jus- 
 tices and barons, and the said justices and barons shall thereupon have 
 full power and authority to hear and finally determine the said ques- 
 tion or questions, and thereupon to reverse, affirm or amend any 
 judgment which shall have been given on the indictment or inquisition 
 on the trial whereof such question or questions have arisen, or to 
 avoid such judgment, and to order an entry to be made on the record, 
 that in the judgment of the said justices and barons the party con- 
 victed ought not to have been convicted, or to arrest the judgment, 
 or order judgment to be given thereon at some other session of oyer 
 and terminer or gaol delivery, or other sessions of the peace, if no 
 judgment shall have been before that time given, as they shall be ad- 
 vised, or to make such other order as justice may require ; and such 
 judgment and order, if any, of the said justices and barons shall be 
 certified, under the hand of the presiding chief justice or chief baron, 
 to the clerk of the assize, or his deputy, as the case may be, who shall 
 enter the same on tlie original record in proper form ; and a certificate 
 of such entry, under the hand of the clerk of assize or his deputy, or 
 the clerk of the peace or his deputy, as the case may be, in the form 
 as near as may be or to the effect mentioned in the schedule annexed 
 
Court for Croum Cases Reserved. 1 83 
 
 to this act, with the necessary alterations to adapt it to the circum- 
 stances of the case, shall be delivered or transmitted by him to the 
 sheriff or gaoler in whose custody the person convicted shall be : and 
 the certificate shall be a sufficient warrant to such sheriff or gaoler, or 
 all other persons, for the execution of the judgment as the same shall 
 be so certified to have been affirmed or amended, and execution shall 
 be thereupon executed on such judgment, and for the discharge of the 
 person convicted from further imprisonment, if the judgment should 
 be reversed, avoided, or arrested; and, in that case, such sheriff or 
 gaoler shall forthwith discharge him ; and, also, the next court of oyer 
 and terminer and gaol delivery, or sessions of the peace, shall vacate 
 the recognizance of bail, if any ; and, if the court of sessions shall 
 be directed to give judgment, the said court shall proceed to give 
 judgment at the next session. 
 
 The form of the above-mentioned certificate is as follows : — 
 
 Whereas at the session of the peace for the cov/nty of , held on 
 
 , hefore , and others their fellows, [or at the session of oyer 
 
 and terminer and gaol delivery held for the county of , on ,] 
 
 before, among others, Sir S. M., hnight, one of the justices of the court 
 
 of , and , [here name the quorum commissioners, JasJices of 
 
 oyer and terminer, and gaol delivery,'] A. B., having been found guilty 
 cf felony, and judgment thereupon givem, that [state the substance], 
 tlie Court before whom he was tried reserved a certain question of law 
 for the consideration of the justices of either bench and the barons 
 of the Exchequer, and execution was thereupon respited in the mean- 
 time ; 
 
 This is to certify, that the said justices and barons having met in the 
 Exchequer Chamber, at Westminster [or Dublin, as the case may be] , 
 
 on the day of , it was considered by the said justices and 
 
 barons that the judgment aforesaid should be annulled, and an entry 
 made on the record, that the said A. B. ought not, in the judgment of 
 the said justices and barons, to have been convicted of the felony afore- 
 said ; and you are therefore hereby required forthwith to discharge the 
 said A. B. from your custody. 
 
 To the gaoler of , arid the sheriff of , and all others whom 
 
 it may concern. (Signed) E. F. 
 
 Cleric of the peace for the cov/nty of , 
 
 [or cleric of assize for , as the case may be.] 
 
 The third section enacts, that the jurisdiction and authority by this 
 act given to the said justices of either bench and barons of the Ex- 
 chequer, shall and may be exercised by the said justices and barons, 
 or five of them at least, of whom the lord chief justice of the court of 
 Queen's Bench, the lord chief justice of the Common Pleas, and the 
 lord chief baron of the court of Exchequer, or one of such chiefs at 
 least, shall be part, being met in the Exchequer Chamber, or other 
 convenient place, and the judgment or judgments of the said justices 
 and barons shall be delivered in open court, after hearing, counsel for 
 the parties, in case the prosecutor or the prisoner shall think it fit 
 that the case should be argued, in the like manner as the judgments 
 in the superior courts of common law at Westminster or Dublin, as 
 the case may be, are now delivered. 
 
 The fourth section provides, that the said justices and barons, where 
 a case has been reserved for their opinions, shall have power, if they 
 think fit, to cause the case or certificate to be sent back for amend- 
 
184 Court for Crown Cases Reserved, 
 
 ment, and thereupon the same shall be amended accordingly; see 
 R. V. Hey, 1 Den. 602 : R. v. Perkins, 2 Den. 459 ; and judgment 
 shall be delivered after it shall have been amended. The case will 
 not be sent back on the mere application of counsel, but only where it 
 appears to the court that it is imperfectly stated. R. v, Silttm, Bell, 
 24 ; 28 L. J. {M. C.) 28. The court will not interfere compulsorily 
 with the statement of a case reserved by a judge who, having had it 
 referred back to him, has returned it to the court substantially 
 the same as before. R. v. Studd, -10 Cox, 258. And, by the sixth 
 section, the forgery or false uttering of any of the documents before 
 mentioned, with intent to cause any person to be discharged from 
 custody, and otherwise prevent the due course of justice, is de- 
 clared to be a felony, punishable by transportation for any term 
 not exceeding ten years, or imprisonment, with or without hard 
 labour and solitary confinement, for any term not exceeding three 
 years. 
 
 Under this statute the judge has authority to reserve, and the 
 court to entertain, not only questions of law which are raised by the 
 evidence, but also questions of law which arise in aiTest of judg- 
 ment ; R. V. Martin, 1 Den. 398 ; 18 L. J. {M. C.) 137 ; or as to the 
 sufficiency of the indictment ; R. v. Webb, 1 Den. 338 : R. v. Orad- 
 doch, 2 Den. 31 r R. v. Garland, 11 Cox, 224: ; but not questions 
 which arise on demurrer; for as this court is empowered to hear and 
 finally determine, to entertain a question of demurrer would be to 
 take away the right of a prisoner to review the decision of the 
 Queen's Bench in the Exchequer Chamber, and ultimately in Par- 
 liament. R. v. Faderman, 1 Den. 565; 19 L. J. {M. C.) 147. [And 
 see Orders of Court, infra.'] The question of law reserved must be 
 one which arose on the trial, and therefore, where a man was indicted 
 for a misdemeanor and pleaded guilty, and the judge reserved the 
 question whether he ought not to have been indicted for a felony on 
 the same facts, the court refused to consider the case, on the ground 
 that no question of law arose on the trial. R. v. Clark, L. R., 1 C. C. 
 R. 54 ; 36 L. J. (M. C.) 16. Where it was discovered, on the day 
 after the conviction of a prisoner for felony, that one of the jurors 
 who tried the case had by mistake answered to the name of another 
 juror on the panel when called, and so had served on the jury 
 without objection, whereby it was suggested that there had been 
 a mis-trial, this was held by a majority of the judges not to be "a 
 question of law which arose on the trial," within section 1, and 
 therefore that the court for Crown Cases Reserved had not juris- 
 diction to set aside the verdict and judgment, or to award a venire 
 de novo. R. v. Mellor, Dears. & B. 468; 27 L. J. {M. C.) 121. 
 And it seems to have been thought that this court has in no case 
 authority to award a venire de novo, or to order a new trial. Id. It 
 did, however, award a venire de novo in R. v. Yeadon, L. & C. 81; 31 
 L. J. {M. C.) 70. The court cannot amend the indictment, R. v. Gar- 
 land, il Cox, 224, nor can it entertain questions of mere ^acto, as 
 whether a case was properly left to the jury on the unconfirmed 
 testimony of an accomplice. R. v. Stubbs, Dears. 555 ; 25 L. J. 
 (M. C.) 16. And it can only decide those points which are reserved 
 for its opinion, although other points in the prisoner's favour appear 
 on the face of the case, which are not reserved for the opinion of the 
 court. R. V. Tyree, L. R., 1 C C. R. 177, 178. Counsel, in arguing 
 the case, must confine themselves to the facts as they appear on the 
 case stated to the court. R. v. Smith, 1 Den. 512 : R. v. Blakemore, 
 
Court /or Grown Cases Reserved. 185 
 
 2 Den. 410 ; 21 L. J. (M. C.) 60. The counsel for the prisoner begins, 
 and has a reply. The court, however, will hear counsel for the pri- 
 soner, or for the prosecution, although no counsel appear on the 
 other side. B. v. Gamer, 1 Den. 329 ; 18 L. J. {M. C.) I: R. v. 
 Masters, ante, p. 182 : R. v. Martin, ante, p. 184. Where no counsel 
 appear, the lord chief justice or lord chief baron presiding reads the 
 case, and then judgment is pronounced as in other cases. 
 
 Where an amendment, without which the indictment was bad, had 
 been improperly made at the trial, after verdict, tliis court ordered 
 the record to be restored to its original state, and a verdict of not 
 guilty to be entered. R. v. LarJdn, Dears. 365 ; 23 L. J. {M. C.) 125. 
 
 Orders of court as to preparation and argument of case.'} — By rules 
 of court, 1st June, 1850, signed by all the judges, it is ordered, " that 
 when any case shall be transmitted by a court of oyer and terminer, 
 or gaol delivery, or court of quarter sessions, for the consideration of 
 this court, the original case signed by the judge or commissioner, 
 or chairman of sessions, reserving the question of law, and seventeen 
 copies of such case, one for each judge, and one for each party, shall 
 be delivered to the clerk of this court, at the Exchequer Chamber, 
 Westminster, at leastfour days before the day appointed for the sitting 
 of the said court. 
 
 " That every case transmitted for the consideration of this court shall 
 briefly state the question or questions of law reserved, and such facts 
 only as raise the question or questions submitted ; if the question turn 
 upon the indictment, or upon any count thereof, then the case must 
 set forth the indictment, or the particular count. 
 
 " That no case be heard upon any demurrer to the pleadings. 
 
 " That every case state whether judgment on the conviction was 
 passed, or postponed, or the execution of the judgment respited, and 
 whether the person convicted be in prison, or has been discharged 
 on recognizance of bail to appear and receive judgment, or to render 
 himself in execution. 
 
 " That when any case is intended to be argued by counsel, or by 
 the parties, notice thereof be given to the clerk of this court, at least 
 two days previously to the sitting of the said court. 
 
 " That with every case delivered to the judges of this court (except 
 such cases as shall lie reserved by such judges) the fee payable to the 
 clerks of the said judges shall not exceed the fee payable on 'De- 
 murrer and other paper books,' as contained in the table of fees 
 allowed and sanctioned by the judges pursuant to the statute 1st 
 Victoria, cap. 30." 
 
 Costs of argument.'} — Under 7 G. 4, c. 64, «. 22, the judge who 
 reserves a question of law for the consideration of this court has the 
 power to make an order for the costs of the argument on the part of 
 the prosecution. R. v. Cluderay, 3 C. <& K. 205 : R. v. Lewis, Dears. 
 & B. 326. 
 
 The court will not entertain a question of costs which is not within 
 their jurisdiction, although it is expressly agreed by the case reserved 
 that the court should have the same power with respect to such costs 
 as the judge could legally have exercised at the trial. R. v. Hornsea, 
 Dears. 291 ; 23 L. J. (M. C.) 59, 62, n. (1). And it seems that, as 
 this court has no taxing oiEcer, the costs of the proceedings in it must, 
 in strictness, be taxed in the court below. R. v. Dolan, Dears. 436 ; 
 24 L. J. (M. C.) 59, 61, n. . R. v. Lewis, supra. 
 
188 Writ of Error. 
 
 Sect. 5. 
 writ of eeroe. 
 
 What, and in what cases."] — A writ of eiTor is an original writ, 
 issuing from the common law side of the court of Chancery, or Petty- 
 Bag, and is directed to the judge or judges of an inferior court, 
 requiring him or them to send the record and proceedings of the in- 
 dictment, inquisition or information on which judgment has been 
 pronounced, and in which error is alleged, to the court authorized to 
 review the same, and is in the nature of a commission from the Queen 
 to the judges of the superior court, by which they are authorized to 
 examine the record upon which judgment was given in the inferior 
 court, and on such examination and a consideration of the errors 
 assigned, to affirm or reverse the judgment according to law. Finch 
 L. 484 ; F. N. B., Error; Termes de la Ley, Error; Bac. A br.. Error; 
 3 Bla. Com. 49. 
 
 A writ of error lies for every substantial defect appearing on the 
 face of the record, for which the indictment might have been quashed, 
 or which would have been fatal on demurrer, or in arrest of judgment. 
 Before the stat. 7 G. 4, c. 64, ss. 20, 21, writs of error were frequently 
 brought for trivial and purely formal errors ; but that statute provided 
 that several technical defects should be cured by verdict ; and now, 
 by 14 (fc 15 Vict. c. 100, s. 26, every objection for any formal defect 
 apparent on the face of an indictment shall be taken before the jury 
 ai-e sworn and not afterwards, and the court may order it forthwith 
 to be amended. But for every defect in substance in an indictment, 
 where a question of law has not been reserved for the judges of the 
 court for Crown Cases Reserved (see ante. Sect. 4), for irregularity in 
 awarding the jury process, for any material defect in the caption, for 
 irregularity in the verdict or judgment, or any manifest error on the 
 face of the record, a writ of error is the proper remedy. 4 Bla. Com. 
 391 ; 1 CMtty's Crim. L. 747. And if a question of law has been 
 raised by demurrer, a writ of error is the only remedy, the court for 
 Crown Cases Reserved in such a ease having no jurisdiction. B. v. 
 Faderman, 1 Den. 585 ; 19 L. J. (M. C.) 147, ante, p. 184. 
 
 Thus, if in an indictment for perjury on which judgment has been 
 given, it does not appear that the oath upon wltiich the perjury is 
 assigned has been taken in a judicial proceeding; R. v. Overton, A 
 Q. B. 90; 12 L. J. (M. C.) 61; or that the court had competent 
 authority to administer the oath ; R. v. Hallett, 2 Den. 2.37 ; 20 L. J. 
 (M. C.) 197 : i2. v. Chapman, 1 Den. 432 ; 18 L. J. (M. C.) 152 : Lmey 
 v. R., 2 £)e». 604; 17 Q. B. 496; 21 L. J. (M. C.) 10; or that the 
 defendant swore " falsely;" R. v. Oxle^, 3 C.& K. 317; a writ of error 
 may be brought. So, if an indictment be preferred for libellous 
 words and they are not indictable, as in R. v. Penny, 1 Ld. Raym. 153, 
 and judgment be given thereon. And an indictment charging the 
 defendant with obtaining money by false pretences, without showing 
 what the pretences were, is insufficient, and such a defect would be 
 ground for reversing the judgment. R. v. Mason, 2 T. R. 581 ; amd 
 per Lord Campbell, C. J., ffolloway v. R., 2 Den. 296. So, (before 
 the 24 (& 25 Vict. c. 96, s. 88, which renders it unnecessary in an 
 indictment for false pretences to allege any ownership of the money 
 or goods obtained,) if such an indictment did not show whose were 
 the money or goods obtained by means of the false pretences. Sill 
 V. R., Dears. 132 ; 1 E. d B. 553 ; 22 L. J. {M. C.) 41, If in an 
 
Writ of Error. 187 
 
 indictment for burglary it appeared that the prisoner brolce and 
 entered the dwelling-house with intent to commit a trespass or mis- 
 demeanor, and not a felony, error would lie. R. v. Powell, 2 Den. 
 403. So, where value is of the essence of the offence, as in embezzle- 
 ment to the value of 101. or upwards by bankrupts, 24 c6 25 Vict. c. 
 134, s. 221, the omission of a statement of the value would render the 
 indictment bad on error. In the same way, where local description is 
 necessary (see ante, p. 50), its omission would be fatal; see 14 d; 15 
 Vict. c. 100, s. 23 ; as in nuisance to highways, 4 Chitty^s Crim. 
 L. 423, keeping disorderly houses, arson, burglary, housebreaking, 
 stealing in a dwelling-house, being armed at night on land for 
 the purpose of killing game, etc. So, also, where time is of the 
 essence of the offence, as in burglary. An indictment charging a 
 conspiracy to cheat and defraud certain tradesmen of divers quanti- 
 ties of their goods and chattels, was held insufficient on error, for not 
 setting out the names or designating the class of persons intended to 
 be defrauded. King v. R., 7 Q. B. 798 ; 14 L. J. (M. C.) 172 ; and 
 see Lord Sale's Com. F. N. B., tit. Error. Where the defendant 
 challenges a juror peremptorily, and the crown demurs, and judg- 
 ment is wrongly given by the court in which the trial is proceeding 
 against the defendant's right to a peremptory challenge, a court of 
 error will reverse the whole proceedings. Cfray v. B., 11 Cla. & Fin. 
 427. But semhle, there must be a regalar judgment on an issue joined 
 in law or in fact, to found the writ of eiTor on, and the mere order by 
 the court that a juror challenged by the crown shall stand by, though 
 irregular, is not ground of error. Id.; Mansell v. R., S E. <& B. 5i; 
 Bears. & B. 375 ; 27 L. J. (M. C.) 4. So, also, where a challenge 
 to the array is improperly overruled, it is error. O'Connell v. R., 11 
 Cla. & Fin. 155. If the verdict of the jury were returned during the 
 absence of one of the jurors, it would be error. So, also, where it 
 does not appear upon the record that the jurors were honi et legales 
 homines. But where the record set out an award of veanire to the 
 sheriff, which required him to impanel and return a jury of good ajid 
 lawful men of the county, and then proceeded to state that the sheriff, 
 for the purpose aforesaid, impanelled and returned certain persons 
 named, and arrayed them in one panel ; it was held that by reason- 
 able intendment the record showed that the persons named in the 
 panel were good and lawful men of the county. Mansell v. R., 8 E. 
 &B.bi:; Dears. & B. 375 ; 27 L. J. {M. C.) 4. Error also may be 
 assigned on a special verdict, where judgment has been passed on 
 the defendant ; 2 Ld. Raym. 1614 : R. v. Chadvoich, 11 Q. B. 205 ; 17 
 L. J. {M. C.) 33 ; and on the omission of the allocutus, or demand of 
 the defendant what he has to say why judgment should not proceed 
 against him. So, also, if sentence of death be passed against a pri- 
 soner not present in court; 1 Ld. Raym. 48, 267. If a general judg- 
 ment be given on the whole of an indictment containing several counts, 
 any one of which is bad in substance, the judgment will be reversed 
 on error. O'Connell y. R., 11 Cla. & Fin. 155: Gregory y. jB., 15 
 Q. B. 957 ; see, howewr, Hollmvay v. R., 2 Den. 287 ; 17 Q. B. 317. 
 If an indictment be preferred at the quarter sessions for an offence 
 not cognizable by justices of the peace, and the defendant be con- 
 victed and judgment passed upon him, the proceedings will be re- 
 versed on error : such as an indictment on a penal statute, where 
 jurisdiction is not given to sessions ; 4 Mod. 379 ; 3 Salh. 188 ; or an 
 indictment for perjury, which would be wholly void ; R. v. Haynes, 
 Ry. & M. 298; or for forgery; R. v. Rigiy, 8 C. <& P. 770; or an 
 
188 Writ of Error. 
 
 indictment for conspiracy, not within the exceptions of 5 tfe 6 Vict, 
 c. 38, s. 1. A wi-it of error also lies to. reverse an outlawry ; R. v. 
 Wilkes, 4 Burr. 2537; 2 Hawk. e. 60, s. 11 ; Band's Or. Prac. 487, n. 
 Duplicity in pleading is not ground of error. Nash v. H., i B.dsS. 
 935 ; 33 L. J. (M. C.) 94. If the judge in the exercise of his dis- 
 cretion discharge the jury on the ground of necessity, such exercise 
 of his discretion cannot be reviewed in a court of error. Winsor v. 
 M., L. B., 1 Q. B. 289; Jd. 390 (Exch. Charnb.); 35 L. J. (M. C.) 
 121 ; 7a!. 161 {Exch. Chamb.). No wi-it of error lies upon a summary 
 conviction ; per Holt, C. J., Ld. Raym. 469 ; it only lies on judgments 
 in courts of record acting according to the course of the common law. 
 Com. Dig., Pleader, 3 B. 7. 
 
 Fiat of attorney-general.'] — Until the reign of Queen Anne, a writ 
 of error was grantable in any criminal case only ex gratia re^is,upon 
 the law officers of the crown certifying that there was cause of error; 
 see 1 Vem. 170 ; 4 Burr. 2550. But in the case of R. v. Paly, 2 
 Salk. 503, in the year 1704, ten of the judges declared their 
 opinion that, in all cases under treason and felony, a writ of error 
 was not merely of grace, but ought ex debito justitice to be granted? 
 not meaning thereby that it was a writ of course, but that where 
 there was probable error it ought not to be denied. In cases of trea- 
 son or felony it still remains, in strict law, entirely in the breast of 
 the crown whether the writ shall be granted or refused. See 4 Bla. 
 Com. 392; 2 Sawk. c. 50, s. 11 ; 4 Bimr. 2551. In misdemeanors, 
 also, the writ does not issue as a matter of course, but under the like 
 fiat, which however in these cases the attorney-general ought to grant 
 whenever,probable grounds are laid ; and it has been said that the 
 court of Queen's Bench will order him to do so if he refuse ; iBwrr. 
 2551 ; but it has recently been held that this is not so, and that the 
 court will not interfere after he has exercised his discretion, and re- 
 fused to grant a fiat. Ex parte Newton, i E. d; B. 869. Nor has the 
 lord chancellor any jurisdiction to review the decision of the attor- 
 ney-general refusing to grant a fiat. Re Pigott, 11 Cox, Sll. Where, 
 therefore, it is intended to sue out a writ of error in a case of felony 
 or misdemeanor, the first step is to apply to the attorney-general for 
 his fiat, and for this purpose a certificate signed by the prisoner's 
 counsel, accompanied by an affidavit if error in fact be alleged, 
 should be submitted to the attorney-general. 
 
 A prcecipe, together with the attorney-general's fiat, must be taken 
 to the Petty Bag office before the writ of error can be issued. The 
 following forms are found on the files of that office: — 
 
 Middlesex. — Writ of error on an indictment in the Central Oriminal 
 Court, removed hf certiorari into the court of Queen^s Bench, betteem 
 the Queen on the prosecution of R. B. K. against H. A. and D. A., for 
 certain misdemeanors whereof the said defendants are indicted. Return- 
 able in the Exchequer Chamber the eleventh day of January next. 
 Let this writ issue. For d^endanis, 
 
 W. Atherton. E. & K. 
 
 Temple, November 2&th, 1861. (Address). 
 
 28th October, 1861. 
 
 In the Queen\ Bench. 
 
 The Queen against W. D. 
 Middlesex. — Writ of error on behalf of W. D., now a prisoner in 
 
Writ of Error. 189 
 
 the House of Correction in CoMhath Fields, on an indictment and con- 
 viction andjvdgmemtfw a misdemeanor, at Westminster sessions, retwm- 
 able on the twelfth day of Jaimary, 186L Wheiresoeioer, etc. 
 
 G. B. 
 Let (his writ issue. Attorney for W. D. 
 
 W. Atherton. Devereux Court, Temple. 
 
 Temple, 12th November^ 1-861. November, 1861. 
 
 Queen's Bench. — Writ ■of error for A. L. at the mit of the Queen, on 
 indictment for perywy, returnable -era 15th April in Exchequer 
 Chamber. 
 
 L.&L. 
 [Address. Date.] 
 C Let a vyrit of error issue on the part of the defendant 
 Reg. V. A. L. •? from the court of Queen^s Bench to Exchequer Cham- 
 (. ber to assign errors in law. 
 
 W. Atherton. 
 lUh December, 1861. 
 
 Waewiceshiee.— £e< a writ of error issue, directed to the keepers 
 of the peace and justices of our sovereign lady the Queen, assigned to 
 hear and determine dimers felonies, trespasses and misdemeanors com- 
 mitted within the comdy of Warwick, upon a certain indictment against 
 H. H., for a certain felony whereof he was indicted at the sessions of 
 the peace in and for the said county, held by adjournment at Coventry 
 
 in the said county, on , the day of October, one thousand eight 
 
 hundred and sixty-one, and by a jury of the said county convicted, as it 
 is said, and whereupon judgment of transportation has been pronownced 
 against him the said H. H., returnable in the Queen's Bench. Dated 
 this eighteenth day of November, 1861. 
 
 Let thisimit issue. 
 W. Atherton. 
 Temple, 18th November, 186L 
 
 The prcedpe amd fiat are sometimes on parchment, but more fre- 
 quently on paiper. 
 
 Where a writ of error was sued out upon a judgment of the court 
 of Queen's Bench, coUusively, in order to enable the parties to effect 
 a compromise of the prosecution, that court, under the power con- 
 tained in the 12 <& 13 Vict. c. 109, s. 39, set aside the writ: B. v. 
 Allq/ne, i E. S B. 186 ; Dears. 505. And the court of Exchequer 
 Chamber thereupon set aside a judgment of that court, which had 
 been signed by the plaintiffs in error, by order of a judge, for want 
 of a joinder in error. Alleyne v. B., 5 E. <& B. 399 ; Dears. 512. 
 
 Issuing writ, and form of writ of error."] — On the filing of a praecipe 
 and the production of the attorney-general's fiat, the writ of error, 
 which must be prepared by the attorney, 12 & 13 Vict. c. 109, s. 38, 
 on parchment, stamped with a stamp for 20s., is issued by the officers 
 of the Petty Bag office, whose fee is 10s. The following is the form 
 of a writ of error to the justices of quarter sessions : — 
 
 Victoria, by the grace of God of the United Kingdom of Great 
 Britain and Ireland Queen, Defender of the Faith, To our keepers of 
 the peace and justices assigned to hear and determine divers felonies, 
 trespasses, and other misdemeanors committed in the county of Warwick, 
 
190 Writ of Error. 
 
 and to every of them, greeting : Because in the record and proceedings, 
 and also in the giving of judgment in a certain presentment made 
 against H. H., at a sessions of the peace in and for the said county, 
 
 held by adjournment, at Coventry, on Wednesday, to wit, the day 
 
 of January, in the year of our reign, before W. D., esquire, and 
 
 the Rev. T C. A , clerh, and others their associates, then our justices 
 assigned to keep the peace in the said county, and also to hear and 
 determine divers felonies, trespasses, and other misdemeanors in the said 
 county committed, for certain felonies in aiding and assisting one R. T., 
 a prisoner in the gaol of Coventry aforesaid, in attempting and en- 
 deavouring to attempt to escape from the said gaol, against the form of 
 the statutes respectively in such case made and provided, whereof the 
 said H. H. was accused before the said W. D., esquire, and the Rev. 
 T. C. A., clerk, our justices aforesaid, and was thereupon convicted 
 thereof by a certain jury of the county, taken between us and the said 
 H. H., as it is said, manifest error hath intervened, to the great damage 
 of the said H. H., as by his complaint we are informed. We being 
 willing that the error (if error there be) should in due nianner be 
 corrected, and full and speedy justice done to the said H. H. in this 
 behalf, do command you, that if judgment be thereupon given, then yoa 
 send to us distinctly and openly, under your seals, or the seal of one of 
 you, the record and proceedings aforesaid, with all things concerning the 
 same, with this writ, so that we may have them before us on the fifteenth 
 day of April next, wheresoever we shall then be in England; that, the 
 record and proceedings aforesaid being inspected, we may cause to he 
 fwther done thereupon, for correcting that error, what of right and 
 according to the law and custom of our realm of England ought to he 
 done. Witness ourself at Westminster the twenty-ninth day of October, 
 in the twenty-fifth year of our reign. 
 
 Romilly. 
 By Sir William Atherton, Knight, Abbott. 
 
 Attorney-general of our lady the Queen. 
 
 If the alleged eiTor be on an indictment at the quarter sessions 
 for any city or borough, the writ of error must be directed thus:— 
 
 '' Victoria, etc. To T. P. E., esquire, recorder of cnir borough of 
 Leeds, in the county of York, our justice assigned to hear and determine, 
 etc. [as in preceding form] in our said borough, greeting." If on an 
 indictment at assizes it is directed, " To our justices of oyer and 
 
 terminer for our county of , assigned to deliver the gaol of the said 
 
 county of the prisoners therein being, and also to hea/r and determine all 
 felonies, trespasses, and other evil doings committed within the same 
 county, greeting." And where the error has arisen in the proceedings 
 on an indictment tried at the Central Criminal Court, it may be thus 
 directed: — " To our justices assigned to hear and determine divers 
 treasons, murders, felonies and misdemeanors committed within the 
 jurisdiction of our Central Criminal Court, and to every of them, 
 greeting," etc. 
 
 When error is brought in the Exchequer Chamber, pursuant to 
 1 W. 4, c. 70, s. 8, on an indictment tried at the assizes for any 
 county, where the judgment of the court below has been affirmed by 
 the Queen's Bench, the writ of error is directed to the lord chief 
 justice of that court. It recites that the prisoner was convicted by a 
 jury before certain justices of oyer and terminer, on an indictment for 
 a certain offence specified, and that by reason of alleged error the 
 
Writ of Error. 191 
 
 proceedings were removed by writ of error into the Queen's Bench, 
 where the judgment was affirmed ; and then proceeds as above. 
 When the error is to be assigned on an indictment tried in the 
 Queen's Bench, the writ will be nearly in the same form. In some 
 forms the section of the act for the more effectual administration of 
 justice, 1 W. 4, c. 70, relating to error from the Queen's Bench, is 
 recited; but that seems wholly unnecessary. [For forms of writs in 
 other and more special cases, see Lil. Ent. 239 ; Trem. P. C. 305 ; 
 Hamd's Prac. 470; 4 Chitty's CHm. L. 417, 420.] 
 
 The following is the form of the writ of error on outlawry in the 
 Queen's Bench : — 
 
 Victoria, hy the grace of God of the United Kingdom of Great 
 Britain amd Ireland Queen, Defender of the Faith, etc. . To our jus- 
 tices appointed to hold pleas before us, greeting: Forasmuch as in the 
 record and process, as also in the publication of an outlawry published 
 against J. W., on a certain information against the said 3. W. for 
 printing amd publishing a certain libel or composition entitled, etc., 
 whereof the said J. W. is impeached, and thereupon by a jury of the 
 county is convicted, as it is said [or, if the defendant has been con- 
 victed on an indictment, state the substance thereof], manifest error 
 hath intervened, to the great damage of the said J. W., as hy his com- 
 plaint we are informed. We, being willing that the said error (if any 
 there be) be duly amended, and full and speedy justice done to the said 
 J. W. in this behalf, do command you that, if the said outlawry he 
 returned before us, as hath been said, them inspecting the said record 
 and process, you may cause further to be done herein for annulling the 
 said outlawry for error, as of right and according to the law and 
 custom of England shall be meet to be done. Witness ourself at West- 
 minster this twentieth day of N member, in the twenty-fifth year of our 
 reign. 
 
 Upon delivering the writ to the clerk of the peace or other officer 
 of the court to which it is directed, who has the custody of the in- 
 dictment, he will make up the record, and make out the return to 
 the court. The following is the form of a return when a writ is 
 addressed to the justices in quarter sessions ; it is signed and sealed 
 by the chairman : — 
 
 County of I I, K. J. A., esquire, one of the keepers of the peace 
 
 to wit. S and justices of our lady the Queen, assigned to keep 
 
 the peace within the said coumty of , and also to hear and determine 
 
 divers felonies, trespasses, and other misdemeanors in the same county 
 committed, by virtue of this writ to me delivered, do send to our said 
 lady the Queen, distirictly and openly under my seal, the record and 
 proceedings in a certain presentment made against H. H., of which 
 mention is made in the same writ, together with all things concerning 
 the same. In witness whereof I, the said E. J. A., have to these 
 presents set my hand and seal the seventh day of December, in the 
 twenty-fifth year of the reign of our sovereign lady Victoria, hy the grace 
 of God of the United Kingdom of Great Britain and Ireland Queen, 
 Defender of the Faith, and in the year of our Lord 1861. 
 
 (Signed) R. J. A. (l. s.) 
 
 Indorsed thus. — The execution of this writ appears in certain 
 schedules hereunto annexed. (Signed) K. J. A. 
 
192 Writ of Error. 
 
 If the whole record be not certified, or not truly certified, by the 
 inferior court to which the writ of error is directed, the plaintiff in 
 error, as well in criminal as in civil cases, may allege a diminution 
 of the record, showing that part of the record has been omitted and 
 remains in the inferior court not certified, and a certiorari will be 
 awarded. Termes de la Ley, 249 ; Co. Ent. 232, 242 ; 4 Bla. Com. 
 390. Thus, where it was objected, on argument of a writ of error 
 fi-om the Queen's Bench to the Exchequer Chamber, that mention of 
 a motion in arrest of judgment in the court below did not appear on 
 the face of the record ; it was held that it was then too late to take 
 the objection, and Parke, B., remarked that, in order to raise the 
 question, the plaintiff in error should haye alleged a diminution of 
 the record. Dunn v. R., 12 Q. B. 1031 ; 18 L. J. {M. C.) 41,43. 
 
 Assignment of errors.'] — The writ having been duly returned, the 
 next proceeding is the assignment of errors. On a charge of felony, 
 the party suing out the writ must appear in person to assign errors ; 
 8 Bep. Crim. L. 173 ; and it is said in Comer'' s Or. Prac. 102, that 
 if the party be in custody in the prison of the county or city in 
 which the trial has taken place, he must be brought up by luuieat 
 corpus for the purpose of this formality, which writ must be moved 
 for on affidavit. This course was followed in Holloway v. E., 2 
 Den. 287 ; 17 Q. B. 317 : andinMamell v. R., SE.<&B.54:; Dews. 
 d B. 375 ; 27 L. J. (M. C.) 4 ; but tlie opinion of the court as to its 
 necessity was not expressly taken. So, where a person convicted of 
 felony brings error from the Queen's Bench into the Exchequer 
 Chamber, the general rules for governing the proceedings in error in 
 civil cases, under the Reg. Gen., Eil. T., 2 TF. 4, and under the 
 Common Law Procedure Act, do not apply; but the prisoner must 
 be brought up to the court of Exchequer Chamber, and must there 
 pray oyer of the record, and assign errors by delivering them in 
 writing to the officer of that court, and must be present during the 
 argument and the delivery of the judgment ; and the attorney- general 
 may, immediately on the assignment of errors being so delivered, 
 join in error ore tenus. Mansell v. R., supra. The expenses of the 
 habeas corpus, and the gaoler's travelling charges, are borne by the 
 plaintiff in error. 
 
 The following is a form of assignment of general errors in the 
 Queen's Bench : — 
 
 A. B. ~v Michaelmas Term, in the twenty-fifth year of 
 
 Plaintiff in Error I the reign of Queen '{Victoria. And now, to wit, 
 V. >on, etc., in this same term, before our said lady 
 
 The Queen. j the Queen at Westminster, cometh the said A. B., 
 Defendomt in Error.) in his proper person, who is committed to, etc., 
 am.d he immediately saith that in the record and process aforesaid, and 
 also in the giving of the judgment aforesaid against him the said A.B,, 
 there is manifest error in this, to wit, that the indictment aforesaid, and 
 the matter therein contained, are not sufficient in law to warrant the 
 judgment against him now given, or to convict him of the trespasses, 
 contempts, and forgeries (or as the case may be) aforesaid, therefore in 
 that there is manifest error; there is also error in this, that by the said 
 record it appears that judgment upon the indictment aforesaid was 
 given against him the said A. B. in form aforesaid, whereas jzidgment 
 by the law of this realm of England ought to have hem given for thi 
 
• Writ of EiTor. 193 
 
 said A. B., that he he therefore acquitted, and go thereupon without day, 
 therefore in that there is manifest error; and the said A. B. prays that 
 the judgment aforesaid, for the errors being in the record and process 
 aforesaid, may be reversed and annulled and absolutely be held for 
 nothing, and that he may be restored to the common law of this realm, 
 and to all things which he hath lost on the present occasion. 
 See 1 Ld. Raym. 36; 1 Bos. & P. 356; 4 Chit. Crim. L. 421. 
 
 Joinder in error.']— A. copy of the assignment of errors being 
 served on the prosecutor, and a rule being served on the attorney- 
 general, or the Queen's attorney and coroner, according to the course 
 and practice of the court, to join in error, in default of joinder the 
 plaintiff will be entitled to judgment. 
 
 When error is brought on a judgment for felony, and the crown 
 does not join in error, the defendant will be discharged. In R. v. 
 Howes, 1 A. (& E. 6Q.n.; 3 N. <& M. 462, the crown not having 
 joined in error, the court granted a peremptory rule (a previous rule 
 having been made to the like effect), that judgment should be entered 
 for the defendants, unless the coroner and attorney of the King's 
 Bench should join in error within four days after notice of that rule, 
 to be given to the prosecutor and the solicitor for the treasury ; and 
 the coroner not having joined in error, judgment was given for the 
 defendants, and they were discharged. 
 
 The following is the form of joinder in error: — 
 
 On the twelfth day of December, in the yea/r of our Lord one thousand 
 eight hundred and sixty -one, as of Michaelmas Term, in the twenty - 
 fifth year of the reign of Queen Victoria. 
 
 And C. F. R., esquire, coroner and attorney of our said lady the 
 Queen before the Queen herself who for our said lady the Queen in this 
 behalf prosecuteth, being present here in court, and having heard the 
 matters aforesaid above assigned for error in manner and form afore- 
 said, for our said lady the Queen saith, that neither in the record and 
 proceedings aforesaid is there any error; therefore the said coroner and 
 attorney of our said lady the Queen prayeth that the court of our said 
 lady the Queen now here may proceed to examine as well the record and 
 proceedings aforesaid, and the judgment thereon given as aforesaid, as 
 the matters above assigned and alleged for error, and that the judgment 
 may in all things be affirmed. 
 
 If the joinder in error be by the attorney-general, the form is : — 
 
 And the said Sir W. A., knight, attorney-general of our sovereign 
 lady the Queen, present here in court in his proper person, having heard 
 the matters aforesaid above assigned for error, for our said lady the 
 Queen saith, that neither in the record and proceedings, etc. Lil. JEnt. 
 243; 4 Chit. Crim. L. 427. 
 
 Concilium.'] — As soon as the joinder in error is filed, either party 
 may obtain a rule for a concilium from the crown oflSce, which must 
 be served on the opposite party. The form of a concilium is as 
 follows : — 
 
 Monday, the third of November, in the twenty-fifth year of the reign of 
 Queen Victoria. 
 In the Queen's Bench (England, Warwichshire) — H. H. plaintiff in 
 
 W. K 
 
194 Writ of Error. 
 
 error, against the Queen, defendant in error. At the instance of the 
 defendant in error, it is ordered that there be a concilium in this pro- 
 secution, and that this case be put down in the crown paper for argv/ment 
 on Wedmesda/y, the \Sth day of Novembeir instant. 
 
 On the motion of Mr. . 
 
 By the Court. 
 
 The rule for a concilivm, must specify the day on which the case 
 will be put into the paper for argument, and must be drawn up and 
 served six days at least before such day, within forty miles of London, 
 and eight days in all other cases. 
 
 Paper hooks.] — By Reg. Gen., Or. Off. 22, it is ordei'ed, that, in 
 all cases entered for argument in the crown paper, the prosecutor or 
 his attorney shall deliver a paper book of the proceedings to each of 
 the two senior judges of the court; and the defendant or his attorney 
 shall in like manner make and deliver a paper book to the third and 
 fourth judge of the said court respectively, two days before the day 
 on which the case will be put in the paper for argument ; and such 
 several paper books shall in all cases (except where a special case is 
 reserved for the opinion of the court) contain in the margin thereof, 
 or appended thereto, and to be delivered therewith, the points in- 
 tended to be argued, but shall not contain any other observation or 
 matter than such points for argument, together with copies of the 
 proceedings, and a copy of the rule nisi to quash, or for a concilium; 
 and judgment shall be given by the court against the party neglecting 
 to deliver paper books to the judges, or delivering the same without 
 points for argument, if the court shall so please. 
 
 The following may be the form of the paper book: — 
 
 " In the Queen's Bench.— Pleas before our lady the Queen at West- . 
 minster, of Hilary Term, in the twenty-fifth year of the reign of 
 our sovereign lady Victoria, by the grace of God of the United 
 Kingdom of Great Britain and Ireland Queen, Defender of the 
 Faith, etc. 
 
 " Among the pleas of the Queen's Roll, Lancashire. — Our lady the 
 Queen hath sent to her keepers of the peace in and for her county of 
 Lancaster, and to her justices appointed to hear and determine divers 
 felonies, trespasses, and other misdemeanors committed in the same 
 coumty, her writ closed in these words." Here set out the writ of 
 error, a copy of the record, a copy of the assignment of errors, a 
 copy of the joinder in error, and append a copy of the rule for a cm- 
 cilium. See 4 Chit. Crim. L. 428. 
 
 The points for argument, to be stated in the margin of the assign- 
 ment of errors in the paper book, of course vary in each particular 
 case. The following precedent may, however, be a guide in drawing 
 them : — 
 
 The plaintiff in error will insist that the judgment is erroneous on 
 account of each and all of the errors specially assigned, and, in par- 
 ticular, that the indictment shows no attempt to escape on the part of 
 T., does not connect the plaintiff with his proceedings, and is bad for 
 duplicity, the several counts mentioned referring to but one offeiwe. 
 Also, that, there being at least one bad count, there is a general judg- 
 
Wi-it of Error. 195 
 
 mmi on all. And also, that the jurisdiction, as created by the 5th and 
 6th Victoria, c. 110, is not shmim. F. S. F. {Holloway v. it!., 2 Den. 
 287; 17 0.5.317.) 
 
 Bail in error.'] — During the pendency of the writ of error, the 
 defendant, in cases of treason or felony, remains m custody, being in 
 execution on the judgment. But in cases of misdemeanor, the exe- 
 cution may be stayed until the writ of error is finally determined, 
 and the defendant is entitled in the meantime to be discharged from 
 imprisonment, and to receive back the amount of any fine levied upon 
 the judgment, on his entering into a recognizance, with two sufficient 
 sureties, to be approved of by a judge of the court of Queen's Bench, 
 or a commissioner for taking special bail in actions depending in the 
 superior courts, to prosecute the writ of error with effect, and per- 
 sonally to appear in the court wherein such writ may be returnable, 
 on the day whereon judgment shall be given upon the writ of error ; 
 and also, if so ordered by the court or a judge thereof, four days' 
 notice being given either to the defendant or his attorney, or to the 
 bail personally, or by leaving the same at his or their last known 
 place of abode, on the days and times appointed for any proceeding 
 upon the said writ, and so from day to day, and not to depart the 
 court without leave ; and, in case the judgment be affirmed, forthwith 
 to render the defendant to prison, according to the judgment. 8 c6 9 
 Vict.c. 68, s. 1; 16 (£ 17 Vict. c. 32, s. 1. If the defendant make 
 default in prosecuting the writ of error with effect, or in personally 
 appearing in the court of error upon any proceeding to be had upon 
 the writ, such court may order the recognizance to be estreated into 
 the court of Exchequer in a summary way, and without the issuing 
 of any writ of sci. fa., and may also order the writ of error to be 
 quashed without argument; and in every such case the defendant 
 shall forthwith be liable to execution upon the judgment ; 16 (fc 17 
 Vict. c. 32, s. 2. Where the defendant has been discharged from 
 prison without a proper recognizance being filed and certified ac- 
 cording to the directions of the statute, the court in which the 
 conviction was had will order fresh process to issue for his apprehen- 
 sion and re-commitment. Dugdale v. R., Deems. 254 ; ^ E. & B. 
 129. 
 
 Judgment of affirmance^ — If the judgment of the court below be 
 affirmed, the following is the form of the judgment of the court of 
 Queen's Bench : — 
 
 Whereupon as well the record amd proceedings aforesaid, and the 
 judgment given in manner and form aforesaid, as the matters aforesaid 
 by the said A. B. dbcmefor error assigned, being seen, and by the court 
 of our said lady the Queen before the Queen herself now here fully 
 understood, and mature deliberation being thereupon had, it appears to 
 the court of our said lady the Queen now here, that there is no error 
 cither in the record or proceedings aforesaid, or in the (jiving of the 
 judgment aforesaid. Therefore it is considered and adjudged by tlie 
 said court here that the judgment aforesaid be in all things affirmed 
 and stand in full force and effect. 
 
 In every case in which a defendant shall personally appear in court 
 upon any proceeding had upon the writ of error, and judgment 
 thereon shall be affirmed, or the writ of error shall be quashed, the 
 
 k2 
 
196 Writ of Error. 
 
 court of error may forthwith commit the defendant to the keeper of 
 the Queen's prison, and order him to deliver the defendant to the 
 keeper of the gaol or prison in which he may have been adjudged 
 to be imprisoned ; and the keeper of the Queen's prison shall there- 
 upon deliver the defendant to the keeper of such gaol or prison, who 
 shdl cause the defendant to be kept in safe custody therein, in pur- 
 suance of and in execution of the judgment. 16 S 17 Vict. c. 32, s. 4. 
 And whenever it shall be made appear to any one of the judges of the 
 superior courts of record at Westminster, either by affidavit or certi- 
 ficate of the proper officer of the court of error, that the recognizance 
 of a defendant given under the provisions of this act has been ordered 
 to be estreated, or that judgment upon the writ of error has been 
 affirmed, or that the writ has been quashed, and that default has been 
 made by the space of four days in rendering the defendant to prison 
 in execution of the judgment, the judge may issue his warrant under 
 his hand and seal, and thereby cause such defendant to be appre- 
 hended, and conveyed to the gaol or prison in which he may have 
 been adjudged to be imprisoned, pursuant to and in execution of the 
 judgment given against such defendant. Id. s. 5. In every case in 
 which a defendant shall be committed by any court of error in execu- 
 tion of the judgment given against him, and in every case in which a 
 defendant shall, by virtue of any warrant or in other manner, be 
 rendered to prison in execution of such judgment, the imprisonment 
 of such defendant (if imprisonment shall not have commenced under 
 such execution) shall be reckoned to begin from the day when he 
 shall be in actual custody in the gaol or prison in which he may have 
 been adjudged to be imprisoned under such judgment; and if the 
 defendant shall have been discharged from imprisonment on giving 
 bail in error, he shall be imprisoned for such further period in the 
 same prison as, with the time during which he may already have 
 been imprisoned under such execution, shall be equsd to the period 
 for which he was adjudged to be imprisoned as aforesaid. Id. s. 6. 
 And whenever default shall have been made in rendering a defendant 
 to prison in execution of a judgment for misdemeanor, and a warrant 
 shall have been issued against him to enforce such render to prison, 
 according to the provisions of this act, the defendant shall be liable 
 to pay the costs and charges of such render ; and if the prosecutor 
 shall, before the expiration of the defendant's imprisonment, have 
 caused the amount of such costs and charges to be ascertained by one 
 of the masters or the assistant master on the crown side of the court 
 of Queen's Bench, and shall have left with the defendant and with 
 the keeper of the prison or his deputy, a certificate under the hand of 
 such master or assistant master, of the amount of such costs as ascer- 
 tained, then the defendant shall not be discharged out of custody until 
 such costs and charges have been paid, or until an order has been 
 made by the court for the relief of insolvent debtors or of bankruptcy 
 for his discharge. Id. s. 7. 
 
 Judgment of reversal,'] — If the judgment of the court below be 
 reversed, the following is the form of the judgment of the Queen's 
 Bench : — 
 
 " Whereupon all and singular the premises being seen, and by the 
 court of our said lady the Queen before the Queen herself here mder- 
 stood, and the record and proceedings aforesaid, and the errors aforesaid 
 by the said C. D. above assigned, and others in the record amd proceed- 
 
Writ of Error. 197 
 
 ings aforesaid found, being diligently examined, and mature delibera- 
 tion being thereupon had, it appears to the said cowrt of our said lady 
 the Queen now here, that in the record and proceedings aforesaid there 
 is manifest error; therefore it is considered a/nd adjudged by the said 
 court here, that the judgment aforesaid, for the errors aforesaid, and 
 others in the record and proceedings aforesaid found and being, be 
 reversed, annulled, and held as entirely void, and that the said C. D. be 
 restored to all things which by reason of the judgment aforesaid he hath 
 lost; and that the said C. D. may go thereof without day," etc. (See 
 Lil. Eat. 242; 4 Chit. Grim. L. 430.) 
 
 Formerly, if the court below had pronounced an erroneous judg- 
 ment, the court of error had no power to pronounce the proper judg- 
 ment, or remit the record to the court below, but were bound to 
 reverse the judgment and discharge the defendant. R. v. Bourne, 7 
 A.& E.68; 6 L. J. (if. C.) 129: E. v. Dmry, 3 C. <& K. 192; 18 
 L.J. (M. C.) 189. But now it is enacted, by 11 & 12 Vict. c. 78, s. 5, 
 that whenever any writ of error shall be brought upon any judgment 
 on any indictment, information, presentment, or inquisition in any 
 criminal case, and the court of error shall reverse the judgment, it 
 shall be competent for such court of error either to pronounce the 
 proper judgment, or to remit the record to the court below, in order 
 that such court may pronounce the proper judgment upon such indict- 
 ment, information, presentment, or inquisition. And see the obser- 
 vations of Lord Campbell, C. J., on this section of the statute, in 
 Hollaway v. R., 2 Dm. 287; 17 Q. B. 317. 
 
 Upon the reversal of a judgment against any person convicted of 
 any offence, the judgment, execution and all former proceedings 
 become thereby absolutely null and void. If living, he (or if dead, 
 his heir or personal representative, as the case may be) will be 
 entitled to be restored to all things which he may have lost by such 
 erroneous judgment and proceedings, and shall stand in every respect 
 as if he had never been charged with the offence in respect of which 
 judgment was pronounced against him. But a judgment reversed is 
 no bar to a second indictment. R. v. Drury, 3 C.& K. 193; 18 L. J. 
 CM. C.) 189. 
 
( 198 ) 
 
 PART II. 
 
 EVIDENCE GENERALLY. 
 
 CHAPTER I. 
 
 WflAT ALLEGATIONS MUST BE PROVED. 
 
 Where the defendant pleads the general issue, not guilty, the prose- 
 cutor is obliged to prove at the trial every fact and circumstance 
 stated in the indictment which are material and necessary to consti- 
 tute the offence. On the other hand, where the replication or other 
 pleading on the part of the prosecution consists of a general traverse 
 of the defendant's pleading, the defendant must prove the facts thus 
 traversed and put in issue. The parts of a pleading required to be 
 thus proved may be considered under the following heads : — 
 
 Time.] — The day and year on which facts are stated in the indict- 
 ment or other pleading to have occurred are not in general material; 
 and the facts may be proved to have occurred upon any other day 
 previous to the preferring of the indictment. {See ante., p. 50; mid 
 14 & 16 Vict. c. 100, 8. 24, ante, p. 43.) R. v. Charnoch, Holt, 301 ; 
 1 Salk. 288 ; see also 9 St. Tr. 587^605, 542-652 ; Fost. 7, 8 ; 9 East, 
 157 ; 1 Phil. Ev. 203 : R. v. Levy, 2 Stark. R. 458. To this rule, 
 however, there are these exceptions : namely — First, that in all cases 
 where bills of exchange, promissory notes, or other written instru- 
 ments, not under seal, are pleaded, the date, if stated, must corre- 
 spond with the date of the instrument when produced in evidence at 
 the trial. Coxon v. Lyon, 2 Camp. 307, n. See Freeman v. Jacob, 
 4 Camp. 209. Secondly, as deeds may be pleaded either according to 
 the date which they bear, or to the day on which they were delivered, 
 if a deed produced in evidence bear date on a day different from that 
 stated in the pleading, the party producing it must prove that it was 
 in fact delivered on the day alleged in the pleading. Thirdly, if any 
 time stated in the. pleading is to be proved by matter of record, it 
 must be correctly stated. See Green v. Bennett, 1 T. R. 656 : Pope 
 V. Foster, 4 T. R. 590 : Woodford v. Ashley, 2 Campb. 193 ; 11 East, 
 508 : RastaM v. Stratton, 1 H. Bl. 49 ; 2 Saund. 291 6. In these 
 several respects any variance between the time so stated, and that 
 appearing from the instrument or record when produced, will be 
 fatal, unless, in the discretion of the judge, the variance be amended 
 at the trial (9 G. 4, c. 15 ; XI & 12 Vict. c. 46, s. 4 ; 14 (fe 15 Vict. 
 t. 100, s. 1 ; see post, p. 206). Fourthly, when the precise date of 
 any fact is necessary to ascertain and determine with precision the 
 offence charged, or the matter alleged in excuse or justification, any 
 variance between the pleading and evidence in that respect will be 
 fatal unless amended. And lastly, where time is of the essence of 
 the offence, as in burglary or the like, the offence must be proved to 
 have been committed in the night-time : although the day on which 
 
Evidence. 199 
 
 the offence is charged to have been committed is immaterial, and it 
 may be proved to have been committed on any other day previous to 
 the preferring of the indictment. In murder, also, the death must 
 be proved to have taken place within a year and a day from the time 
 at which the stroke is proved to have been given. 1 Hawk. P. C. c. 
 31, «. 9 ; 4 Bla. Com. 197 ; 1 East, P. C. c. 5, s. U2, pp. 343, 344. 
 
 Place.'] — It is not in general necessary to prove that the facts stated 
 in the indictment or subsequent pleading occurred in the parish or 
 place therein alleged (if any be alleged, which now is in general un- 
 necessary) ; it is sufficient to prove that they occurred within the 
 county or other extent of the court's jurisdiction. 2 Hawk. c. 25, 
 s. 84 {ante, p. 50). But they must be proved to have been committed 
 within the county, or other extent of the court's jurisdiction, other- 
 wise the defendant must be acquitted. (See ante, p. 50.) And where 
 a forged bill of exchange was found upon J. S., who resided in Wilt- 
 shire, and had resided there about a year, under a false name, but 
 which bill bore date more than two years previously to its being 
 found upon him, and at a time when he lived in Somei-setshire ; on an 
 indictment against him for a forgery of the bill in Wiltshire, this was 
 holden not to be sufficient evidence of the offence having been com- 
 mitted in that county. B. v. Crocker, 2 N. R. 9,1 ; B. & R. 97 ; see 
 R. & R. 99, n. But although the offence must be proved to have 
 been committed in the county where the prisoner is tried, after 
 such proof, the acts of the prisoner in any other county, tending to 
 establish the charge against him are properly admissible in evidence. 
 If there be no such place as that stated in the indictment, it is im- 
 material where the offence is not local. R. v. Woodward, 1 Mood. 
 C. C. 323. The stat. 9 H. 5, st. 1, c. 1, s. 3 (see 7 H. 6, c. 18, and 
 18 H. 6, c. 12), which declared the indictment to be void in such a 
 case, is now repealed ; and a further ground for the objection is 
 removed by the jury in criminal cases being now returned de eorpore 
 comitatus. 6 G. 4, c. 50, s. 23. An indictment alleged a highway 
 robbery to have been committed in the parish of St. Thomas Pens- 
 ford, but the witness called it the parish of PcTisford, upon which it 
 was objected that there was no proof that there was in the county 
 any such parish as that laid in the indictment : Littledale, J., before 
 whom the indictment was tried, said that the objection was not valid, 
 and that he had once reserved a case for the opinion of the judges 
 upon the very point, and a great majority of the judges held that it 
 was not incumbent upon the prosecutor to prove affirmatively the 
 existence within the county of the parish laid in the indictment, and 
 expressed a doubt how they should hold, even where it was proved 
 negatively for the prisoner that no such parish existed. R. v. Dow- 
 ling, Ry. & M. 433. 
 
 To the above rule, as to the parish and place being immaterial, 
 there are however these exceptions : namely. First, that if the statute 
 upon which the indictment is framed give the penalty to the poor of 
 the parish in which the offence was committed, the offence must be 
 proved to have been committed in the parish stated in the indictment. 
 Secondly, upon an indictment against a parish for not repairing a road, 
 the part of the road out of repair must be proved to be within the 
 parish ; and the same in all other cases in which the place where the 
 fact occurred is a necessary ingredient in the offence. Thirdly, if a 
 place mentioned in pleading be stated as part of the description of 
 a written instrument, or is to be proved by matter of record, any vari- 
 
200 Evidence, 
 
 ance between the place as stated, and that appearing from the written 
 instrument or record when produced, will be fatal, unless the variance 
 be amended at the trial (see post, p. 206). Pitt v. Green, 9 East, 
 188 : Pool V. Court, 4 Taunt. 700 : Goodtitle r. Walter, Id. 671 : 
 Morgan v. Edwards, 6 Taunt. 394 : Goodtitle v. Lammiman, 2 Camp. 
 274. And lastli/, where the place is stated as matter of local de- 
 scription, and not as venue merely, any variance between the descrip- 
 tion of it in the indictment and the evidence will be fatal, unless 
 amended, even though the injury be partly local, and partly tran- 
 sitory ; for, the whole being one entire fact, the local description be- 
 comes descriptive of the transitory injuiy. P. v. Cranage, 1 Salh. 
 385 ; 1 Stark. Ev. 467. Thus, for instance, on an indictment for 
 stealing in the dwelling-house, etc., for burglary, for forcible entry, 
 or the Bke, if there be a variance between the indictment and evidence 
 in the name of the parish or place where the house is situate, or in 
 any other description given of it, the defendant must be acquitted, 
 unless the judge, in his discretion, think fit to amend the indictment. 
 The rule is the same, in this respect, in criminal cases as in civil 
 actions ; and where, in an action for non-residence, the parish was 
 styled in the declaration St. Ethelhurg, and the real name appeai-ed 
 in evidence to be St. Ethelburga, it was holden a fatal vaiiance. 
 Wilsonv. Gilbert,2Bos. & P. 281. So, in an action for a nuisance in 
 erecting a weir, described in the declaration to be at H., and proved 
 to be at a lower part of the same water, called T., the variance was 
 held fatal. Shaw v. Wrigley, 2 East, 600, cit. With reference to the 
 description of the parish, there are several apparently conflicting 
 authorities, which can only be reconciled upon the principle that it is 
 suificient to describe the parish either by its strictly legal or by its 
 popular name, provided the description be such as cannot mislead. 
 Thus where, in ejectment, the premises were alleged to be in Fam- 
 ham, and proved to be in Famham Royal, it was holden not to be a fatal 
 variance, unless it were shown that there were two Famhams. Doe 
 v. Salter, 13 East, 9. Where the premises were laid to be in West- 
 bury, and it was proved that there were two parishes of that name in 
 the county, Westbury-upon-Trim and Westbury^upon-Sevem, the ob- 
 jection of variance was overruled, because in common parlance the 
 addition was not used, and the description could not mislead. Doe^. 
 Harris, h M. & Sel. 326. So, where premises were described as 
 situate in the parish of Lambeth, the real name of the parish being 
 St. Mary, Lambeth, though usually called Lambeth, the variance was 
 holden to be immaterial. Kirtland v. Pounset, 1 Taimt. 670 : B. v. 
 Glossop, i B. cd Aid. 616. In Taylor y. Willans, 11 Moore, 448; 
 8 Bingh. 499, the parish was described as the parish of St. James, in 
 the county of Middlesex, and it appeared from acts of parliament that 
 there were two parishes of St. James, the one St. James, Clerhenwell, 
 and the other that laid in the declaration, sometimes called St. James, 
 and sometimes St. James in the liberties of Westminster; upon which 
 ground the description was holden sutficient. And where, in eject- 
 ment, the premises were alleged to be in the parish of St. Luke, in 
 the county of Middlesex, and there appeared to be two parishes of 
 St. Luke, the one St. Luke, Chelsea, and the other, that in which the 
 premises were, sometimes called St. Luke, Old Street, but more com- 
 monly St. Luke, Middlesex : the description was holden sufficient, as 
 it could not mislead. Doe v. Carter, 1 T. &J. 492. A prisoner was 
 indicted at the Central Criminal Court for burglary in a house stated 
 in the indictment to be situate at the parish of Woolwich. The 
 
Evidence. 201 
 
 prosecutor stated that the con-ect name of the parish was St. Mary, 
 Woolmch; but it being called in the Central Criminal Court Act, 
 4 cfe 5 TF. 4, c. 36, s. 2, the parish of Woolmch, the indictment was 
 therefore held sufficient. B. v. St. John, 9 C. <& P. 40. But where, 
 in an action of trespass for breaking a house in the parish of Clerhen- 
 well, there appeared to be two parishes in CUrhemwell, St. James and 
 St. John, and the house was situate in the former, Gibbs, C. J., non- 
 suited the plaintiff. Taylor v. Hooman, 1 Moore, 161; 1 Holt, 623. 
 And where the premises were laid in the parish of St. George the 
 Martyr, Bhomsbury, and were proved to be in that of St. George, 
 Bhomsbury, there being two parishes of St. George in Bhomsbury, 
 the one called St. George the Martyr, and the other St. George, 
 Bloomsbwry, the plaintiff was nonsuited. Harris v. Cooke, 2 Moore, 
 587; 8 Taimt. 639. 
 
 Where a parish is situate in two counties, if the offence be of a 
 local nature, it must be alleged to have been committed in that part 
 of the parish which is within the county in which the defendant is tried. 
 
 B. V. Brookes, C. & Mar. 643. 
 
 The offence charged.'] — Every offence consists of certain acts done 
 or omitted, under certain circumstances, all of which must be stated in 
 the indictment {see amte, p. 51), and be proved as laid; any material 
 variance between the fact laid and the fact proved will be fatal, unless 
 amended. Thus, for instance, where, in an indictment for obtaining 
 money by false pretences, the false pretence stated was that the 
 defendant said that he had paid a sum of money into the bank, and 
 the proof was, that he said that a sum of money had been paid into 
 the bank, without saying by whom, the defendant was acquitted for 
 the variance, Lord Ellenborough holding that there was a difference 
 in substance between the two assertions. B. v. Plestow, 1 Camp. 494. 
 In an indictment for larceny, the evidence must correspond with the 
 indictment as to the species of goods stolen ; as, for instance, an indict- 
 ment for stealing a pair of shoes cannot be supported by evidence of 
 a larceny of a pair of boots. Where an indictment (on the repealed 
 Stat. 16 G. 2, c. 34, and 14 G. 2, c. 6, which made it felony without 
 benefit of clergy to steal any cow, ox, heifer, etc.) charged the de- 
 fendant with stealing a cow, and in evidence it was proved to be a 
 heifer, this was holden to be a fatal variance ; for the statute having 
 mentioned both cow and heifer, proved that the words were not con- 
 sidered by the legislature as synonymous. B. v. Cooh, 2 East, P. C. 
 616 ; 1 Leach, 123. See also B. v. Douglas, 1 Camp. 212. In like 
 manner it was decided that, as the statute specified lambs and sheep, 
 an indictment for stealing lambs was not proved by evidence of steal- 
 ing sheep ; B. v. Loom, 1 Mood. C. C. 160 ; and for the same reason 
 it was holden, upon the repealed stat. T (& S G. i, c. 29, s. 25, that an 
 indictment for stealing a sheep is not supported by proof of stealing 
 an ewe. B. v. Puddifoot, 1 Mood. C. C. 247: B. v. Birket, iC.diP. 
 216 ; but that case is now overruled; see B. v. M'Oulley, 2 Mood. 
 
 C. C. 34, and B. v. Spicer, 1 Den. 82; 1 C. d K. 699 {ante, p. 61). 
 Where an indictment upon the repealed stat. 43 G. 3, c. 58, charged 
 the defendant with cutting J. S., and the evidence proved a 
 stabbing, the variance was holden fatal, for the statute used the 
 alternative, stab or cut. B. v. MDermott, B. & B. 356. Upon an 
 indictment for peijury, the oath was q,lleged to have been taken at 
 the assizes, before justices assigned to take the assizes, and it was 
 holden a fatal variance that the oath was administered when the 
 
 k5 
 
202 Evidence, 
 
 judge was eitting undfer the commission of Oyer and terminer and 
 gaol delivery. B. v. Lincoln, R, & R. 421. See R. y.Alfotd, UEast, 
 218, n, and R. v. Cooke, 1 C.&P. 559. And where an indictment for 
 being at large after an order for transportation stated that his Majesty 
 had extended his mercy to the prisoner, upon condition of trans- 
 portation for life beyond the seas, and the condition upon which he 
 received the royal mercy was not general, but specific, that he should 
 be transported to New South Wales, or some of the islands adjacent 
 it was holden a fatal variance. R. v. Fitzpatriok, R. S R. 612. But 
 it is sufScient if the evidence agree in substance with the allega- 
 tion in the indictment. Thus, for instance, upon an indictment for 
 murder, if it appeared (before the statute 14 & 15 Vict. c. 100, s. 4, 
 which makes it sufficient to charge generally that the defendant " did 
 • feloniously, wilfully and of his malice aforethought, kill and murder 
 the deceased," without setting forth the manner or means of doing it) 
 that the party was killed by a weapon different from that described, it 
 would support the indictment ; as if a wound or bruise, alleged to have 
 been given with a sword, were'proved to have been given with a staff ; 
 or if the death were stated to have been caused by one sort of poison, 
 a,nd were proved to have been occasioned by another, provided the 
 death were caused by means ejusdem generis. (See post, title Murder.) 
 So, a variance in the number of articles, or in their value, is im- 
 material, provided the value proved be sufficient to constitute the 
 offence in law. And if there be ten different species of goods enume- 
 rated, and the prosecutor prove a larceny of any one or more, it will 
 be sufficient, although he fail in his proof of the rest ; except in a 
 case where value is essential to constitute the offence, and the value 
 is ascribed to all the articles collectively ; for in that case the offence 
 must be made out as to every one of the articles. R. v. Forsyth, R. 
 & R. 274. Money or bank-notes may be described simply as money, 
 without specifying any particular coin or bank-notes ; and «uch alle- 
 gation, so far as regards the description of the property, shall be sus- 
 tained by pi'oof of any amount of coin, or of any bank-note, although 
 the particular species of coin of which such amount was composed, 
 or the particular nature of the bank-note, shall not be proved. 14 & 
 15 Vict. c. 100, s. 18, see ante, p. 59. 
 
 An allegation which need not be made does not require proof; 
 and therefore, upon an indictment for wounding, with intent, etc., 
 which alleged the fact to have been done with a stick and kicking, 
 it was holden that the means stated were mere surplusage. R. v. 
 Briggs, 1 Mood. C. C. 318. 
 
 The names of the persons against whom the ofence was committed, 
 and of any party whose existence is legally essential to the charge, 
 must be proved as laid. {See ante, p. 39 ; R. v. Earl of Cardiga/ii, 
 Doiti. Proc. 1841: R. v. Frost, Dears. 474; 24 L. J. (M. C.) 116) 
 Thus, in an indictment for larceny, the property in the goods 
 must be proved as laid ; that is, the person whose goods they are 
 alleged to be must be proved to be eithet the actual owner or the 
 bailee of them. (See amte, p. 41.) Even where an indictment for 
 burglary charged the defendant With breaking and entering the house 
 of J. D., with intelit to steal the goods of J. W., and it appeared in 
 evidence that no goods of any person of the name of J. W. were in 
 the house, but that the name of 3. W. had been inserted in thfe in- 
 dictment by ttiistake, the judges held that the variance was fatal, 
 and the defendant Was -accordingly acquitted. R. v. JenJds, 2 East, 
 P. C 614. So, if it appear in evidence that the alleged owner of 
 
Evidence. 203 
 
 the goods is a feme covert, the defendant must be acquitted, unless 
 the indictment be amended ; 1 Hale, 513 ; for they are in law the 
 goods of her husband. So, where a burglary was alleged to have 
 been committed in the house of J. G., and it turned out in evidence 
 to be the dwelling-house of J. S., the defendant was acquitted for the 
 variance. JR. v. White, 1 Leach, 252. So, where a larceny was 
 alleged to have been committed in the house of J. G., and it turned 
 out in evidence to be the dwelling-house of J. S., the defendant was 
 acquitted of the stealing in the dwelling-house, and found guilty of 
 the simple larceny merely. So, in all other cases, a material variance 
 between the indictment and evidence, in the name of the party in- 
 jured, unless an amendment be made, will be fatal, and the defendant 
 must be acquitted. But the party injured may, as we have seen 
 {ante, p. 39), be described either by his real name, or by that by which 
 he is usually known. R. v. Norton, R. & R. 510 : R. v. J. Williams, 
 7 C. & P. 298. And if the name proved be idem sonans with that 
 in the indictment, and different in spelling only, the variance will be 
 immaterial. Thus " Segrave " for " Seagrave," Williams v Ogle, 2 
 Str. 889; "Benedetto" for " Beniditto," Ahitbol v. Beniditto, 2 
 Taunt. 401 ; and " Wliyneard" for "Winyard," pronounced "Winn- 
 yard," R. v. Foster, R. & R. 412 ; " M'Nicole" for " M'Nicoll," R. v. 
 Wilson, 1 Den. 384; 2 C. & K. 527; 17 L. J. {M. C.) 82, is no 
 variance ; but it has been decided that " M'Cann" and " M'Carn," R. 
 v. Tannet, R. & R. 351 ;'" Shakespeare" and " Shakepeare," R.y. 
 Shakespeare, 10 East, 83 ; " Tabart" and " Tarbart," Bingham v. 
 Dickie, b Taunt. 814; and " Shutliff" and "Shirtliff," 1 Chit. 216, 
 are not the same in sound. The question whether the names are 
 idem sonantia, is a question of fact for the jury to determine. R. v. 
 Davis, 2 Den. 231; 20 L. J. (M. C.) 207. 
 
 If the prosecutor be described with an addition, though unneces- 
 sary, it must, as it seems, be proved. R. v. Deeley, 1 Mood. C. C. 303; 
 see ante,p. 39 ; hut see R. v. Ogilvie, 2 C. <& P. 230: R. v. Graham, 2 
 Leach, 547, contra, ante, p. 39. So if he be desci-ibed as a person to 
 the jurors unknown, and it appear in evidence that his name is known, 
 that is a variance. See R. v. Walker, 3 Camp. 264 : R. v. Robinson, 
 1 Holt, 595. And where, in an indictment for receiving stolen goods, 
 the principal felon was described as a person to the jurors unknown, 
 but it appeared in evidence that he was known, the receiver was 
 acquitted for the variance. R. v. Walker, 3 Camp. 264. But a bill 
 found by the same grand jury, imputing the principal felony to J. S., 
 does not, sufficiently for this purpose, prove that J. S. committed the 
 felony. R. v. Bush, R. & R. 372. 
 
 Records produced in evidence must be strictly conformable with 
 the statement in the pleading they are intended to prove ; and any 
 variance in substance between the matter set out and the record 
 produced in evidence will be fatal, unless the variance be amended 
 at the trial. 9 G. 4, c. 15 ; 11 <6 12 Vict. c. 46, s. 4 ; 14 c6 15 
 Vict. c. 100, s. 1 (post, p. 206.) The rule in criminal cases, in 
 this respect, is the same as in civil actions. Thus, in an action 
 for a malicious prosecution, the declaration having stated that the 
 indictment afterwards, to wit, on the 25th February, 1791, came on 
 to be tried, and by the record, when produced, the trial appeared to 
 have been on a different day, the plaintiff was nonsuited, although 
 the day was laid under a videlicet. Pope v. Poster, AT. R. 690; cont., 
 Purcell V. M'Namara, 9 East, 157: ace. Woodford y. Ashley, 11 East, 
 608 ; see 2 Sound. 291 6. So, an allegation that the plaintiff was ac- 
 
204 Evidence. 
 
 quitted by a jury in the court of our lord the King, before the King 
 himself at Westminster, before the chief justice, and discharged 
 thereupon by the court, was holden not to be proved by a record 
 stating the trial to have been at Nisi Prius, and the plaintiff to have 
 been discharged by the court in banc. Woodford v. Ashley, 2 Camp. 
 193 ; 11 East, 508. So, where the return of a writ was laid to be in 
 the 25th year of the King's reign (under a videlicet), and the writ 
 itself appeared to be returnable in the 24th year, the court held the 
 variance to be fatal. Cheen v. Rennett, 1 T. B. 656. So, where an 
 indictment for perjury, assigned on an affidavit made for the purpose 
 of setting aside a judgment, alleged that the judgment was entered 
 up "in or as of" Trinity Term, 5 W. 4, and, on an examined copy of 
 the record being produced, it appeared that the day on which the 
 judgment was signed was entered in the margin, June the 26th, 5 W. 4, 
 according to the rules of practice of Hilary Term, 4 W. 4, this was 
 held a fatal variance, and the judge refused to amend under the stat. 9 
 G. 4, c. 15. B. V. Cooke, 1 C. & P. 559. So where, on a charge of per- 
 jury, alleged to have been committed before commissioners to examine 
 witnesses in a chancery suit, the indictment stated that the four com- 
 missioners named in the commission were commanded to examine the 
 witnesses, but the commission, when put in, appeared to authorize the 
 commissioners, " or any two or three of them," to examine the wit- 
 nesses, this was holden a fatal variance, and the judge refused to 
 amend. B.v.IIewins,dC.<l;P.'786. So, where an indictment for per- 
 jury, alleged to have been committed on the trial of an action of debt in 
 the county court, stated, in one count, that the county court was held 
 before A. B., the high sheriff, and the oath sworn before him ; in a 
 second, that it was held before C. D., the county clerk, and the oath 
 sworn before him ; and in a third, that it was held before C. D., 
 so being such county clerk as aforesaid, and the suitors [naming 
 them] , and the oath sworn before C. D., so being such county clerk as 
 aforesaid, and the said E. P., etc., suitors of the said court of the said 
 sheriff as aforesaid : it was held bad, the county court being misde- 
 scribed in each count ; for that court is the court of the sheriff held 
 before the suitors. R. v. Fellowes, \ C. & K. 115. See Jonesv. Jones, 
 bM.&W. 523 ;% L.J. (Exch.) 41. But where an indictment for 
 perjury stated that a certain cause (in which the perjury was alleged 
 to have been committed) was tried at the assizes before E. W., one of 
 the judges, etc., it was holden to be proved in substance by the Nisi 
 Prius record, which stated in the usual form that the cause was tried 
 before the two justices of assize, one of whom was E. W. R. v. Alford, 
 14 East, 218, n. So, where an indictment for peijury alleged the trial 
 of an issue before A. B., sheriff of D., by virtue of a writ of trial 
 directed to the said sheriff, the writ was directed to the sheriff, and 
 the return was of a trial before him, but it was proved that in fact 
 the trial took place before a deputy, not the under-sheriff, this was 
 held no variance. R. v. Dunn, 2 Mood. C. C. 297; IC.&K. 730. An 
 indictment stated that, at the assizes held, etc., C. P., " together with 
 one T. P., was " in due form of law tried and convicted, on an in- 
 dictment depending against them for uttering counterfeit coin, and 
 thereupon it was considered by the court there that C. P. should be 
 imprisoned for two years. The record stated the conviction of C. P., 
 and the acquittal of T. P. It was held that there was no variance, 
 for that the allegation in the indictment did not import that T. P. 
 was convicted. B. v. Page, 2 C. & P. 756 ; 2 Mood. C. C. 219. See 
 1 r. iS. 237, ra.,,240, «. 
 
Evidence. 205 
 
 If the matter of a written instrument be introduced in a pleading 
 (which, however, is now in general unnecessary in criminal cases, see 
 ante, p. 56) by the words " according to the tenor following," or " of 
 the tenor following," or " in the words and figures following," or " the 
 words and matters following," or, in fact, any other words which imply 
 that a correct recital is intended, the instrument must be set out 
 correctly. E. v. Powell, 2 East, P. C. 976. See Id. 961 ; even though 
 the pleader need not have set out more than the substance of the 
 instrument in the particular case. A mere literal variance, however 
 (that is, where the omission or addition of a letter does not alter or 
 change a word, so as to make it another word, B. v. Drake, 2 Salk. 
 661), will not be material; as, for instance, "receivd" for "received," 
 B. V. Hart, 1 Leach, 146; 2 East, P. C. 977, "undertood" for 
 "understood," B. v. Beach, Cowp. 229, "Messes." for "Messrs.," 
 B. V. Oldfield, 1 Buss. 360, or the like. On the other hand, if the 
 matter of a written instrument be introduced by words which imply 
 that the substance only, and not the very words of the instrament, is 
 set out; as, for instance, by the words, "in substance as follows," 
 Wright v. Clements, i B. & Aid. 503, or, " to the effect following," 
 B. V. Bear, 3 Salh. 417, or, " in manner and form following," B. v. 
 May, 1 Dmig. 193; 1 Leach, 227, or the like, if the instrument pro- 
 duced in evidence be in substance the same with that set out, it will 
 be suflScient. See the authorities collected. Stark. Crim. PI. tit. 
 Variance. 
 
 If a written instrument be described in pleading as purporting to 
 he so and so (see ante, p. 67), the instrument, when produced in 
 evidence, must appear upon the face of it to be what it is described 
 in the pleading as purporting to be, otherwise the variance may be 
 taken, advantage of at the trial. For instance, where the instrument 
 was described in an indictment as " a certain paper writing pui-poi't- 
 ing to be a bank-note," and the note produced, though made to re- 
 semble, varied materially in its form from a real bank-note, the 
 defendant was acquitted. B. v. Jones, 1 Doug. 300. So, where a 
 bill of exchange was described in an indictment as " purporting to 
 be directed to one J. King, by the name and description of J. Ring," 
 the judgment was arrested; for if it were really directed to J. Ring, 
 it could not purport (that is, appear upon the face of it) to be 
 directed to J. King. B. v. Beading, 1 East, 180, re.; 2 Leach, 590. 
 See B. V. Gilchrist, 2 Leach, 667: B. v. Edsall, Id. 662. 
 
 Where words are the gist of the offence, and consequently set out 
 in the indictment, they must be proved as laid : if there be any 
 material variance between the words proved and those laid— even if 
 laid as spoken in the third person, and proved to have been spoken 
 in the second, B. v. Berry, 4 T. B. 217, or laid as spoken affirma- 
 tively, and proved to have been spoken by way of inteiTogation, 
 Barnes v. Hollmvay, 8 T.B. 150, or the like — the defendant must be 
 acquitted, unless an amendment be made. But if some of the words 
 be proved as laid, and the words so proved be sufficient to constitute 
 the offence for which the defendant is indicted, failing to prove the 
 remainder of the words will not be material. The rule is the same 
 as in civil actions for defamation. See Compagnon v. Martin, 2 W. 
 Bl. 790: Waltersy. Mace, 2 B. & Aid. 756: Hancocks. Winter, 7 
 Taunt. 205. Where words .are laid as an overt act of treason, it is 
 sufficient to prove that the words really used were the same in sub- 
 stance as those laid, for the reason mentioned, ante, p. 67. 
 
 Important alterations have been made in the law upon the subject 
 of variances, by several recent acts of parliament. In the ifirst 
 
206 Evidence. 
 
 place, by stat. 9 G. 4, c. 15, judges at Nisi Prius, and courts of oyer 
 and terminer and general gaol delivery, were empowered to amend 
 the record upon which any trial might be pending, in any indictment 
 or information for any misdemeanor, where any variance should 
 appear between any matter in writing or in print produced in evi- 
 dence, and the recital or setting forth thereof upon the record. By 
 Stat. 11 (fc 12 Vict. c. 46, s. 4, the same powers were given to the same 
 courts and judges in all criminal trials. By 14 <& 13 Vict. c. 45, «. 10, 
 the same powers were given to courts of quarter sessions. In the 
 construction of the 9 G. 4, c. 15, it was holden to apply to those 
 cases only in which a written instrument was professed to be set out, 
 Byder v. Malbon, 3 C.(& P. 594, and then only to mere verbal alter- 
 ations, and not to omissions which altered the effect of the part set 
 out. See Rutherford v. Evans, 4 C. <& P. 19: Jelfv. Oriel, i C. <& 
 P. 22: Bentzing v. Scott, 4: C. S P. 24: Briant v. Eicke, Moo. & M. 
 359: R. V. Christian, C. & Mar. 388: R. v. Newton, IC.&K. 469: 
 Webh V. Hill, 3 C. (& P. 485. And it was said that amendments 
 ought to be made under this statute very sparingly in criminal cases. 
 R. V. Cooke, 1 C.&P. 659: R. v. Hmins, 9 C. d P. 786. 
 
 But much more extensive powers of amendment in criminal cases 
 have now been given by the stat. 14 S 15 Vict. c. 100, s. 1, which 
 enacts that whenever, on the trial of any indictment [a« to the extended 
 meaning to be given to the word " indictment" in this statute, see 14 <& 
 15 Vict. c. 100, s. 30, ante, p. 49] for any felony or misdemeanor, 
 there shall appear to be any variance between the statement in such 
 indictment and the evidence offered in proof thereof, in the name of 
 any county, riding, division, city, borough, town corporate, parish, 
 township, or place mentioned or described in any such indictment, — 
 or in the name or description of any person or persons, or body 
 politic or corporate, therein stated or alleged to be the owner or 
 owners of any property, real or personal, which shall form the 
 subject of any offence charged therein, — or in the name or descrip- 
 tion of any person or persons, body politic or corporate, therein 
 stated or alleged to be injured or damaged or intended to be injured 
 or damaged by the commission of such offence, — or in the christian 
 name or surname, or both christian name and surname, or other 
 description whatsoever, of any person or persons whomsoever therein 
 named or described,— or in the name or description of any matter or 
 thing whatsoever therein named or described, — or in the ownership 
 of any property named or described therein ; — it shall and may be 
 lawful for the court, before which the trial shall be had, if it shall 
 consider such variance not material to the merits of the case, and 
 that the defendant cannot be prejudiced thereby in his defence, 
 on such merits, to order such indictment to be amended, according 
 to the proof, by some officer of the court or other person, both in 
 that part of the indictment where such variance occurs, and in every 
 other part of the indictment which it may become necessary to 
 amend, on such terms as to postponing the trial, to be had before the 
 same or another jury, as such court shall think reasonable; and after 
 any such amendment, the trial shall proceed, whenever the same 
 shall be proceeded with, in the same manner in all respects, and with 
 the same consequences, both with respect to the liability of witnesses 
 to be indicted for perjury and otherwise, as if no such variance had 
 occurred; and in case such trial shall be had at Nisi Prius, the 
 order for the amendment shall be indorsed on the postea, and re- 
 turned together with the record, and thereupon such papers, rolls, or 
 other records of the court from which such record issued as it may 
 
Evidence. 207 
 
 be necessary to amend shall be amended accordingly by the proper 
 officer; and in all other cases, the order for the amendment shall 
 either be indorsed on the indictment, or shall be engrossed on parch- 
 ment, and filed, together with the indictment, among the records of 
 the court: provided, that in all such cases where the trial shall be so 
 postponed as aforesaid, it shall be lawful for such court to respite the 
 recognizances of the prosecutor and witnesses, and of the defendant, 
 and his surety or sureties, if any, accordingly; in which case the 
 prosecutor and witnesses shall be bound to attend to prosecute and 
 give evidence respectively, and the defendant shall be bound to 
 attend to be tried, at the time and place to which such trial shall be 
 postponed, without entering into any fresh recognizances for that 
 purpose, in such and the same manner as if they were originally 
 bound by their recognizances to appear and prosecute or give evidence 
 at the time and place to which such trial shall have been so post- 
 poned ; provided also, that where any such trial shall be to be had 
 before another jury, the crown and the defendant shall respectively 
 be entitled to the same challenges as they were respectively entitled 
 to before the first jury was sworn. 
 
 By sect. 2, every verdict and judgment which shall be given after 
 the making of any amendment under the provisions of this act, shall 
 be of the same force and effect in all respects as if the indictment had 
 originally been in the same form in which it was after such amend- 
 ment was made. 
 
 And by sect. 3, if it shall become necessary at any time for any 
 purpose whatsoever to draw up a formal record in any case where 
 any amendment shall have been made under the provisions of this act, 
 such record shall be drawn up in the form in which the indictment 
 was after such amendment was made, without taking any notice of 
 the fact of such amendment having been made. 
 
 The amendment must in all cases be made before verdict. M. v. 
 Frost, Dears. 474; 24 L. J. {M. C.) 116: R. v. LarUn, Dears. 365; 23 
 L. J. {M. C.) 125. It seems, however, that an amendment may be 
 made after the prisoner's counsel has addressed the jury. R. v. Ful- 
 larton, 6 Cex, 194: R. v. Rymes, 3 C cfc Kir. 326, contra. Where an 
 amendment has once been made there is no power of amending the 
 amendment, or of reverting to the indictment as it originally stood, 
 but the case must be decided upon the indictment in its amended 
 form. R. V. Barnes, L. R., 1 C. C. R. 45 ; 35 L. J. {M. C.) 204 : 
 R. V. Pritchard, L. <fi C. 34; 30 L. J. (M. C.) 169: R. •/. Webster, 
 L. & C. 77. See Lord Campbell's Acts by Greaves, 6. 
 
 Under this statute, it was held that the judges might amend the 
 indictment by striking out an erroneous and unnecessary statement 
 of the time of the passing of an act of parliament referred to in it. 
 R. V. Westl^, Bell, 193; 29 L. J. {M. C.) 35. An indictment for the 
 obstmiction of a footway may be amended where one of the termini 
 of the footway has been misdescribed ; R. v. Sturge, 3 E. d; B. 374 ; 
 23 L. J. (M. C.) 172; so also, an amendment may be made where the 
 ownership of stolen property is wrongly described; R. v. Vincent, 
 2 Den. 464 ; 21 L. J. (M. C.) 109 : R. v. Ma/rks, 10 Cox, 367 ; 
 so also, where on an indictment for perjury it was alleged that 
 the perjuiy was committed on a trial for burning a bam, whereas the 
 proof was that the trial was for firing a stack. R. v. Neville, 6 Cox, 
 69. So also, where an indictment charged the prisoner with the 
 intent to kill and murder A. W. an infant, and the prosecution failed 
 to prove that the child had ever borne such a name, the indictment 
 
208 Evidence. 
 
 was amended by striking out the name and describing the child as 
 " a certain female child whose name is to the jurors unknown." B. 
 V. Welton, 9 Cox, 297. And where in an indictment for perjury 
 before justices they were described as being justices for the county, 
 and the evidence was that they were borough justices only, this was 
 held a proper subject for amendment. R. v. Western, L. B., 1 C. C. 
 R. 122; 37 L. J. (M. C.) 81. An amendment which alters the nature 
 or quality of the offence charged will not be made: therefore, where 
 the defendant was indicted for a forgery charged as a statutable 
 felony, but the offence turned out to be a forgery at common law, 
 and therefore only a misdemeanor, the judge refused to order the 
 word " feloniously" to be struck out of the indictment. R. v. Wright, 
 i F.& F. 320. Where an indictment for false pretences alleged 
 that the prisoner pretended that he had served an order of justices 
 on J. B., and the evidence was that he had said that, he had left the 
 order with the landlady of the house where J. B. lodged, it was held 
 that this was such a variance as was not amendable under the statute, 
 as it was not a variance in the name or description of any matter 
 or thing named or described in the indictment. R. v. Bailey, 6 Cox, 29. 
 It has already been observed, that the intention of the party at the 
 time he commits an offence is often an essential ingredient in it: and, 
 in such case, it is as necessary to be proved as any other fact or cir- 
 cumstance laid in the indictment. Where an indictment alleged that 
 the defendant cut the prosecutor, with intent to murder, to disable, 
 and to do some grievous bodily harm, it was holden not to be sup- 
 ported by proof of an intention to prevent a lawful apprehension, R. 
 V. Duffin, B. <& R. 365 : B. v. Boyce, 1 Mood. C. C. 29, unless for 
 the purpose of effecting his escape, he also harboured the intent 
 stated in the indictment. R. v. Gillow, 1 Mood. C. C. 85. The 
 intention, however, is not capable of positive proof: it can only he 
 implied from overt acts ; and every man is supposed to intend the 
 necessary and reasonable consequences of his own acts. R. v. Dixon, 
 3M.d Sel. 15: R. v. Farrington, R. & R. 207. Therefore, if it cannot 
 be implied from the facts and circumstances which, together with it, 
 constitute the offence, other acts of the defendant, from which it can 
 be implied to the satisfaction of the jury, must be proved at the trial. 
 See 6 East, 464. Thus, on an indictment for maliciously shooting, or 
 for arson, if it be questionable whether the shooting or burning was 
 by accident or design, proof may be given that at some other time 
 the prisoner intentionally shot at the same person, or was attempting 
 to set fire to the same building or stack. R. v. Voice, B. & R. 531: 
 R. V. Dossett, 2 C. <& K. 306. And where four indictments were 
 found against a woman, which respectively charged her with poi- 
 soning her husband and two of her sons, and with attempting 
 to poison a third son, evidence was tendered on the trial of the first 
 indictment that arsenic had been taken by the three sons a few 
 months after their father's death, that all the four persons when 
 taken ill exhibited the same symptoms ; and that the prisoner had 
 been in the habit of preparing their meals: the court held the evi- 
 dence admissible for the purpose of proving that the husband died 
 of arsenic, and that his death had not been accidental. R. v. Oeering, 
 18 L. J. {M. C.) 215 : R. v. Garner, i F. & F. 681 ; S.C.iF.<& F. 
 346, ace. So, on an indictment for embezzlement, where the embez- 
 zlement had been effected by falsifying accounts, the prosecutor was 
 allowed to prove a number of analogous errors in the prisoner's 
 accounts for the purpose of proving that the case on which the in- 
 
Evidence. 209 
 
 dictment was founded was not accidental. R. v. Richardson, 2 
 F. & F. 343; 8 Cox, 448. And in R. v. Proud, L. <& C.9T; 31 L. J. 
 (M. C.) 71, another case of embezzlement, the master's books, kept 
 by the prisoner, were given generally in evidence by the prosecution, 
 though it was objected, on behalf of the prisoner, that the evidence 
 must be confined to the three particulai- entries referring to the three 
 charges in the indictment, and the prisoner having been convicted, 
 the conviction was affirmed. So also, where the prisoner was indicted 
 for arson with intent to defraud an insurance company, for the purpose 
 of throwing light upon the prisoner's intention, and proving that the 
 fire was the result of design and not of accident, evidence was ad- 
 mitted that the prisoner had previously occupied two houses in suc- 
 cession, both of which had been insured, that fires had broken out in 
 both, and that the prisoner had made claims upon and been paid by 
 the insurance companies in respect of the loss caused by each fire. 
 R. V. Gray, A F. <& F. 1102. Upon an indictment for procuring 
 base coin with intent to utter it, evidence of the defendant having 
 a large quantity of such coin is admissible to prove the intent. 
 R. V. Fuller, R. & R. 308. And on an ihdictment for sending a 
 threatening letter, prior and subsequent letters from the prisoner 
 to the party threatened may be given in evidence, as explanatory 
 of the meaning and intent of the particular letter upon which the 
 indictment is fi-amed, R. v. Robinson, 2 Leach, 749, if the intent 
 cannot be inferred from the letter itself. R. v. Boucher, A C. & P. 
 662. Where a man was charged with publishing a libel against 
 magistrates, with intent to defame those magistrates, and also with 
 intent to bring the administration of justice into contempt, Bayley, J., 
 held that proof of his having published it with either of these inten- 
 tions would support the indictment. R. v. Evans, 3 Stark. 35. And 
 where an indictment charged the defendant with having assaulted 
 a female child with intent to abuse and carnally know her, and 
 the jury negatived the intention carnally to know her, but found that 
 the defendant intended to abuse her, Holroyd, J., held that the aver- 
 ment was divisible, and that the defendant might be convicted of an 
 assault with intent to abuse merely. R. v. Dawson, 3 Stark. N. P. 
 62. There are some cases in which the intent is inferred as a 
 necessary conclusion fi-om the act done; as, if a man knowingly 
 utter a forged instrument as a genuine one, the intent to defraud the 
 party to whom he utters it is a necessary inference. R. v. Hill, 2 
 Mood, a a 30; SC.dP. 274: R. v. Cooke, Id. 582. 
 
 If a man be charged with an ofience as principal in the first degree, 
 evidence of his being principal in the second degree will support the 
 indictment, and e converso; as, for instance, if A. and B. be indicted 
 for murder, and the indictment charge that A. gave the mortal 
 stroke, and that B. was present aiding and abetting, evidence that B. 
 gave the mortal stroke, and that A. was present aiding and abetting, 
 will support the indictment; see ante, pp. 10, 11. Fost. 351: R. v. 
 Mackallay, 9 Co. 67 h ; Plowd. 98: R. v. Crisham, C. & Mar. 187. 
 Also, in conspiracies, and even in high treason, when it consists of a 
 conspiracy, and in all other oflences which involve a conspiracy, not 
 only the acts of the defendant himself, but also all the acts of his 
 accomplices, done in furtherance of the common object, no matter 
 where committed, may be given in evidence against him. R. v. 
 Hardy, 1 East, P. C. 98, 99: R. v. Tooke, Id. 98. As a foundation 
 for such evidence, however, the existence of the conspiracy must be 
 first proved; Indly, evidence must be given to connect the defendant 
 
210 Evidence. 
 
 with the conspirators; and Srdly, it must be proved that the person 
 whose acta are about to be given in evidence was connected with the 
 defendant in the same conspiracy. The prosecutor may, however, 
 either prove the conspiracy, which renders tlie acts of the conspira- 
 tors admissible in evidence, or he may prove the acts of the different 
 parties, and so prove the conspiracy. iJ. v. Lovat, 9 St. Tr. "670, etc. 
 See also R. v. Stone, 6 St. Tr. 528 : R. v. Standley, R. <& R. 305 : R. 
 V. Gogerly, Id. 343: R. v. Bingley, Id. 446: R. v. Frost, 9 C. d; P. 
 149 : R. V. Shellard, Id. 277. 
 
 In indictments upon statutes, we have seen (ante, p. 62), that 
 where an exception or proviso is mixed up with the description of 
 the offence, in the same clause of the statute, the indictment mnst 
 show, negatively, that the party, or the matter pleaded, does not 
 come within the meaning of such exception or proviso. The nega- 
 tive averments seem formerly to have been proved in all cases by 
 the prosecutor; but the correct rule upon the subject appears to be, 
 that, in cases where the subject of such averment relates to the 
 defendant personally, or is peculiarly within bis knowledge, the 
 negative is not to be proved by the prosecutor, but, on the contrary, 
 the affirmative must be proved by the defendant, as matter of defence; 
 but, on the other hand, if the subject of the averment do not relate 
 personally to the defendant, or be not peculiarly within his know- 
 ledge, but either relate personally to the prosecutor, or be peculiarly 
 within his knowledge, or at least be as much within his faiowledge 
 as within the knowledge of the defendant, the prosecutor must prove 
 the negative. Thus, informations upon the game laws must negative 
 the defendant's qualification to kill game; but this negative need not 
 be proved upon the part of the prosecution; on the contrary, the 
 defendant must prove the affirmative of it, as matter of defence. R. 
 V. Turner, b M. & Sel. 206. So, informations for selling ale without 
 a licence must negative the existence of a licence ; bnt the informer 
 need not prove the negative. R. v. Hanson, Paley by Dowling, 45, n. 
 See 1 Hawk. c. 89, s. 17; Apothecaries' Co. v. Bentley, IC.&P. 538; 
 Ry. & M. 159. On the other hand, upon an indictment on the 
 repealed stat. 43 G. 3, c. 107, s. 1, which made it felony to course 
 deer in an eijclosed ground, without the consent of the owner — ^that 
 the deer were coursed without the consent of the owner was held neces- 
 sary to be proved on the part of the prosecution. R. v. Rogers, 2 
 Camp. 654. But although it was once supposed that the negative, in 
 such cases, could only be proved hy the owner, it is now fully esta- 
 blished that, it may be presumed from circumstances, or be proved 
 by the agent of the owner. R. v. AUen, R. v. Argent, R. v. Ch/m- 
 berlain, 1 Mood. C. C. 154: R. v. Hazy, 2 C. d: P. 458. 
 
 It is not necessary to prove the offence charged in the indictment 
 to the whole extent laid, provided the facts proved constitute an 
 offence punishable by law, and for which the defendant may by law 
 be convicted on that indictment. R. v. Hollingherry, A B. Jb CI. 330: 
 R. V. Hunt, 2 Camp. 683. Thus, where a statute annexes a higher 
 degree of punishment to a common law felony, if committed under 
 certain circumstances, if, upon an indictment under the statute, the 
 prosecutor prove the felony to have been committed, but fail in 
 proving it to have been committed under the circumstances specified 
 in the statute, the defendant shall be convicted of the common law 
 felony only. So, if a misdemeanor at common law be made ad- 
 ditionally penal by statute, if committed under certain circumstances, 
 the defendant shall be convicted only of the misdemeanor at com- 
 
Evidence. 211 
 
 mon law, if the prosecutor succeed in proving the commission of 
 the offence, but fail in proving that it was committed under the cir- 
 cumstances specified in the statute. 2 Hale, 191, 192. Upon an 
 indictment for murder, if the prosecutor fail in proving the malice 
 prepense, the defendant may be convicted of manslaughter ; S. v. 
 Machzllajj, 9 Co. 67 5; or, on a charge of burglary and stealing goods, 
 if no burglary be proved; or of robbery, if the property be not taken 
 from the person by violence or putting in fear, the prisoner may be 
 convicted of the simple larceny. 2 Hale, 203. Upon the trial of an 
 indictment for any felony, except murder or manslaughter, where the 
 indictment shall allege that the defendant cut, stabbed or wounded 
 any person, the jury may convict of the cutting, etc., and acquit of 
 the felony charged, 14 <£ 15 Vict. c. 19, s. 5 ; and thereupon the de- 
 fendant shall be liable to be punished as if he had been convicted, 
 under the 4th section of the same statute, of the misdemeanor of 
 unlawfully cutting, etc. [The 4th section, however (though not the 
 fifth) is repealed by the 24 <& 25 Vict. c. 96. See 24 <£■ 25 Vict. c. 100, 
 ss. 11, 18, 20.] Upon an indictment under the 23rd section of the 
 24 <6 25 Vict. c. 100, for feloniously administering, etc. poison or 
 other destructive or noxious thing, so as to endanger life or do 
 grievous bodily harm, if the jury are not satisfied that the defendant 
 is guilty thereof, but are satisfied that he is guilty of the misdemeanor 
 mentioned in s. 24, i.e., of administering, etc. with intent to injure, 
 aggrieve or annoy the prosecutor, they may .acquit the defendant of 
 the felony, and find him guilty of the misdemeanor, and he shall be 
 liable to be punished accordingly. Id. «. 25. Upon an indictment 
 for assaulting and unlawfully wounding and ill-treating the prose- 
 cutor, and thereby occasioning him actual bodily harm (24 (& 25 Vict, 
 c. 100, s. 47), the defendant may be convicted of a common assault. 
 iJ. v. Oliver, Bell, 287; 30 L. J. (M. C) 12 : B. v. Yeadon, L. <Sk C. 
 81; 31 L. J. (M. C.) 70. The defendant may also be convicted of a 
 common assault upon an indictment charging him in the first count 
 with unlawfully and maliciously wounding, and in the second count 
 with unlawfully and maliciously inflicting grievous bodily harm, 
 although the word " assault" is not used in the indictment. M. v. 
 Taylor, L. R, 1 C. C. R. >94; 38 L. J. (M. C.) 106./vWhere the* 
 defendant was indicted for stealing a colt, it was holden that he could 
 not be convicted under the stat. 1 Ediij. 6, c. 12, s. 10, wliich did not 
 mention colts, but might be convicted of the simple larceny. R. v. 
 Beaney, R. & R. 416. Upon an indictment for perjury, it is sufficient 
 if any one of the assignments of peijury be proved. See R. v. 
 Rhodes, 2 Ld. Raym. 886. Upon an indictment for high treason, 
 proof of any one overt act is sufficient, provided the overt act so 
 proved be a sufficient overt act of the treason laid in the indictment. 
 1 Hale, 122; Post. 194; 2 Hawh. c. 46, s. 35. Upon an indictment 
 for conspiring to prevent workmen from continuing to work, it is 
 sufficient to prove a conspiracy to prevent one workman from work- 
 ing. R. V. Bykerdike, 1 M. & Roh. 179. Where an indictment con- 
 tains divisible averments, as, that the defendant " forged and caused 
 to be forged," proof of either averment will be sufficient. R. v. 
 Middlehurst, 1 Burr. 400. So, a defendant may be convicted of 
 printing and publishing a libel, upon an indictment which charges 
 him with composing, printing and publishing it. R. v. Hunt, 2 Camp. 
 683: R. V. Williams, Id. 646. And where two intentions are ascribed 
 to one act, as that a libel was published with intent to defame A. B., 
 and also 'to bring the administration of justice into contempt, R. v. 
 Eeans, 3 Starh. 35, or that an assault was committed on a female. 
 
212 Evidence, 
 
 •with intent to abuse and carnally know her, R. v. Dawson, Id. 62, 
 proof of either of these intentions will be sufficient. So, where an 
 indictment charged that the defendant was employed in two branches 
 of the post-office (7 G. 3, c. 50, s. 1), proof of his employment in 
 either was holden sufficient. M. v. Ellins,R. &R. 188. And where 
 an information for a libel charged that outrages had been committed 
 in and near the neighbourhood of Nottingham, it was held that the 
 averment was divisible, and that it was sufficient to prove that out- 
 rages had been committed in either place. R. v. Sutton, i M.d; Sel. 
 532. In larceny, if any one of the articles enumerated in the indict- 
 ment be proved to have been stolen by the defendant, it will be 
 sufficient. 2 Sale, 302: see R. v. Ellins, R. & R. 188. Upon an 
 indictment for extortion, alleging that the defendant extorted twenty 
 shillings, it is sufficient to prove that he extorted one shilling. R. v. 
 Burdett, 1 Ld. Raym. 149. See R. v. Carson, R. & R. 303. And 
 upon an indictment for obtaining money by false pretences, proof of 
 part of the pretence alleged, if the money were obtained upon that 
 part, will be sufficient. R. v. Hill, R. & R. 190. Upon an indict- 
 ment against two for a joint and single offence, as stealing in the 
 dwelling-house, either may be found guilty; but they cannot be found 
 guilty of separate parts of the charge, or upon proof of two distinct 
 felonies. In the former case, a pardon must be obtained, or a mUe 
 prosequi entered, as to the one who stands second upon the indict- 
 ment, before judgment can be given against the other. R. v. Hemp- 
 stead, R. c6 R. 344; in the latter case, judgment may be given 
 against the party who is proved to have committed the first felony 
 in order of time, but the other must be acquitted. R. v. Dmey, 2 
 -Dera. 86; 20 L. J. (M. C.) 105. But where several are indicted for 
 burglary and larceny, one may be found guilty of the burglaiy and 
 larceny, and the others of the larceny only. R. v. Butterworth, B. 
 & R. 520. See ante, p. 69. 
 
 Allegations which are not essential to constitute the offence, and 
 which may be omitted without affecting the charge, or vitiating the 
 indictment, do not require proof, and maybe rejected as surplusage. 
 R. V. Jones, 2 B. d Ad. 611. As, for instance, where a defendant 
 was charged in the indictment with having committed arson in the 
 night-time, and it was proved that he committed it in the day-time, 
 he was convicted, and the conviction was holden good. R. v. Min- 
 ion, 2 East, P. C. 1021. So, if a man be indicted for robbery near 
 the highway, R. v. Summers, 2 East, P. C. 785 : R. v. Wardle, Id.; 
 R. (& R.9, or in a dwelling-house, R. v. Pye, Id. : R. v. Johnstone, 
 Id. 10, and the prosecutor prove the robbery, but fail in proving it 
 to have been committed near the highway, or in the dwelling-house, 
 the defendant shall nevertheless be convicted; for robbery is the 
 same felony wherever committed. So, if an offence, not of a local 
 nature, be described as having been committed in a certain parish ; 
 for the offence is the same wheresoever committed, and the county 
 is the only thing material to give the court jurisdiction. R. v. Wood- 
 ward, 1 Mood. C. C. 323. So, upon an indictment for having in pos- 
 session a die made of iron and steel (upon the repealed stat. 8 <§ 9 
 W. 3, c. 26, s. 1), it was holden immaterial of what the die was made, 
 and that proof of a die made of either or both would satisfy the 
 charge. R. v. Oxford, R. & R. 382 : R. v. Phillips, Id. 369. Upon 
 the same principle, in R. v. Holt, 5 T. R. 446 ; 2 Leach, 593, it was 
 holden, upon an information for a libel, with intent to bring a pro- 
 clamation of the King into contempt, that an averment that divers 
 addresses had been presented to his Majesty on the occasion of such 
 
Evidence. 213 
 
 proclamation, was not connected with the charge, and therefore did 
 not require proof. On an indictment for perjury committed before 
 the Insolvent Debtors' Court, allegations that notice of the defendant's 
 petition was inserted in the Gazette, that a day was appointed for 
 his first examination, and that the sitting on that day was adjourned, 
 were held not to require proof; for the sittings of a court of record 
 are presumed to be lawfully and rightfully held. B. v. Westley, Bell, 
 193; 29 L. J. (M. C.) 35. Upon an indictment charging the de- 
 fendant with taking a false oath in a non-judicial proceeding (which 
 is not perjury, but a common law misdemeanor), and which indict- 
 ment contains an allegation " that so the defendant did commit wilful 
 and corrupt perjury," such allegation may be rejected as surplusage, 
 and need not be proved, and the defendant may be convicted of the 
 common law misdemeanor. R. v. Modghiss, L. R., 1 C. C. R. 
 212 ; 39 L. J. (if. C.) 14. And where an indictment charged the 
 defendant with making a false declaration that he had lost a pawn- 
 broker's ticket, " whereas in truth and in fact he had not lost the 
 said ticket, but had sold, lent, or deposited it as a security," it was 
 held that the allegation " but had sold, lent, or deposited it, etc." 
 was surplusage which might be rejected and need not be proved, and 
 therefore did not render the indictment ambiguous or uncertain. R. 
 V. Parker, L. R., 1 C. C. R. 225 ; 39 L. J. {M. C.) 60. But this rule 
 does not extend to allegations, necessary or unnecessary, which are 
 descriptive of the identity of that which is legally essential to the 
 charge. As, for instance, an indictment for stealing a black horse 
 will not be supported by proof that the horse was of some other 
 colour : for the allegation of colour is descriptive of that which is 
 legally essential to the offence, and cannot be rejected. 2 Stark. 
 Emd. 1531. So, if a person necessarily named in the indictment be 
 described by a false addition, such addition, though unnecessary, is, 
 it seems, material, and must be proved. R. v. Deeley, 1 Mood. C. C. 
 303 ; hut see R. v. Ogilvie, 2C.&P. 230 : R. v. Graham, 2 Leach, 547, 
 contra, ante, p. 39. So, upon an indictment (on the repealed stat. 
 57 G. 3, c. 90) for being found armed with intent to destroy game 
 in a certain wood, called the Old Walk, in the occupation of J. J., it 
 was holden, — it appearing that the wood had always been called the 
 Long Walk, and never the Old Walk,— that, although it was unne- 
 cessaiy to state the name of the close when the occupation was 
 stated, yet, being stated, it was material, and could not be rejected. 
 R. V. Owen, 1 Mood. C. C. 118. And where an indictment for steal- 
 ing a bank-note described it as signed by A. H., for the Governor 
 and Company of the Bank of England, it was holden by the judges 
 that there could be no conviction without evidence of the signature 
 of A. H. R. V. Craven, R. & R. 14. 
 
 Matter of defence, efc.]— Matter of defence, when given in evidence 
 under the general issue (and which is almost invariably the case, see 
 ante, p. 139) is proved by parol evidence, or by records or other 
 written evidence, according to the rules laid down in the next chapter; 
 when pleaded, and put m issue by the replication, it is also proved 
 in the same manner, but subject to the same rules as to variance that 
 have just now been laid down with respect to indictments. And the 
 same as to matter of replication, etc. 
 
 Matter not alleged, in what cases.'] — The general rule upon this 
 subject, in criminal as well as civil cases is, that nothing shall be 
 given in evidence which does not directly tend to the proof or 
 
214 Evidence. 
 
 disproof of the matter in issue. Thus, it is not allowable, upon the 
 trial of an indictment, to show that the prisoner has a genersil dispo- 
 sition to commit the same kind of offence as that for which he stands 
 indicted. Upon an indictment for an infamous crime, an admission 
 by the defendant that he had committed such an offence at any other 
 time with another person, and had a tendency to such practices, 
 ought not to be received. R. v. Cole, 1 Phil. Ev. 181 (7<A ed.). Nor 
 is it allowable upon the trial of a prisoner for wounding a constable, 
 who had arrested him on suspicion of felony, to ask the constable on 
 the part of the prosecution what the prisoner's previous character 
 had been, in order to assist in showing that there were reasonable 
 grounds for the arrest. R. v. Twberfield, L. & C. 495 ; 34 L. J. 
 {M. C.) 20. To the general rule, as above stated, some exceptions 
 have been admitted by statute and there are also some apparent ex- 
 ceptions to it at common law. In high treason, by stat. 1 &iW.i, 
 c. 3, s. 8, no evidence shall be admitted or given of any overt act that 
 is not expressly laid in the indictment ; yet this does not prevent 
 overt acts, not laid, from being given in evidence, if they be direct 
 proof of any of the overt acts which are laid ; R. v. Roohwood, 4 St. Tr. 
 661, 697 ; Holt, 683: and see 4 St. Tr. 722, 731; 6 St. Tr. 282, 284; 
 Post. 9, 22: R. v. Watson, 2 Stark. N. P. 134; and if. any one overt 
 act be proved against the defendant in the proper county, acts of 
 treason tending to prove such overt act, though done in a foreign 
 county, may be given in evidence. Fost. 9, 22 ; 8 St. Tr. 218 ; 9 St. 
 Tr. 558-562, 680 ; 4 St. Tr. 627, 655 ; 6 St. Tr. 292 ; 8 Mod 91. Or, 
 if the treason consist of a conspiracy, any act of the defendant's 
 accomplices done in furtherance of the common design, although not 
 laid as an overt act in the indictment, may be given in evidence, 
 provided it be direct proof of an overt act laid. R. v. Hardy, 1 East, 
 P. C. 98, 99. So, in ordinary cases of conspiracy, acts done by some 
 of the conspirators in the county in which the offence is laid being 
 proved, acts done by others of the conspirators in other counties may 
 be given in evidence. R. v. Bowes, 4 East, 171, cit. And in an 
 indictment against persons for a conspiracy to carry on the business 
 of common cheats, evidence was admitted of the defendants having 
 made false representations to other tradesmen besides those named 
 in the indictment. R. v. Roberts, 1 Camp. 400. In R. v. Himt, 3 B. 
 <& Aid. 566, upon an indictment for conspiring and unlawfully meet- 
 ing for the purpose of exciting disaffection and discontent among his 
 Majesty's subjects at Manchester, it was holden that the previous 
 conduct of a portion of the assembly, in training, etc., and in assault- 
 ing persons whom they called spies, was competent evidence as to 
 the general character and intention of the meeting, although the 
 effect of it, as to each particular defendant, was a distinct matter for 
 the consideration of the jury. It was holden, also, that it was com- 
 petent to show, as against Hunt, (who though a stranger, except by 
 political connection, had been invited to preside as chairman at the 
 meeting,) that at a similar meeting in another place, holden for an 
 object professedly similar, certain resolutions had been proposed by 
 that person; it being in its nature a declaration of his sentiments 
 and views on the particular subject of such meetings and of the 
 topics there discussed. But the court held, that evidence of the mis- 
 conduct of the military and others, in the subsequent dispersion of 
 the meeting, was properly refused by the judge at the trial, as irre- 
 levant and having no bearing upon the intention and objects of the 
 meeting, which intention and objects obviously existed previously 
 to the alleged misconduct of the military attempted to be given in 
 
Evidence. 215 
 
 evidence. With a view to prove the identity of the defendant, it 
 may be shown that other goods not included in the indictment, which 
 were stolen from the premises at the same time, were found in his 
 possession. So, it may be shown, upon an indictment for arson, that 
 property taken out of the house at the time of the firing was after- 
 wards found secreted in the possession of the prisoner. M. v. Hick- 
 man, 2 East, P. C. 1035. Where several offences are connected 
 together, and form one entire transaction, upon an indictment for 
 one, the others may be proved, to show tlie character of the trans- 
 action. R. V. Ellis, 6B.d: a 145 : R. v. Egerton, R. & R. 375 : R. 
 V. Rooney, 1 C. & P. 517 : R. v. Mansfield, C. & Mar. 140 : R. v. 
 Bleasdale, 2 C. & K. 765 : R. v. Firth, L. R., 1 C. C. R. 172 ; 38 L. 
 J. (M. C.) 54. And upon the trial of four men for a burglary at W., 
 evidence of three other burglaries by the same men on the same 
 night was admitted in order to explain why none of the property 
 taken from W. was found upon one of the prisoners as his share of 
 the booty. R. v. Cobden, S F. <& F. 833. On a trial for feloniously 
 abusing and carnally knowing a female child under the age of ten 
 years, evidence was admitted of subsequent perpetrations of the same 
 offence on different days, previous to the complaint to the mother, it 
 appearing that the prisoner had threatened the child on the first 
 occasion— on the ground that, virtually, in such a case it was all 
 part of one and the same transaction. R. v. Rearden, i F. <& F. 76. 
 But if the offences be distinct, evidence of one offence is, in general, 
 inadmissible on the trial of the prisoner for another offence ; R. v. 
 Birdseye, A C. & P. 386 : R. v. Holt, Bell, 280 ; 30 L. J. (M. C.) 11 : 
 R. V. Fuidge, L. & C. 390; 33 L. J. (if. C.) 74; even where it is 
 derived from the admission of the defendant himself. R. v. Butler, 2. 
 C. & K. 221. To prove the defendant to be the author of a libel, 
 evidence of other libels written by the same person and concerning 
 the same subject may be received. R. v. Pearce, Peahe, 75. 
 
 By 24 & 25 Vict. c. 96, s. 41, on an indictment for robbery, the 
 defendant may be convicted of an assault with intent to rob. A 
 person indicted for embezzlement as a clerk or servant, may be con- 
 victed of larceny, and vice versa. Id. s. 72. If, upon the trial of a 
 person for a misdemeanor, the facts given in evidence appear to 
 amount in law to a felony, he may nevertheless be convicted. 14 d; 
 15 Vict. c. 100, s. 12, ante, p. 164. So, a person charged with any 
 felony or misdemeanor, if it appear upon the evidence that he did 
 not complete the offence charged, but that he was guilty only of an 
 attempt to commit it, is not therefore entitled to be acquitted, but 
 may be found guilty of the attempt, and punished accordingly. Id. 
 s. 9, ante, p. 164. 
 
 Where a guilty Jmowledge on the part of the defendant is to be 
 proved, the prosecutor is allowed to give in evidence other instances 
 of his having committed the same offence for which he is now indicted. 
 As, for instance, upon an indictment for disposing of and putting 
 away a forged bank-note, knowing it to be forged, the prosecutor 
 may give evidence (see R. v. Millard, R. & R. 245) of other forged 
 notes having been uttered by the prisoner at other times, before or 
 after the commission of the offence for which he is indicted ; R. v. 
 Wylie, IN. R. 93 -,2 Leach, 983 : B. v. Tattersal, 1 N. R. 93 : R. v. 
 Ball, R. & R. 132 ; 1 Camp. 324 ; or that he had other forged notes 
 of the same kind in his possession ; R. v. Emigh, R. & R. 120; or, 
 as it would seem, of a different kind, Bayley on Bills, 450 ; in order 
 to prove, or at least to raise a presumption of, his knowledge that the 
 note in question was forged. So also, upon an indictment for uttering 
 
216 Evidence. 
 
 a forged bill of exchange, guilty knowledge may be proved by show- 
 ing that the prisoner has at different times uttered other bills forged 
 in other names. R. v. Salt, 3 F. & F. 834. So, upon an indictment 
 for uttering counterfeit money, it is competent to the prosecutor to 
 prove that other pieces of such counterfeit money were found upon 
 the defendant, or were uttered by him at different times. 1 N. B. 96. 
 For the same reason, proof of the defendant's conduct in such other 
 utterings, as, for example, that he passed by different names, is 
 admissible. Bayley on Bills, 449. So, on an indictment for having 
 knowingly and with guilty intent the possession of coining instru- 
 ments, evidence may be given of the defendant's previously uttering 
 bad money. R. v. Weeks, L. <6 G 18 ; 30 L. J. (M. C.) 141. Where 
 the prisoner was indicted under 7 <£ 8 (?. 4, c. 29, s. 37, in one count, 
 for stealing coal from the mine of Gr. and from the mines of thirty 
 other coal owners, and it appeared that the prisoner was himself the 
 lessee of coal, and had carried workings from his own mine into the 
 beds of forty different coal owners, from all of which he had got coal 
 without their sanction, Erie, J., before whom the case was tried, 
 thought it better that the attention of the jury should be confined to the 
 charge of taking the coal of one owner, G-. ; but in order to show that 
 when the prisoner took G.'s coal he knew he was out of his boundary, 
 the learned judge permitted it to be proved that the prisoner had gone 
 out of his boundary in many other instances, and into the property 
 of many other persons, taking in all 15,000 yards of coal. JS. v. 
 Bleasdale, 2 C.S K. 765. And where, upon the trial of an indictment 
 for larceny, it appears that the property alleged in such indictment 
 to have been stolen at one time was taken at different times, although 
 the prosecution may be called upon under 24 & 25 Vict. c. 96, s. 6, 
 to elect upon which takings they will proceed, evidence may be 
 given of takings other than those upon which they elect to proceed, 
 in order to show guilty knowledge, and the felonious nature of the 
 takings proceeded upon. R. v. Firth, L. R., 1 C. C. R. 172 ; 38 L. J. 
 (M. C.) 64. Upon an indictment for receiving stolen goods, evi- 
 dence was allowed to be given of the receipt by the defendant at 
 different times, from the same person, of several articles stolen from 
 the prosecutor, for the purpose of showing a guilty knowledge. B. 
 V. Dunn, 1 Mood. C. C. 148: see R. v. Davis, 6 C. <& P. 177: iJ.v. 
 Nicholls, \ F.&F. 51. But on the trial of an indictment containing 
 counts for stealing, and for receiving the goods of A., knowing them 
 to be stolen, evidence of the possession by the prisoner of other 
 goods stolen at other times, from other persons, was held not admis- 
 sible on either count. R. v. Oddy, 2 Den. 264 ; 20 L. J. {M. C.) 198. 
 That case, however, was decided before the passing of 32 & 33 Viet. 
 c. 99 (The Habitual Criminals Act, 1869). Sect. 11 of that statute has 
 much facilitated the proof of guilty knowledge on the trial of an indict- 
 ment for receiving stolen goods, and enacts (amongst other things), 
 that " where proceedings are taken against any person for having in 
 his possession stolen goods, evidence may be given that there were 
 found in the possession of such person other goods stolen within the 
 preceding period of twelve months, and such evidence may be taken 
 into consideration for the purpose of proving that such person knew the 
 goods to be stolen which form the subject of the proceedings taken 
 against him." The former part of the same section also enacts, that 
 " where any person who, either before or after the passing of this act, has 
 been previouslj' convicted of any offence specified in the first schedule 
 hereto [viz., any felony not punishable with death also, or the offence 
 of uttering false or counterfeit coin, or of possessing coimterfeit gold 
 
Evidence. 217 
 
 or silver coin, or the oflfence of obtaining goods or money by false 
 pretences, or the offence of conspiracy to defraud, or misdemeanor 
 under 24 & 25 Vict. c. 96, s. 58], and involving fraud or dishonesty, 
 is found in the possession of stolen goods, evidence of such previous 
 conviction shall be admissible as evidence of his knowledge that 
 such goods have been stolen ; and. in any proceedings that may be 
 taken against him as receiver of stolen goods, or otherwise in rela- 
 tion to his having been found in possession of such goods, proof may 
 be given of his previous conviction before evidence is given of his 
 having been found in possession of such stolen goods ; provided that 
 not less than seven days' notice shall be given to such person that 
 proof is intended to be given of his previous conviction, and that he 
 will be deemed to have known such goods to have been stolen until 
 he has proved the contrary." On a charge of obtaining goods by a 
 false pretence, evidence of a subsequent obtaining of other goods 
 from a different person by a similar false pretence, was held inad- 
 missible. R. V. Holt, Bell, 280; 30 L. J. (M. C.) 11. 
 
 Nearly the same rule applies, where it is requisite for the prose- 
 cutor to prove malice or intent on the part of the defendant. As, 
 for instance, upon an indictment for murder, former attempts of the 
 defendant to assassinate the deceased would not only be receivable 
 in evidence, but would be very strong presiunptive proof of malice 
 prepense. See R. v. Yoke, R. & R. 531, and other cases cited (ante, 
 p. 208.) So, for the same reason, former menaces of the defendant, 
 or expressions of vindictive feeling towards the deceased, or, in fact, 
 the existence of any motive likely to instigate him to the commission 
 of the offence in question, are also in such a case receivable in evi- 
 dence. In a civil action for defamation, the plaintiff is always allowed, 
 in order to prove the malice of the defendant, to give in evidence 
 other words spoken by the defendant of the plaintiff besides those 
 set out in the declaration ; Warm v. Chadwell, 2 StarJe. ibl : Rustel 
 V. Macquister, 1 Camp. 49 ; and the same in actions for libel. Lee 
 V. Muson, Peahe, 166 : Chubb v. Westley, 6 C.S P. 436 : Darhy v. 
 Ouseley, IS. d; N.l: Pearson v. Lemaitre, 6 Scott, N. R. 607 ; 5 M. 
 & Gr. 700: Macleod v. Wahley, 3 C. & P. 311 : Plunkett v. Gobbett, 
 5 Esp. 136. It seems, however, that evidence of other libels will 
 not Ije admitted, unless they distinctly refer to the libel set out ia 
 the declaration, or at least refer to the same subject-matter. Fin- 
 Tterty v. Tipper, 2 Camp. 72. 
 
 Upon an indictment for a rape, the defendant may give general 
 evidence of the woman's character for want of chastity, or he may 
 prove that she had before been criminally connected with him ; R. 
 v. Aspinall, 2 Stark. Evid. 700 : R. v. Martin, 6 C. & P. 562 ; but not, 
 as it seems, that she had been criminally connected with others ; R. 
 V. Hodgson, R. <& R. 211: sed quoere, see R. v. Martin, supra. And the 
 same upon an indictment for an assault with intent to commit a rape. 
 R. y. Clarke, 2 Stark. 242. See R. v. Barker, 3 C. d P. 589. Upon 
 an indictment for libel, the defendant has been allowed to give in 
 evidencesuch other parts of the same publication as were fairly con- 
 nected with the libel in question, and upon the same topic, in order to 
 disprove the motive imputed to him by the indictment, and to show 
 the fair construction that should be put upon the passages therein 
 set out. R. V. Lambert, 2 Camp. 398. And in Some Tooke's case, 
 1 East, P. C. 61, 62, it being proved on the part of the prosecution 
 that the defendant had distributed several publications advocating 
 republican principles, which was offered in evidence, in order to pro- 
 TV. L 
 
218 Evidence. 
 
 duce a presumption that parliamentary reform (which was expected 
 to be set up by the prisoner in his defence) was a mere pretext to 
 cover his treasonable purposes, the defendant, in order to rebut that 
 presumption, was allowed to give in evidence a book upon parlia- 
 mentary reform, written by him, and published twelve years before. 
 The prisoner also will be allowed to call witnesses to speak gene- 
 rally as to his character, but not to give evidence of particular acts, 
 unless such evidence tend directly to the disproof of some of the facts 
 put in issue by the pleadings. A witness to chai-acter will not be 
 allowed to speak to his own opinion of the prisoner's disposition, 
 but only as to the genei'al i-eputation in which the prisoner is held. 
 R. V. Rmoton, L. & C. 520; 34 L. J. (M. C.) 57. Witnesses called 
 by the prisoner as to character may be cross-examined either as to 
 particular facts, R. v. Hodgldas, 1 C. & P. 298, or as to the grounds 
 of their belief (2 St. Ev. 304). General evidence of good character 
 may also be rebutted by general evidence of bad character. JJ. v. 
 Rowton, ubi supra. And if the prisoner endeavours to establish a 
 good character, either by calling witnesses himself, or by cross- 
 examining the witnesses for the prosecution, R. v. Gadbury, 8 C. <fc 
 P. 676 : R. V. Shrimpton, 2 Den. 319 ; 21 L. J. (M. C.) 37, the pro- 
 secution is at liberty, in most cases, to give proof of the prisoner's 
 previous conviction. 1 & % G. 4, c. 28, s. 11; 6 (fc 7 W.A, c. Ill; 24 
 & 25 Vict. c. 96 {Larceny Act), s. 116 ; 24 d 25 Vict. c. 99 {Coin Act), 
 s. 37. 
 
 The several cases just mentioned, when carefully considered, will 
 be foimd to be, not exceptions to, but rather illustrations of, the rule 
 above mentioned, namely, that nothing shall be given in evidence 
 which does not tend directly to the proof or disproof of the matter in 
 issue. In most of them, the evidence admitted tended directly to the 
 proof of the knowledge or intention of the defendant at the time of 
 the commission of the offence, and which was a material ingredient in 
 the crime imputed. In the case of rape above mentioned the evidence 
 tended to show the great improbability of any resistance upon the 
 part of the woman, and also that the woman was not entitled to credit 
 as a witness. As to evidence of the defendant's character, it can be 
 of avail only in doubtful cases : where the probabilities of the de- 
 fendant's guilt on the one side, and the probabilities of his innocence 
 on the other, are nearly equal, satisfactory testimony as to his general 
 good character for honesty or humanity may have the effect of 
 raising a well-founded presumption in the minds of the jiuors 
 that a man of such character could not have been the perpetrator 
 of the larceny or violence imputed to him ; and in this sense it 
 may be deemed evidence tending to the disproof of the matter in 
 issue. 
 
 Where the offence is stated in general terms in the indictment, as, 
 for instance, where the defendant is indicted as a common barretoror 
 common scold, or for keeping a common gambling-house, or bawdy- 
 house {see ante, p. 51), the prosecutor is allowed of course to give 
 evidence of all the particular facts which constitute the offence flras 
 generally stated in the indictment. 
 
( 219 ) 
 
 CHAPTER II. 
 
 THE MANNER OP PROVING THE MATTERS PUT IN ISSUE. 
 
 Evidence may be classed under three heads ; admissions or con- 
 fessions, presumptions, and proofs. These we shall consider fully in 
 the several sections of this chapter. But before we enter into a par- 
 ticular consideration of the subject, it may be necessary first to notice 
 one or two rules relating to evidence generally. 
 
 First, it is a general rule, that the best evidence the natm-e of the 
 case will admit of must be produced, if it be possible to be had ; if 
 it be not possible, then the next best evidence that can be had shall 
 be allowed. For if it appear that there is any better evidence existing 
 than that which is produced, the very non-production of it creates a 
 presumption that, if produced, it would have detected some falsehood 
 which at present is concealed. 3 Bl. Com. 368; Gilb. Ed. 16; JR. v. 
 James, 1 Show. 397 ; CartJi. 220 ; ffolt, 284 ; 1 Salk. 281 ; Williams 
 V. E. I. Company, 3 East, 192. Therefore, before secondary evi- 
 dence is offered, a foundation for it must first be laid, by proving that 
 better evidence cannot be obtained. Thus, for instance, the best 
 evidence of the contents of a deed or other written instrument is the 
 written instrument itself; secondary evidence, a copy, or parol 
 evidence of the contents of the original. Therefore, before a copy 
 of a written instrument, or parol evidence of its contents, can be 
 received as proof, the absence of the original instrument must be 
 accounted for, by proving that it is lost or destroyed, or that it is in 
 the possession of the opposite party. The declarations of the 
 opposite party, however, are always receivable in evidence agaiost 
 him, although they relate to the contents of a deed or other written 
 instrument, and even though its contents be directly in issue in the 
 suit. Slatterie v. Pooley, G M. & W. 664 : Howard v. Smith, 3 Scott's 
 N._ R. 51i. And this, it is apprehended, continues to be the rule of 
 law, although the parties to the record are now, by the 14 (& 15 Vict, 
 c. 99, competent and compellable to give evidence. 
 
 Records, however, are apparently an exception to this rule, for they 
 are proved by exemplications or other copies, in all cases, unless 
 they be records of the court in which they are to be produced, and 
 the matter of record form the gist of the pleading to be proved. See 
 1 Camp. 469 ; 2 Camp. 399 ; 1 C. <& P. 578. This exception has 
 been adopted from necessity; to require the record itself to be given 
 in evidence would be productive of great inconvenience, for it pro- 
 bably might be wanted for that purpose in several parts of the 
 kingdom at the same time ; besides, by removing it from the place 
 in which it was deposited, there would necessarily be great danger 
 of its being lost. Gilb. Ev. 7, 8. For the same reasons, journals of 
 the House of Lords or House of Commons, — a bill, answer, deposi- 
 tions, and decree in equity, in most cases, — libel, answer, depositions, 
 etc., in the ecclesiastical and admiralty courts in most cases, — the 
 rolls of a court baron, and other inferior courts — parish registers — 
 entries in corporation books, or the books of public companies, re- 
 
 l2 
 
220 Evidence. 
 
 lating to things public and general, may all be proved by copies. 
 See post, p. 239, et seq. 
 
 When the copy of a document (the document itself not being evi- 
 dence at common law) is made evidence by Act of Parliament, a copy 
 must be produced ; the original is not made admissible evidence by 
 implication. Burdon v. Richett, 2 Camp. 121, n. 
 
 Where a written instrument is in the hands of the opposite party, 
 it is necessary to serve him or his attorney with a notice to produce 
 it: and if he do not produce it at the trial, in pursuance of the notice, 
 then, upon proving the service of the notice, you will be allowed to 
 give secondary evidence of its contents. The rule in this respect is 
 the same in criminal as in civil cases ; Attorney-General v. Le Mer- 
 chant, 2 T. R. 201, n. ; and the notice must be served a reasonable 
 time before the trial. What is such reasonable time must of course 
 depend on the circumstances of each case. In general, when tlie 
 parties live at a distance from the assize town, notice must be served 
 before the commission day ; R. v. Ellicombe, 1 M. S Rob. 260 : see 
 Trist V. Johnson, Id. 259 ; but this will depend on the nature of the 
 document and the knowledge or probability of its being in the hands 
 of the parties at the assize town, or the contrary. See the cases col- 
 lected, Rose. Evid. at Nisi Prius, 13 {iXth ed.). But in cases where 
 the nature of the pleading gives sufficient notice to the defendant of 
 the subject of inquiry, so that he may prepare himself to produce 
 the written instrument, if necessary for his defence, a notice to pro- 
 duce it is not required ; thus, for instance, it has been holden that, in 
 trover for a bond, the plaintiff may give parol evidence of it, to sup- 
 port the general description of it in the declaration, without having 
 given the defendant previous notice to produce it. How v. Hall, 14 
 East, 274. So, upon an indictment for stealing a bill of exchange, 
 pai'ol evidence of it was admitted, without a notice to produce it. 
 R. V. Aichles, 1 Leach, 330. So, upon an indictment for adminis- 
 tering an unlawful oath, where it appeared that the defendant read 
 the oath from a paper, parol evidence of what the defendant, in fact, 
 said, was holden to be sufficient, without giving him notice to produce 
 the paper. R. v. Moor, 6 East, 419, «., 421, n. So, where a seditions 
 meeting came to certain resolutions, and the defendant, who was 
 chairman, gave a copy of these resolutions to another person, it was 
 holden that this copy might be given in evidence, without a notice.to 
 produce the original. R. v. Hunt, 3 B.dA Id. 566. In the same case 
 it was also holden, that it was not necessary to produce or account 
 for banners bearing certain inscriptions, etc., exhibited at such meet- 
 ing, but that parol evidence of such matters, by eye-witnesses, was 
 perfectly admissible to show the general character and intention of 
 the assembly. But upon an indictment for setting fire to a house, 
 with intent to defraud an insurance office, secondary evidence of the 
 policy of insurance cannot be given, without proof of due notice to pro- 
 duce the original. R. v. Kitson, Dears. 187; 22 L. J. (if. C.) 118. 
 And upon an indictment for perjury in falsely swearing that there was 
 no draft of a statutory declaration which had been prepared by the 
 defendant, the materiality of the existence of such draft turned upon 
 its contents and the fact of certain alterations Having been made in 
 it. Parol evidence of the contents of the draft and of the alterations 
 made in it was held inadmissible, no notice to produce such draft 
 having been given to the defendant. R. v. Elworthy, L. R., 1 C- ^■ 
 R. 103 ; 37 L. J. {M. C.) 3. On the trial of an indictment for steal- 
 ing a ring which had not been recovered, Chamnell, B., is said to have 
 refused to allow evidence to be given of the contents of an inscrip- 
 
Evidence. 221 
 
 tion upon it, as no notice had been given to the prisoner to produce 
 the ring, although his lordship admitted evidence of the fact that the 
 ring bore some inscription. R. v. Farr, 4^ F. & F. 336. Sed quoere, 
 see R. y. Clube, 3 Jur. (N. S.) 698, contra. 
 
 Secondly, it is a general rule, that hearsay is no evidence ; and for 
 two reasons: what the other person said was not upon oath; and the 
 party who is to be affected by it had no opportunity of cross-examin- 
 ing him. Gilb. Ev. 149. To this rule, however, there are some 
 exceptions, arising from necessity: — 1. Hearsay is admissible to 
 prove the death of a person beyond sea. Bull. N. P. 294: Doe v. 
 Griffin, 15 East, 293. 2. Hearsay is good evidence to prove a pre- 
 scription, Bull. N. P. 296, or custom; Nicholls v. Parher, 14 East, 
 331, n. : Doe v. Sisson, 12 East, 62 : see R. v. Atitrohus, 2 A. & E. 
 788: Pirn v. Currell, 6 M. <& W. 234; and for this pui-pose old wit- 
 nesses are usually called to prove what they heard in their youth 
 from old persons since deceased on the subject. 3. What a witness 
 has been heard to say at another time may be given in evidence, in 
 order to invalidate or confirm the testimony he gives in court. 
 2 Hawk. c. 46, «. 14; Gilb. En. 150. 4. When hearsay is introduced, 
 not as a medium of proof to establish a distinct fact, but as being 
 part of the transaction in question, it is admissible. R. v. Gordon, 
 21 St. Tr. 535. So declarations made by an agent acting at the time 
 within the scope of his authority, are receivable against the principal. 
 See R. V. Sail, 8 C. (& P. 358. Upon the same principle, the decla- 
 rations of a person robbed, or a woman ravished, as to the facts, 
 made immediately afterwards, are evidence to confirm them, though 
 the particulars of their statement cannot be inquired into. See R. v. 
 Wink, 6 C. & P. 397: R. v. Brazier, 1 East, P. C. 444: R. v. Meg- 
 son, 9 C.(& P. 420: R. v. Nicholas, 2 C. d K. 246. And on an in- 
 dictment for manslaughter, a statement, made by the deceased 
 immediately after he was knocked down, as to how the accident 
 happened, has been held admissible. R. v. Foster, & C. <& P. 325, 
 per Parle, J., and Patteson, J., and Gurnet/, B. 5. Whenever the 
 bodily or mental feelings of a person are material to be proved, the 
 xtsual expressions of such feelings, made at the time in question, are 
 admissible. Tayl. Ev. 509 (ith ed.) Thus the representations by 
 a sick person of the nature and effects of the malady under which he 
 is labouring are receivable. R. v. Blandy, 18 How. St. Tr. 1135 — 
 1138. In Witt V. Witt, 3 Swab. & Trist. 143 ; 32 L. J. {Proh. M. & A.) 
 179, however, Sir C. Cresswell rejected letters written by a patient to 
 his medical man describing his symptoms. His lordship observed 
 that he would not set a precedent for the admission of written com- 
 munications to a medical man. On a trial for murder by poisoning, 
 statements made by the deceased, shortly before he took the poison, 
 are admissible to prove the state of his health at that time. R. v. John- 
 son, 2C.&K. 354: R. v. Blandy, ubi supra. So, on an indictment for 
 assault, what a man has said about himself to his surgeon is admissible 
 to show what he suffered by reason of the assault. R. v. Guttridge, 9 
 C. db P. 472. So, on an indictment for murder alleged to have been 
 committed by withholding proper food from a child, a complaint by 
 the child of being hungry is admissible. R. v. Conde, 10 (Jox, 547. 
 6. Upon an indictment for murder or manslaughter, the dying decla- 
 rations of the deceased are receivable in evidence, if it appears to 
 the satisfaction of the judge (R. v. John, 1 East, P. C. 357, 358: 
 R. V. Welboum, Id. 358, 360: R. v. HucTcs, 1 Starlc. 523) that the 
 deceased was conscious of his being in a dying state at the time he 
 made them. R. v. Woodcoch, 1 Leach, 502: R. v. Welboum, 1 East, 
 
222 Evidence. 
 
 P. C. 358: JR. v. Christie, Car. Sup. 202: R. v. Van ButcMl, 3 C. <£• 
 P. 629: R. V. Forester, i F. <& P. 857, and was sensible of his awful 
 situation; R. v. PiVce, 3 C. <& P. 598: i?. v. Crochett, i C. <& P. 544: 
 i?. V. Hayward, ^ C.&P. 157: i?. v. Spilsbury, 1 C.&P. 187: 5. v. 
 PeWans, 2 7lfoo(^. G C. 135; 2 C. & P. 395: i2. v. flbweZ?, 1 Dm. 1; 
 1 C.& E. 689: iJ. v. Machay, 11 Cok, 148; even though he did not 
 actually easpress any apprehension of danger, 1 East, P. C. 385: R. v. 
 Dingier, 2 Leach, 561, and his death did not ensue until a consider- 
 able time after the declarations were made. R. v. Moseley, 1 Mood. 
 C. C. 97: R. V. Bemadotti, 11 Cos;, 316: s«e i?. v. Reamey, Dears. & 
 B. 151; 26 L. J. {M. C.) 48. There must be no hope whatever of 
 recovery in the mind of the declarant, he must entertain a settled, 
 hopeless expectation of death. R. v. Jenlcins, L. R., 1 C. C. R. 187; 
 38 L. J. (M. C.) 82: R. v. Peel, 1 F. & F, 21. It must be shown 
 that the deceased at the time he made the statement was under the 
 impression that death was impending, not merely that he had re- 
 ceived an injury from which death must ensue, but that, as the 
 popular phrase goes, he then believed he was at the point of death. , 
 R. V. ForesUr, A F. d; F. 857; 10 Cox, 368. There must be an ex- 
 pectation of impending and almost immediate death, from causes 
 then operating. R. v. Jenkins, L. R., 1 C. C. R. 187, 193; 38 L.J. 
 [M. C.) 82, 86, per Byles, J. See also the judgments of WigJitmrn 
 and Willes, J J., in R. v. Reamey, Dears. & B. 151; 26 L. J. (M. 0.) 
 43. Where the party expressed an opinion that she should not 
 recover, and made a declaration at that time; but afterwards, on 
 the same day, asked a person whether he thought she would " rise 
 again;" it was held that this showed such a hope of recovery as 
 rendered the previous declaration inadmissible. R. v. Fagent, 7 C, 
 & P. 238: see R. v. Megson, d C. <& P. 418. And where the declar 
 ration was reduced into writing, and in it the declarant was repre- 
 sented in the first instance as saying, " I have made the above state- 
 . ment with the fear of death before me, and with no hope of my 
 recovery," but on its being read over to her, and on her being 
 asked to correct any mistake, she said, " no hope at present of my 
 recovery," and the writer then inserted the words " at present," it 
 was held that this declaration was not admissible in evidence, as it 
 did not appear to have been made under a settled hopeless expecta- 
 tion of death. R. v. Jenkins, L. R., 1 C. C. R. 187; 38 L. J. (M. C.) 
 82. If the declarant believed himself to be in a dying state when 
 he made the declaration, the fact that the surgeon thought him likely 
 to recover will not render it inadmissible. Per Willes, J., S. v. 
 Peel, 2 F. d;F. 21: R. v. Whitworth, 1 F. & F. 382. The dying 
 declarations of a boy ten years old have been held admissible. B. v. 
 Perkins, 2 Mood. C. C. 135; 'dC.&P. 395. These dying declarations 
 are only admissible whei-e the death of the deceased is the subject 
 of the charge, and the cause of the death the subject of the dying 
 declaration. R. v. Mead, 2B.& C. 605, per Abbott, C. J. There- 
 fore, upon an indictment for perjury, a dying declaration is not 
 admissible to disprove the fact upon which the perjury is assigned. 
 Id., A.D. & R. 120; 2 B. & C. 605. So, upon an indictment for 
 administering savin or using instruments to procure abortion, or for 
 usiiig instruments with intent to procure her miscai'riage, the 
 woman's dying declarations are not admissible, though they relate 
 to the cause of her death. R. v. Hutchinson, 2 B. d C. 608, n.: B. 
 v. Hind, Bell, 263; 29 L. J. (M. C.) 147. And where a man was 
 robbed, and died before the trial of the person charged with the 
 robbery, Bolland, B,, refused to receive his dying declarationB re- 
 
Admissions and Confessions. 223 
 
 specting the robbery, holding that such declarations were evidence 
 only in cases where the death of the party is the subject of the 
 inquiry. S. v. Lloyd, A C. dt P. 233. But on an indictment for the 
 murder, of A. by poison, which was also taken by B., who died in 
 consequence, the dying declarations of B. were held admissible. 
 B. V. Baker, 2 M. & Bob. 63. On an indictment for manslaughter 
 the declaration of the deceased at a time when she believed herself 
 dying was admitted in evidence, although it related generally to the 
 conduct of the prisoner, and not to the particular violence. M. v. 
 Murton, % P. & F. 492. The dying declarations of an accomplice 
 are holden admissible in evidence, B. v. TincMer, 1 East, P. C. 354, 
 356, provided he were at the time such a person as would be com- 
 petent as a witness. B. v. Drummond, 1 East, P. C. 353 ; 1 Leach, 
 378. And as dying declarations are only admissible where the 
 death of the deceased is the subject of the charge {B. v. Mead, ubi 
 supra), it would seem that the only case in which the dying declara- 
 tion of an accomplice can be given in evidence against the prisoner, 
 is where the prisoner is charged with assisting in the self-destruction 
 of the accomplice. 3 Buss. C. S M., hy Greaves, 268 (4iA «Z.). 
 Dying declarations infavoar of the party charged with the death are 
 admissible in evidence, as they may have an influence on the amount 
 of punishment. B. v. Scaife, \ M. & Boh. 551. Where two such 
 declarations were made, the second of which alone was reduced into 
 writing in the presence of a magistrate, this written declaration not 
 being forthcoming at the trial, the judges held that, in the absence 
 of it, the first declaration was admissible evidence. B. v. Season, 
 1 Str. 499. But where a declaration in articulo mortis was reduced 
 into writing, and signed by the party, the judge refused to receive 
 either a copy of the paper or parol evidence of the declaration. B. 
 V. Gay, 1 C. & P. 230. It is no objection against such a declaration, 
 that it was made in answer to questions put to the deceased, and not 
 a continuous statement made by him, B. v. Fagent, 1 C. & P. 238, 
 nor that it was made in answer to leading questions. B. v. Smith, 
 L. S a 607; 34 L. J. (M. C.) 153. 
 
 Having thus noticed these two general rules, we shall now proceed 
 to consider the remainder of this part of our subject, under the fol- 
 lowing heads : — 
 
 Sect. 1. Admissions and Confessions, p. 223. 
 
 2. Presumptions, p. 235. 
 
 3. Written Evidence, p. 239. 
 
 4. Parol Evidence, p. 268. 
 
 Sect. 1. 
 admissions and confessions. 
 
 In what cases.'] — Admissions and confessions are of four kinds: — 
 
 1. Where the defendant in open court confesses that he is guilty 
 •of the offence of which he is charged in the indictment. 
 
 2. Where the defendant, upon an indictment for a misdemeanor, 
 yields himself to the Queen's mercy, and desires to submit to a small 
 fine : which submission the com-t may accept, if they think fit, with- 
 out putting the defendant to a direct confession. 2 Hawlc. c. 31, s. 3. 
 
224 Admissions and Confessions. 
 
 3. Where the defendant, upon liis examination before justices ol 
 the peace, on a charge of felony or misdemeanor, under stat. 11 d 12 
 Vict. c. 42, ss. 17, 18, admits either his guilt or any fact which may 
 tend to prove it at the trial. 
 
 4. "Where the defendant makes an admission or confession of his 
 guilt, or of any fact which may tend to the proof of it, to any other 
 person: or assents to what is said in his presence and hearing, 
 relative to a fact within his knowledge. 
 
 All these several species of confession, in order to be admissible, 
 must be free and voluntary. And in the case of a confession before 
 a magistrate or other person, unless it be shown affirmatively on the 
 part of the prosecution that it was made without the defendant's 
 being induced to make it by any promise of favoui-, or by menaces, 
 or undue terror, it shall not be received in evidence against him. 
 2 Sale, 285; B. v. WarringJiam, 2 Den. 447. If it be said to the 
 defendant that it will be better or worse for him if he do or do not 
 confess; 2 East, P. C. 659; or if a confession be procured by a 
 threat to take the defendant before a magistrate, if he do not give a 
 more satisfactory account; H. v. Thompson, 1 Leach, 291 ; or to send 
 for a constable for that purpose, R. v. Richards, 5 G. S P. 318: iJ. v. 
 Seam, C. & Mar. 109; or by saying, " Tell me where the things are, 
 and I will be favourable to you;" R. v. Cass, 1 Leach, 293, n.; or, 
 " You had better tell all you know;" R. v. Kingston, 4: C. <& P. 387; 
 or, " You had better tell where you got the property;" R. v. Drnm, 
 i C. S P. 543; or, " You had better split, and not suffer for aU of 
 them;" R. v. Thomas, 6C.(& P. 353; or, " It would have been better 
 if you had told at first;" R. v. Walkky, 6 C. & P. 175; or, "I 
 should be obliged to you if you would tell us what you know about 
 it; if you will not, of com'se we can do nothing;" R. v. Partridge, 7 
 C. & P. 551; or, " It will be best for you if you wOl tell how it was 
 transacted;" R. v. Warringham, 2 Den. 447; — the confession will not 
 be admissible. Where the prosecutor asked the defendant for the 
 money which he had taken, and, before it was produced, said, " I 
 only want my money, and if you give me that you may go to the 
 devil if you please," upon which the defendant took part of the money 
 from his pocket, and said that was all he had left, a majority of the 
 judges held that the evidence was inadmissible. R. v. Jones, R. & 
 R. 152: R. V. Parratt, i C. d P. 670. And where a constable said 
 to the prisoner who was suspected of the murder of her child, that 
 " if she did not tell him where it was she might get herself into 
 trouble, and that it would be the worse for her," a statement there- 
 upon made by her to the constable was rejected. R. v. Cola/, 10 
 Cox, 536. But a statement made to a constable, after he had told 
 the defendant the nature of the charge against him, and that he need 
 not say anything to criminate himself, but that what he did say 
 would be taken down, and used as evidence against him, was held 
 to be admissible. R. v. Baldry, 2 Den. 430; 21 L. J. {M. C.) 130: 
 overruling R. v. Drew, 8 C. <& P. 140: R. v. Morton, 1 M. & Eoh. 
 514: R. V. Farley, 1 Cox, 76: and R. v. Sarris, Id. 106. A con- 
 fession, made with a view, and under a hope, of being thereby per- 
 mitted to turn Queen's evidence, or of obtaining a pardon or reward, 
 has been holden inadmissible. R. v. Sail, 2 Leach, 559. And it is 
 clearly so where such hope is the reasonable result of a communica- 
 tion from, or the conduct of, a person in authority. R. v. Oillis, 11 
 Cox, 69. See R. v. Bailey, 2 Stark. Ev. 53 : R. v. Boswell, C. & Mar. 
 584. To exclude a confession made under the influence of a promise 
 or threat, the promise and threat must be of a description which may 
 
Admissions and Confessions. 225 
 
 be presumed to have such an effect on the mind of the defendant 
 as to induce him to confess ; and therefore an exhortation, admoni- 
 tion, promise, or thi-eat, proceeding at a prior time from some one 
 who has no concern in the apprehension, prosecution, or examination 
 of the prisoner, but interferes without any authority, will not be 
 sufficient to render a confession inadmissible. R. v. Rowe, R. & R. 
 153 : R. V. Hardwieh, 1 Pliil. Ev. 410 : R. v. GiUons, 1 C. (6 P. 97: 
 R. V. Tyler, Id. 129 : R. v. Clewes, iC.<£P. 221. It seems that there 
 had been a difference of opinion among the judges on this point — 
 whether a confession made to a person who has no authority, after an 
 inducement held out by that person, is receivable or not. In a 
 recent case, however, it was stated that it is the opinion of the 
 judges that evidence of any confession is receivable, unless there has 
 been some inducement held out by some person in authority, and 
 that if a person not in any office or authority held out to the accused 
 party an inducement to confess, this will not exclude a confession 
 made to that party. R. v. Sarah Taylor, 8 C. S P. 733. But where 
 such a person held out an inducement in the presence of the prose- 
 cutor's wife, who expressed no dissent, the confession was held not 
 to be receivable. Id. : R. v. Spencer, 7 C. & P. 116 : see R. v. Hewett, 
 C. & Mar. 534 : R. v. Gamer, 1 Den. 329 ■ i C. & K. 920 ; 18 L. J. 
 {M. C.) 1: R. y. LucJehurst, Bears. 245 ; 23 L. J. {M. C.) 18. So, 
 where the prisoner was taken by the constable to an inn, and the 
 innkeeper, in the constable's hearing, held out an inducement to 
 him to confess, and the prisoner, in the constable's hearing, made a 
 confession to the innkeeper, which the constable was called to prove, 
 Alderson, B., thought the evidence inadmissible. R. v. Pountney, 7 
 a & p. 302. And see R. v. Dunn, i C. <& P. 543 : R. v. Slaughter, 
 Id. 644, n. : R. v. Laugher, 2 C. & K. 225. Where one of two de- 
 fendants charged with larceny said to the other (a constable, and the 
 owner of the property, W., being present), " You had better tell 
 Mr. W. the truth," neither the policeman nor W. saying anything, a 
 confession made thereupon by the other defendant was held admis- 
 sible. R. V. Parher, L. & C. 42 ; 30 L. J. (M. C.) 144. Where a 
 girl, being apprehended for the mui-der of her child, was left by the 
 constable in the custody of a woman, who told her she had better tell 
 the truth, otherwise it would lie upon her and the man would go free, 
 upon whichshe made a confession : Parke, J., and Taunton, J., held 
 this confession not receivable, as it was made in consequence of an 
 inducement held out to the prisoner by a person who had her in cus- 
 tody. R. V. Enoch, 5 C.&P. 639. A woman in custody on a charge 
 of murder was placed in a room alone with E. to be searched. E. 
 was a "searcher" of female prisoners, but had no other duties or 
 authority in the gaol. Whilst the search was being made, the pri- 
 soner said, " If I tell the truth, shall I be hung?" to which E. an- 
 swered, " No, nonsense, you will not be hung." It was held that a 
 statement made by the prisoner to E. immediately afterwards was 
 not receivable. R. v. Windsor, i F. & F. 361. And confessions ob- 
 tained from a servant through hopes and threats held out by the wife 
 or by the relations and neighbours of her master and prosecutor (or, 
 in the case of an offence committed against several persons in part- 
 nership, by the wife, etc., of any of them, R. v. Warringham, 2 Den. 
 447), have been held inadmissible by all the judges. R. v. Simpson, 
 1 Mood. C. C. 410 : R. v. Upchv/rch, Id. 466. This, however„does not 
 apply to a case where the charge against the servant has no relation 
 to the persons or property of the master or his family: e. g., to a case 
 
 l5 
 
226 Admissions and Confessions. 
 
 of child murder or concealment of birth. R. v. Moore, 2 Dm. 522 ; 
 21 L. J. (M. C.) 199. The inducement must refer to a temporal 
 benefit ; for hopes which are referable to a future state merely are 
 not within the principle which excludes confessions obtained by- 
 improper influence. E. v. Gilham, R. S M. C. C. 186. So, where a 
 prisoner under fourteen years of age, charged with murder, was told 
 by a man, who was present when he was apprehended, " Now, kneel 
 down, I am going to ask you a very serious question, and I hope 
 you will tell me the truth, in the presence of the Almighty," and the 
 prisoner, in consequence, made a statement, this was held (strictly) 
 admissible. R. v. Wild, 1 Mood. C. C. 452. But where a constable, 
 after having asked the prisoner what he had done with the stolen 
 property, said, " You had better not add a lie to the crime of theft," 
 Gaselee, J., refused to receive a statement thereupon made by the 
 prisoner in evidence. R. v. Shepherd, 7 C. S P. 579 ; sed qucere. 
 The only proper question is, whether the inducement held out to the 
 prisoner was calculated to make his confession an untrue one : if not, 
 it will be admissible. Thus, where a prisoner asked of a witness 
 with whom he was in conversation, whether he had better confess, 
 and the witness replied that he had better not confess, but he might 
 say what he had to say to him, for it should go no further, a state- 
 ment thereupon made by the prisoner was held admissible. R. v. 
 Thomas, 7 C. & P. 345. So where, a prisoner being taken before a 
 magistrate on a charge of forgery, the prosecutor said, in the hearing 
 of the prisoner, that he considered him the tool of G-., and the magis- 
 trate then told the prisoner to be sure to tell the truth, and upon 
 this the prisoner made a statement, this was held receivable. R. v. 
 Court, 7 C. c6 P. 486. So also, where the magistrate, after the exa- 
 mination of the witnesses, said to the prisoner, " Be sure you say 
 nothing but the truth, or it will be taken against you, and may be 
 given in evidence against you at your trial." R. v. Holmes, 1 C.d 
 K. 248. So where, the defendant being in custody on a charge of 
 setting fire to her master's farm-building, her master's married 
 daughter said to her, " I am very sorry for you ; you ought to have 
 known better; tell me the truth, whether you did it or no;" the 
 defendant replied, " I am innocent ;" whereupon the other said, 
 " Don't run your soul into more sin, but tell the truth ;" a confession 
 thereupon made by the defendant was held admissible. R. v. 
 Sleeman, Dears. 249 ; 23 L. J. {M. C.) 19. So where one of the 
 prisoner's employers, having called him up into his private room, 
 said, " I think it right that I should tell you that, besides being in 
 the presence of my brother and myself, you are in the presence of 
 two police officers ; and I should advise you that, to any questions 
 that may be put to you, you will answer truthfully, so thai if yon 
 have committed a fault you may not add to it hy stating what is untrue; 
 and having shown a letter to him, which he denied having written, 
 added, " Tate care ; we know more than you think we know," and 
 the prisoner thereupon made a confession ; it was held that such 
 confession was admissible. R, v. Jarvis, L. R., 1 C. C. R. 96 ; 37 
 L. J. (M. C.) 1. Where a prisoner is willing to make a statement, 
 it is the magistrate's duty to receive it, but he ought, before doing 
 so, entirely to get rid of any impression that may have been on the 
 prisoner's mind, that the statement maybe used for his own benefit; 
 and he ought also to be told, that what he thinks fit to say will be 
 taken down, and may be used against him on his trial. See B. v. 
 Arnold, % C.& P. 621. The mode of doing this is now prescribed 
 in terms by the stat. 11 & 12 Vict. c. 42, s. 18, infra. A statement 
 
Admissions and Confessions. 227 
 
 made by a prisoner when he is drunk is admissible, even though, as 
 it seems, the liquor was given to him in the hope that he would 
 make some admissions. R. v. Spilsbury, 7 C. & P. 187. A constable 
 having arrested the prisoner proceeded to search his house, and 
 having found the prisoner's coat, which was wet, he asked the pri- 
 soner why he had washed his coat. On the trial of the prisoner the 
 prosecution proposed to give in evidence the prisoner's answer to this 
 question. The chief baron ruled that the answer could not be 
 given in evidence, saying, that where a constable arrests a person, 
 he ought not to ask questions. R. v. Bodkin, 9 Cox, 403, West- 
 meath Summer Assizes, 1863. But see R. v. Thornton, 1 Mood. C. C. 
 27 : R. V. Kmr, 8 C. S P. 176, contra. And it has recently been 
 decided by the Irish Com-t of Criminal Appeal that answers given 
 by a prisoner to a constable who has taken him into custody, and 
 has given him no caution, are admissible in evidence against the 
 prisoner on his trial. R. v. Johnston, 15 /;■. ^ Com. Law R. 60. 
 
 It is no objection to the admissibility of a confession, that it was 
 made under a mistaken supposition that some of the defendant's 
 accomplices were in custody, even though it were created by artifice, 
 with a view to obtain the confession. R. v. Bailey, 1 Phil. Ev. 104. 
 And a letter given by a defendant to the gaoler to put into the post 
 is evidence against him. R. v. Derrington, 2 C. & P. 418. If the^ 
 promise or menace, etc., take place previously to the prisoner's being 
 brought before the magistrate, the court will, in general, refuse to 
 admit the confession to be given in evidence, unless it appear that 
 the prisoner was undeceived by the magistrate, and cautioned by 
 him not to expect the favour, or not to regard the menaces held out 
 to him ; 2 East, P. C. 658 ; and see R. v. Lingate, 1 Phil. Ev. 414 : 
 R. V. Arnold, 8 C. d P. 621. But where (before the stat. 11 S 12 
 Vict. e. 42) a defendant, having been told by a constable that he 
 might do himself some good by confessing, afterwards asked the 
 magistrate if it would benefit him to confess, and the magistrate 
 saying he could not say it would, the defendant then declined to 
 confess, but afterwards, when going to prison, made a confession to 
 the constable, the judges held the confession to be admissible, because 
 the answer of the magistrate was suiiicient to remove any expecta- 
 tion which the constable might have caused. R. v. Rosier, 2 Phil. 
 Ev. 105. See R. v. Green, h C. & P. 312 : R. v. Clewes, 4. C. & P. 
 221 : R. V. Ricliards, 5 C.& P. 318 : R. v. Howes, 6 C. S P. 404 : 
 R. V. Dingley, 1 C. <& K. 637. The only questions in these cases 
 really are, — was any promise of favour, or any menace or undue 
 terror made use of, to induce the prisoner to confess ? and if so, was 
 the prisoner induced by such promise or menace, etc., to make the 
 confession attempted to be given in evidence ? If the judge be of 
 opinion in the affirmative upon both these questions, he will reject 
 the evidence. If, on the contrary, it appears to him, from the cir- 
 cumstances, that, although such promises or menaces were held out, 
 they did not operate upon the mind of the prisoner, but that his con- 
 fession was voluntary notwithstanding, and he was not biassed by 
 such impression in making it, the judge will admit the evidence. 
 See 2 East, P. C. 658 : R. v. White, 1 Phil. Ev. 406 : R. v. Nute, 
 1 Bum's J. 973 (30th ed.), citing 1 Bum's J. 688 (24<A ed.). 
 
 The stat. 11 S 12 Vict. c. 42 has now provided (s. 18) that, after 
 the examinations of all the witnesses on the part of the prosecution 
 of a person brought before any justice or justices of the peace, 
 charged with any indictable offence, shall have been completed, " the 
 
228 Admissions and Confessions. 
 
 justice of the peace or one of the justices by or before whom such 
 examination shall have been so completed as aforesaid shall, without 
 requiring the attendance of the witnesses, read or cause to be read to 
 the accused the depositions taken against him, and shall say to hun 
 these words, or words to the like effect: ' Having heard the evidence, 
 do you wish to say anything in answer to the charge? you are not 
 obliged to say anything unless you desire to do so, but whatever you 
 say will be taken down in writing, and may be given in evidence 
 against you upon your trial ;' and whatever the prisoner shall then 
 say in answer thereto shall be taken down in writing (N.) and read 
 over to him, and shall be signed by the said justice or justices, and 
 kept with the depositions of the witnesses, and shall be transmitted 
 with them as hereinafter mentioned, and afterwards upon the trial 
 of the said accused person the same may, if necessary, be given in 
 evidence against him, without further proof thereof, unless it shall 
 be proved that the justice or justices purporting to sign the same did 
 not in fact sign the- same : provided always, that the said justice or 
 justices, before such accused person shall make any statement, shall 
 state to him, and give him clearly to understand, that he has nothing 
 to hope from any promise of favour, and nothing to fear from any 
 threat which may have been holden out to him to induce him to 
 make any admission or confession of his guilt, but that whatever he 
 shall then say may be given in evidence agaiust him upon his trial, 
 notwithstanding such promise or threat ; provided nevertheless, that 
 nothing herein enacted or contained shall prevent the prosecutor in 
 any case from giving in evidence any admission or confession or 
 other statement of the person accused or charged, made at any time, 
 which by law would be admissible as evidence against such person." 
 It has been held that the second caution contained in the above 
 proviso is at all events not necessary unless where it appears that 
 some inducement or threat had previously been held out to the accused. 
 R. v. Sansome, 1 Den. 545 ; 19 L. J. (M. C.) 143. The 28th section 
 of the statute declares, that the forms given in the schedule are to 
 be deemed good, valid, and sufficient in law. The form (N.) of the 
 prisoner's statement before the magistrate contains the first caution, 
 but not the second. And it has accordingly been held that, if the 
 prisoner's statement be returned purporting to be signed by the 
 magistrate, and bearing on the face of it the first caution, it is admis- 
 sible, by virtue of section 18, without further proof. Id.; see B, v. 
 Bond, 1 Den. 517 ; 19 L. J. (M. C.) 138. But it will always be pru- 
 dent in the magistrate to give the prisoner the second caution, as 
 being the only course which will preclude all possibility of question 
 as to the admissibility of his statement ; for as it has not been de- 
 cided whether that caution is not absolutely requisite when a pre- 
 vious inducement or threat has been held out, and as the magistrate 
 can never be certain whether such previous inducement or threat 
 has or has not been held out, a perplexing question might arise as to 
 the sufficiency of the first caution to remove the effect on the pri- 
 soner's mind of such inducement or threat, should it turn out in fact 
 that it had been held out. See per Erie, J., R. v. Scmsome,m^a- 
 Where the prisoner, having been once examined before the justice, 
 and cautioned by him in the ms^nner prescribed by this statute, made 
 a statement, which was taken down in writing but not signed by him 
 or by the justice ; he was then remanded, and on a subsequent day 
 was brought again before the justice ; no new witnesses were then 
 examined, but the prisoner's attorney put some questions to a witness 
 
Admissions and Confessions. 229 
 
 who had been examined before : the prisoner was again cautioned, 
 but declined to make any further statement : the statement made by 
 him on the first occasion was held admissible against him on his 
 trial. R. V. Bond, supra; see B. v. Stripp, Dears. 648; 25 L. J. 
 {M. C.) 109. 
 
 Examinations of a prisoner taken upon oath before justices respect- 
 ing a criminal charge then made against him are not admissible ; 1 
 Sale, 585 ; and where an examination in writing purported to have 
 been taken upon oath, Le Blanc, J., refused to admit parol evidence 
 to show that, at the time of his examination, the defendant was not 
 sworn. R. v. Smith, 1 Stark. 242 : see also R. v. Rivers, 7 C <£• P. 
 177 : R. V. PiTcesley, 9 C.(& P. 124. In a modern case, where the pri- 
 soner was sworn by mistake, but, as soon as the mistake was dis- 
 covered, the deposition was destroyed, his subsequent statement was 
 received in evidence. R. v. Webb, 4, C. <& P. 564. And where 
 a statement made by the prisoner upon oath, at a time when he 
 was not under suspicion, was tendered in evidence, Vaughan, B., 
 received it. R. v. Tubby, b C. & P. 630. So also, where A. was 
 charged with forgery, and B. was examined on oath before the magis- 
 trate as a witness against A., and after this B. was himself charged 
 with a different forgery, Parjce, J., received the deposition of B. as 
 evidence against him on his trial for the forgery, notwithstanding 
 that it was taken on oath. R. v. Haworth, AC.dP. 254. In a sub- 
 sequent case, however, where the prisoner and others were examined 
 upon oath, no specific charge being at the time made against any 
 person, but, in the result, the prisoner was committed for the offence, 
 Gnrney, B., refused to receive in evidence what the prisoner had 
 stated upon that occasion. R. v. Lewis, Q C. & P. 161. But in a 
 still more recent case, Cockhurn, C. J., admitted as evidence against 
 a prisoner a deposition made by him before a justice while under 
 examination as a witness, another person being at that time charged 
 with the crime. R. v. Chidley, 8 Cox, 365. How far statements 
 made by a prisoner upon oath, on a coroner's inquest relating 
 to the same transaction, are admissible, appears to be involved in 
 some doubt. In one case, Alderson, B., refused to receive in evi- 
 dence, on an indictment for murder, a statement made by the prisoner 
 before the coroner, which was taken down in writing, and pui-ported 
 to be taken on oath, and would not allow evidence to be given to 
 show that in fact it was not taken on oath. R. v. Wheeley, 8 C. & 
 P. 250. In a subsequent case, on an indictment for rape, statements 
 voluntarily made upon oath, at the inquest held on the party alleged 
 to have been ravished, were received in evidence ; R. v. Owen, 9 C. 
 <fi P. 83; but afterwards, on the trial of the same prisoners for the 
 murder of the same person, the same depositions were rejected. R. 
 v. Owen, 9 C. <& P. 238. On the other hand, in R. v. Haworth, 
 Greenw. Coll. Stat. 137, Parke, B., received in evidence, on an indict- 
 ment for murder, a deposition made by the prisoner on oath as a 
 witness before the coroner : and in R. v. SanA/s, 2 Mood. C. C. 229 ; 
 C. & Mar. 345, Erskine, J., received similar evidence, and reserved 
 the pointj but the prisoner was acquitted. And in a case which 
 occurred in 1861, where the prisoner was indicted for administering 
 poison with intent to murder, a statement made by her upon oath at 
 the inquest held on the deceased, no charge having then been made 
 against her, was admitted in evidence by Lord Campbell, C. J., after 
 consulting Parke, B., and the prisoner was convicted and executed. 
 3 Russ. C. (& M., by Greaves, 418 {Uh ed.). So also, so recently as 
 
230 Admissions and Confessions. 
 
 1866, Martin, B., after consulting with Willes, J., on a trial for man- 
 slaughter, admitted as evidence against the prisoner his deposition 
 on oath taken by the coroner upon the inquest held on the deceased. 
 -B. V. Bateman, A F.& F. 1068. The examination of a person taken 
 on oath before commissioners of bankruptcy, he having been cau- 
 tioned, and allowed to elect what questions he would answer, was 
 held admissible against him on a charge of forgeiy. R. v. Wheatery 
 2 Mood. C. C. 45. So, where a bankrupt was examined touching a 
 matter not relating to his trade, dealings, or estate, and did not refise 
 to answer on the ground that the answers would tend to criminate 
 him, but answered without objection, his answers were held volun- 
 tary, and his examination admissible against him on a criminal 
 charge. B. v. Sloggett, Dears. 656 ; 25 L. J. (M. C.) 93. And it 
 has since been held, that where a bankrupt was examined under 
 sect. 117 of the Bankruptcy Act, 12 c5 13 Vict. c. 106 (now repealed, 
 but analogous provisions to which are contained in sects. 96, 97 of 
 the Bankruptcy Act, 1869, 32 & 33 Vict. c. 71), he was bound to 
 answer all questions touching matters relating to his trade, deal- 
 ings, or estate, or which might tend to disclose any secret grant, 
 conveyance, or concealment of his lands, tenements, goods, money, 
 or debts, although his answers may criminate himself; and such 
 answers, though they do tend to criminate him, may be given 
 in evidence against him on a criminal charge. iJ. v. Scott, Dean. 
 & B. 47 ; 25 L. J. (if. C.) 128 : R. v. Cross, Dears. SB. 68 : 
 B. V. BoUnson, L. B., 1 C. C. B. 80; 36 L. J.(M. C.) 78. So, 
 the answer of the defendant in a suit in equity, instituted against 
 him by the prosecutor, is admissible on an indictment agamst 
 him, B. V. Goldshede, 1 C. & K. 657, except in cases where it is 
 otherwise provided by statute ; see 24 & 25 Vict. c. 96, s. 86, post. 
 But on an indictment against a bankrupt for concealing his effects, 
 where it was proposed to prove the petitioning creditor's debt by 
 putting in the bankrupt's balance-sheet, delivered in upon oath, 
 Alderson, B., and Patteson, J., held that it was not receivable for that 
 purpose ; B. v. Britton, 1 M. & Boh. 297 ; because, as explained by 
 Patteson, J., in B. v. Wheater, 2 Mood. C. C. 61, the balance-sheet 
 was only admissible in the event of the commission being valid, and 
 therefore it could not itself be given in evidence to prove the peti- 
 tioning creditor's debt as a part of the commission. Where the de- 
 fendant, on cross-examination in a civil action, was compelled by the 
 judge to answer questions tending to criminate him, it was held that 
 the admissions so obtained could not be used against him upon his 
 trial on a criminal charge. -B. v. Garhett, 1 Den. 236 ; 2 C. (& K. 
 474. It is no objection to the admissibility of a confession that it 
 was elicited by questions, if no imdue influence be used ; B. v. Ellis, 
 By. & M. 432 : B. v. Thornton, 1 Mood. C. C. 27 ; and so, declarations 
 of a defendant, though made as a witness before a committee of the 
 House of Commons, and under compulsory process, were holden by 
 Abbott, C. J., in B. v. Merceron, 2 Starh. 366, to be admissible against 
 the defendant upon an indictment for corruptly granting licences to 
 public-houses. See B. v. Gilham, 1 Mood. C. C. 203. 
 
 There are some cases in which, by statute, evidence given by a 
 person on a former trial or inquiry in which he was examined as a 
 ' witness, cannot be given in evidence against him on a criminal 
 charge. Thus, by 26 Vict. c. 29 (The Corrupt Practices Preoentim 
 Act, 1863), s. 7, no statement made by any person in answer to any 
 question put by or before such election committee or commissioners 
 as in that act mentioned, shall, except in cases of indictments for 
 
Admissions and Confessions. 231 
 
 peijury, be admissible in evidence in any proceeding, civil or cri- 
 minal. Provisions of a similar nature are contained in 26 <£ 27 Vict. 
 c. 119 {The Exhibition Medals Act, 1863), ». 6, and in 25 d 26 Vict, 
 c. 88 {The Merchandize Marks Act, 1862), s. 11. Subject, however, 
 to any exceptions introduced by statute, the general rule deducible 
 from the modern cases seems now to be, that although a sworn 
 statement made by a prisoner wnder examination respecting a criminal 
 charge cannot afterwards be used in evidence against him, yet any 
 statement made by a person upon oath, when being examined as a 
 imtness, either before a civil tribunal, a coroner or a magistrate, may 
 be afterwards used against him on his trial on a criminal charge, 
 imless indeed at the time of his examination he objected to answer 
 the questions on the ground that the answers would tend to criminate 
 him, and yet was improperly compelled to answer them. 1 Tayl. 
 Ev. 779 {^th ed.); 3 Muss. C. & M., by Greaves, 418 {Uh ed.). 
 
 Although a confession, for the above or any other reasons, may not 
 be receivable in evidence, yet any discovery that talces place in con- 
 sequence of such confession, or any act done by the defendant, if it 
 be confirmed by the finding of the property, M. v. Jenkins, S. <& R. 
 492, will be admitted; as, for instance, if a man, by promise of favour, 
 be induced to confess that he knowingly received certain stolen goods, 
 and that they are in such a room in his house, and the goods be found 
 there accordingly, although the confession itself cannot in that case 
 be given in evidence, yet it may be proved, that in consequence of 
 something the witness heard from the defendant, he found the goods 
 in question in the defendant's house. R. v. Lockhart, 2 East, P. C. 
 658; 1 Leach, 386: and see R. v. Warmckshall, 1 Leach, 263: R. v. 
 Mosmj, Id. 265, re.: R. v. Butcher, Id.: R. v. Gould, 9 C. cd P. 364. 
 And it would seem also, that declai-ations of the defendant, accom- 
 panying such acts, may be received in evidence, even though the 
 confession itself may be inadmissible. R. v. Griffin, R. <£• R. 151: 
 R. V. Leatham, 30 L. J. {Q. B.) 205. 
 
 How proved.'] — ^When a defendant pleads guilty, if he persist in 
 his plea, it is immediately recorded by the proper officer; and the 
 same, where a defendant yields himself to the Queen's mercy, and 
 desires to submit to a small fine. In other cases, the admission or 
 confession must be proved at the trial. And, in a criminal case, the 
 judge will not allow the case to be tried upon admissions entered 
 into by the attorneys on both sides, nor unless they be made at the 
 trial by the defendant or his counsel. jB. v. Thomhill, 8 C. d P. 
 576. 
 
 A confession before a magistrate, if taken down in writing at the 
 time, should be produced, and appear to have been duly taken. It 
 was formerly supposed that it must be proved by the magistrate who 
 took and signed it, or by his clerk who wrote it; see 1 Hale, 685; 2 
 Hawk. c. 46, s. 43; 1 Leach, 240, 348: R. v. Bell, b C. & P. 162; 
 but it was clearly settled by the later authorities on this subject, 
 that it might be given in evidence on the prisoner's handwriting 
 being proved by any person who was present at his examination. 
 R. V. Chappel, 1 M. & Rob. 395: R. v. Hopes, Id. 396, n.; 1 C. & P. 
 136: R. V. Foster, 1 C.&P. 148: R. v. Rees, Id. 568: R. v. Reading, 
 Id. 649: R.y. Pikesl^_, 9 C. <& P. 124. See now the 11 <& 12 Vict, 
 c. 42, s. 18, infra. If it be clearly shown that the examination of 
 the defendant was not reduced to writing, or, perhaps, if the writing 
 be lost or destroyed, then parol evidence of it may be admitted. 
 
232 Admissions and Confessions. 
 
 R. V. Fearshire, 1 Leach, 202. See R. v. Lamb, 2 Leach, 582. Until 
 the contrary be shown, it shall be intended that the magistrate did 
 his duty, and took down the examination of the defendant in writing. 
 R. V. Jacob, 1 Leach, 309. And where the magistrate returned with 
 the depositions that the prisoner said, " I decline to say anything," 
 parol evidence of a confession alleged to have been made by the 
 prisoner in the presence of the magistrate, and while under exami- 
 nation, was rejected. R. v. Walter, 7 C. & P. 267. But, upon 
 clear and satisfactory evidence, it will be competent to provfe some- 
 thing said by the defendant, beyond what is taken down by the ma- 
 gistrate. Rowland v. Ashby, Ry. & M. 231 : R. v. Harris, 1 Mood. 
 C. C. 338: R. v. Wilkinson, 8 C. S P. 662. So, if the examination 
 taken in writing be inadmissible by reason of irregularity, parol 
 evidence of what he said at the time of the examination may be re- 
 ceived—per Tindal, C. J., in R. v. Reed, M. & M. 403. Where the 
 magistrate's clerk, in taking down the statement of several prisoners 
 charged with the same offence, had left a blank where either of the 
 prisoners had mentioned the name of another of them, the judge 
 would not allow those blanks to be supplied by parol evidence. R. 
 V. Morse, 9, C. & P. 605. By stat. 7 G. 4, c. 64, ss. 2, 3, and 11 & 12 
 Vict. c. 42, s. 18, the magistrate is expressly directed to sign the 
 examination, which, although usual, was not before requisite. And 
 by the latter act, the examination, when so signed by the justice or 
 justices, and transmitted with the depositions, may be given in evi- 
 dence against the accused person without further proof thereof, unless 
 it be proved that the justice or justices purporting to sign the same 
 did not in fact sign it. The signature of the defendant is not how- 
 ever required, and is only for precaution and facility of proof. When 
 the prisoner affixes his mark only, it must be proved that the exami- 
 nation was correctly read over to him. R. v. Chappel, \ M. & Bob. 
 395. Where the examination was taken in writing, but the prisoner 
 refused to sign it, without saying whether it was correct or not. 
 Wood, B., refused to admit it in evidence. R. v. Telicote, 2 Stark 
 483. The two cases last named were, however, decided before the 
 11 S 12 Vict. c. 42, s. 18, under which the signature of the accused 
 is not requisite. And in Lamb's case, 2 Leachf 682, where it ap- 
 peared that the written examination, at the time it was taken, was 
 read over to the prisoner, and that he admitted it to be true, but 
 refused to sign it, the judges held that it was admissible in evidence, 
 in the same manner as if he had signed it; that a prisoner's con- 
 fession, if not reduced to writing, may be given in evidence against 
 him, and a fortiori, if in writing, although not signed by him; for its 
 being reduced to writing renders it less doubtful, and entitles it to 
 greater credit. See also R. v. Thomas, 2 Leach, 637. If the prisoner 
 admit, when examined before the magistrate, that the deposition of 
 a witness examined against him is true, that deposition may be read 
 at the trial as part of the prisoner's statement, although the witness 
 himself have been examined at the trial. R. v. John, 1 C.& P. 324. 
 But the statement of one of several prisoners, brought before a 
 magistrate for the same offence, cannot be read in evidence against 
 the others; because they are only called upon to answer the deposi- 
 tions of the witnesses, taken on oath, not the statements of their 
 fellow-prisoners. R. v. Swinnerton, C. <6 Mar. 593. Where a de- 
 fendant was examined before the Lords of the Council, and a witness 
 took notes of his examination, which was not signed by or read over 
 to the defendant, it was holden that the witness might refi'esh his 
 
Admissions and Confessions. 233 
 
 memory from the notes, but that the minutes were not admissible as 
 a judicial examination. R. v. Layer, 16 St. Tr. 215. The effect of 
 the statute, so far as regards the evidence of a confession, seems to 
 be, that a written examination, taken as the statute directs, is evi- 
 dence per se, and the only admissible evidence of the defendant's 
 having made a declaration of the things therein contained ; whereas, 
 at common law (unless the defendant signed the paper, or, on its 
 being read, allowed it to be true) the confession must have been 
 proved by some person who heard it, and the writing could only 
 have been made use of by the person who wrote it, for the purpose 
 of reireshing his memory. See 2 Suss. 650. It may be observed 
 that, if the examination of the prisoner be not put in evidence in the 
 first instance, it cannot be afterwards read as evidence in reply, to 
 contradict a defence set up at the trial which is inconsistent with it. 
 R. V. Powell, C. & Mar. 500. 
 
 Admissions or confessions to other persons than magistrates, if in 
 writing, are proved as any other written instrument; if by parol, they 
 are proved by parol evidence of some person who heard them. What 
 the prisoner has been overheard to say to another, or to himself, is 
 equally admissible ; though it is a species of evidence to be acted on 
 with much caution, as being liable to be unintentionally misrepre- 
 sented by the witnesses. See R. v. Simons, & C.<&P. 540. In all cases 
 of high treason, a confession in open court precludes the necessity of 
 proving the treason by witnesses, T d) 8 W. 3, c. 3, s. 2; 1 Ed. 6, c. 
 42, s. 22; 5 fg 6 Ed. 6, c. 11, s. 12; Fost. 241. So also, the confes- 
 sion of an overt act upon an examination before a magistrate or 
 other person having authority for that purpose, if proved at the trial 
 by two witnesses, is sufficient to convict the defendant; R. v. 
 Franeia, 1 East, P. C. 133, n.; Fost. 243; but evidence of a con- 
 fession to a person not having such authority, although proved by 
 two or more witnesses, can only be received in corroboration of the 
 other evidence in the case; and the treason must still be proved by 
 two witnesses notwithstanding. R. v. Willis, 8 St. Tr. 250, 255; 
 and see Fost. 243. But a confession before a magistrate or other 
 person may be given in evidence to prove a collateral fact, as, for 
 instance, that the defendant is a natural-bom subject, R. v. Vaughan, 
 5 St. Tr. 25: R. v. Smith, Fost. 242, or the like, and may be proved 
 by one witness, as in ordinary cases. 
 
 Effect of."] — When the defendant, in open court, confesses that he 
 is guilty of the offence with which he is charged in the indictment, a 
 trial is unnecessary, and the court may immediately proceed to 
 award judgment : the courts, however, are usually backward in re- 
 ceiving and recording such a confession, at least in highly penal 
 cases, and will generally advise the defendant to retract it and plead 
 to the indictment. 2 Hale, 225. So, in misdemeanors, if the court 
 receive the submission of the defendant, without putting him to a 
 direct confession, the fine may be imposed without fm-ther proceed- 
 ing. 2 Hawh. c. 31, s. 2. A free and voluntary confession of guilt 
 made by a defendant, whether under examination before magistrates 
 or otherwise, if duly made and satisfactorily proved, is suflicient at 
 once to warrant a conviction, without any corroborative evidence 
 aliunde. R. v. White, R. & R. 608: R. v. Tippett, Id. 509: R. v. 
 Eldridge, Id. 440: R. v. Falkner, Id. 481: R. v. Stone, Dy. 204: 
 R. V. Francis, 6 St. Tr. 58: R. v. Lamhe, 2 Leach, 554: Tt. v. Wheel- 
 
234 Admissions and Confessions. 
 
 ings, 1 Leach, 311, n. But this must be understood of a direct and 
 positive confession; for admissions by implication are not entitled to 
 the same weight. 
 
 In all cases, the whole of the confession should be given in evi- 
 dence; for it is a general rale, that the whole of the account which 
 a party gives of a transaction must be taken together; and his ad- 
 mission of a fact disadvantageous to himself shall not be received, 
 without receiving at the same time his contemporaneous assertion of 
 a fact favourable to him, not merely as evidence that he made such 
 assertion, but admissible evidence of the matter thus alleged by him 
 in his discharge. 4 Taunt. 245: and see the Queen^s case, 2 Brod. & 
 B. 294. It has been said, that if there be no other evidence in the 
 case, or none which is incompatible with the confession, it must be 
 taken as true; R. v. Jones, 2 C. <& P. 629; but the better opinion 
 seems to be that, as in the case of all other evidence, the whole 
 should be left to the jury, to say whether the facts asserted by the 
 prisoner in his favour be true. Smith v. Blandy, Ry. & M. 258: 
 R. V. Biggins, 3 C. & P. 603: R. v. Clewes, A.C.&P. 221. 
 
 It is also necessary to observe, that a man's confession is only 
 evidence against himself, and not against his accomplices; 1 Hale, 
 685; 2 Hawh. P. C. c. 46, s. 3; R. v. Tong, Kel. 17, 18: R. v. Bo- 
 roshi, 3 St. Tr. 474; unless, indeed, the confession was made in the 
 presence of the accomplice, and when the prisoners were not before 
 a magistrate, in which case it would be evidence, although of doubtful 
 value, against the accomplice, and that even although he made no 
 observation upon it. 1 Phil. Ev. 400. If, however, the prisoners 
 were before a magistrate at the time when the confession was made 
 by one of them, charging the other, the mere fact that the latter did 
 not deny the charge, would not render the confession evidence against 
 him. R. V. Appleby, 3 StarJc. 33; although if he himself in his own 
 statement before the magistrate made an express reference to the 
 confession of his fellow prisoner, such reference might have the effect 
 of rendering the confession admissible as against him. 3 Russ. C. 
 & M., by Greaves, 423 (ith ed.). So, the confession of a principal 
 is not evidence against an accessory to prove the guilt of the prin- 
 cipal, which must be proved aliunde. R. v. Turner, 1 Mood. C. C. 
 347. In Tinchler's case, the dying declarations of a felo de se were 
 holden by the judges to be good evidence against a person indicted 
 for assisting the deceased in his self-murder: and the majprity of the 
 judges were of opinion that this evidence would of itself be sufficient 
 to convict, although the testimony of the accomplice, if living, would 
 not, unless corroborated by other evidence. 1 East, P. C. 354. 
 {See ante, p. 223.) This case is no infringement of the general rule 
 that a man's confession is no evidence against his accomplice, for 
 an accomplice is admissible as a witness against his fellows, and 
 a dying declaration made by a person who, if alive, would be ad- 
 missible as a witness, is admissible as evidence where the death 
 of the deceased is the subject of the charge, and the cause of the 
 death the subject of the dying declaration. In cases of conspiracy, 
 and of high treason in compassing the Queen's death, etc., anything 
 said or written by one of the accomplices, not as a confession simply, 
 but for the purpose of furthering the common design, is admissible 
 evidence against the others. R. v. Watson, 2 Stark. 140; and see 
 ante, p. 214; and Harrison's Dig., tit. Confession. 
 
 Where two prisoners are jointly indicted, and are on their trial. 
 
Premmptions, 235 
 
 and it appears from the opening of the counsel for the prosecution 
 that there is no case against one of them, statements made by that 
 one in the absence of the other, tending to show the guilt of the 
 latter, cannot be given in evidence. B. v. Gardiner, 9 Cox, 332. 
 
 Sect. 2. 
 
 presumptions. 
 
 Peesumptivb or (as it is usually termed) circumstantial evidence 
 is receivable in criminal as well as in civil cases: and, indeed, the 
 necessity of admitting such evidence is more obvious in the former 
 than in the latter; for, in criminal cases, the possibility of proving 
 the matter charged in the pleading by direct and positive testimony 
 is much more rare than in civil cases. 
 
 A presumption is, where some facts being proved another follows 
 as a natural or very probable conclusion from them, so as readily to 
 gain assent from the mere probability of its having occurred, without 
 further proof. The fact thus assented to is said to be presumed, that 
 is, taken for granted until the contrary be proved by the opposite 
 party; stahitw prcesumptioni donee prohetur in contrarium. Co. Litt. 
 272. And it is adopted the more readily, in proportion to the diffi- 
 culty of proving the fact by positive evidence, and to the obvious 
 facility of disproving it or of proving facts inconsistent with it, if it 
 really never occurred. 
 
 These presumptions are of three kinds: violent presumptions, where 
 the facts and circumstances proved necessarily attend the fact pre- 
 sumed; Gilb. Ev. 147; pmhable presumptions, where the facts and 
 circumstances proved usually attend the fact presumed; 3 Bl. Com. 
 372; and light or rash presumptions, which, however, have no weight 
 or validity at all. Id.; Gilb. Ev. 167; Co. Litt. 6 b. If, upon an 
 indictment for murder, it were proved that the deceased was murdered 
 in a house, and that the defendant was immediately afterwards seen 
 running out of it with a bloody sword in his hand; these facts raise 
 a violent presumption that the defendant was the murderer; for the 
 blood, the weapon, and the hasty flight, are all circumstances neces- 
 sarily attending the fact presumed, namely, the murder. Co. Litt. 
 6 6; Staimdf. 179 a; Gilb. Ev. 157. So, upon an indictment for 
 stealing in a dwelling-house, if the defendant were apprehended a 
 few yards from the outer door, with the stolen goods in his posses- 
 sion, it would be a violent presumption of his having stolen them ; 
 but if they were found in his lodgings some time after the larceny, 
 and he refused to account for his possession of them, this, together 
 with proof that they were actually stolen, would amount, not to a 
 violent, but to a probable presumption merely ; but, if the property 
 were not found recently after the loss, as, for instance, not until 
 sixteen months after, it would be but a light or rash presumption, 
 
 and entitled to no weight. JR. v. , 2 C.S P. 459 ; see B. v. 
 
 Adams, 3 C. S P. 600: B. v. Cooper, 3 C. & K. 318. And if the 
 prisoner give a reasonable account of the manner in which he 
 became possessed of the goods, this will so far rebut the presump- 
 tion, as to throw it upon the prosecutor to negative that account. 
 B. V. Crowhurst, 1 C. cfi K. 370: B. v. Smith, 2 C. <& K. 207: B. v. 
 Harmer, 2 Cox, 487. Where, however, a prisoner was convicted of 
 
236 Presumptions. 
 
 stealing some articles of dress, and the evidence against him consisted 
 of proof that he was in possession of the property recently after it 
 had been stolen, that he sold it openly, and on his arrest stated to the 
 constable that C. and D. brought the things to his house, and that 
 W., who was at his house, would say that that was true. C., D. and 
 W. were persons known to the constable, and might have been pro- 
 duced as witnesses, but were not called ; and inquiry was made of 
 W., but the result of the inquiry was not given in evidence, it was 
 held that the conviction was good, aad that it was not incumbent on 
 the prosecution to call the persons, to whom the prisoner had referred, 
 to disprove his statement. R. v. Wilson, Dears. & B. 157 ; 26 L. J. 
 (M. C.) 45. Although the last-mentioned case may at first sight 
 seem at variance with the doctrine laid down in R. v. Orowhurst, 
 M. V. Smith and R. v. Harmer, ubi supra, it is not so in reality, for 
 although R. v. Orowhurst anA R. v. Smith were cited in R. v. Wilson, 
 the decision in R. v. Wilson did not turn on those cases, but on the 
 question whether the whole evidence taken together was sufficient 
 to justify a conviction. Best ore Evidence, 295 (ith ed.}. The 
 presumption of guilt arising from the possession of stolen pro- 
 perty will, of course, vary according to the nature of the property 
 stolen, and whether it be or be not likely to pass readily fi-om 
 hand to hand. See R. v. Partridge, 1 C. <& P. 551. Upon an 
 indictment for arson, proof that property, which was in the house 
 at the time it was burnt, was afterwards found in the possession 
 of the defendant, raises a probable presumption that the defendant 
 was present and concerned in the arson. See R. v. Rickman, 2 East, 
 P. C. 1035. A like inference has been raised in the case of mui'der, 
 accompanied by robbery; Wills, Cir. Eo. 61 ; in a case of burglary, 
 R. V. Gould, 2 as P. 364 : R. v. Exall, 4: F. d F. 922 ; and in the 
 case of the possession of a quantity of counterfeit money. R. v. 
 Fuller, R. S R. 308': R. v. Jarvis,_ Pearce & D. 552 ; Tayl. Eo. 148 
 (4iA ed.). Although upon an indictment for larceny it is necessary 
 to prove that goods of the prosecutor have been taken, that may be 
 proved by circumstances, although the witnesses for the prosecution 
 cannot swear to the loss of the article said to be stolen, nor that the 
 property found upon the prisoner and alleged to have been stolen is 
 the prosecutor's. A large quantity of pepper was kept in bulk in a 
 warehouse where the prisoner had no business. He was met coming 
 out of the warehouse having on him a quantity of pepper of the same 
 description as that in the warehouse. On being stopped he threw 
 down the pepper, and said, " I hope you will not be hard with me." 
 From the large quantity in the warehouse, it could not be proved that 
 any pepper had been taken fi-om the bulk. Upon these facts, it was 
 held that there was abundant evidence to justify the conviction of 
 the prisoner for stealing the pepper. R. v. Burton, Dears. 282; 
 23 L. J. (Jf. C.) 52. " If a man go into the London Docks sober, 
 without means of getting drunk, and comes out of one of the cellars 
 very drunk, wherein are a million gallons of wine, I think that would 
 be reasonable evidence that he had stolen some of the wine in that 
 cellar, though you could not prove that any wine was stolen, or any 
 wine was missed." Per Maule, J., in R. v. Burton,' Dears. 282. 
 See also R. v. Mockford, 11 Cox, 16. Where, upon an indictment for 
 perjuiy, in falsely taking the freeholder's oath in the name of J. W. 
 at a parliamentary election, it was proved that the freeholder's oath 
 was administered to a person who polled on the second day of the 
 election by the name of J. W. ; that there was no such person in 
 
Presumptions. 237 
 
 fact as J, W. ; that the defendant voted on the second day, though 
 he was not a freeholder; that he did not vote in his own name or in 
 any other than the name of J. W. ; that there was but one false vote 
 given on the second day's poll; and that the defendant some time 
 aftei-wards boasted that he had done the trick, and was not paid 
 enough for the job, and was afraid he should be pulled up for his bad 
 vote; the court held that this was sufficient evidence for the jury to 
 presume that the defendant voted in the name of J. W., and conse- 
 quently to find him guilty of the charge in the indictment. B. v. 
 Price, 6 East, 323. Upon an indictment for disposing of and putting 
 away a forged bank-note, knowing it to be forged, proof that the 
 defendant has passed other forged notes raises a probable presump- 
 tion that he knew the note, for the passing of which he is now 
 indicted, to be forged ; and if, in addition to this, it be proved that 
 the defendant, when he passed these notes, gave a false name or 
 address, it amounts to a violent presumption of his guilty knowledge. 
 And the same upon indictments for uttering counterfeit money. 
 (See ante, p. 216.) The fact that a person is alive on a given day 
 may be presumed fi-om proof of his being aHve on an antecedent 
 day. If, for example, it was proved on the trial of a man for bigamy 
 that the first wife was in good health on the day preceding the 
 second marriage, the inference would be almost irresistible that she 
 was living on the latter day, and the jury would in all probability 
 find that she was so. If, on the other hand, it was proved that she 
 was on the day before the second marriage in a dying condition, and 
 nothing fiurther was proved, they would probably decline to draw 
 that inference. The question is, however, entirely for the jury, the 
 law making no presumption either way. jR. v. Lumley, L. R., 1 C. C. 
 R. 196; 38 r. J. (if. G) 86. 
 
 In addition to the presumptions which a jury may make from cir- 
 cumstantial evidence, there are also presumptions in law. Thus, in 
 murder, the law presumes malice from the act of killing, until the 
 contrary be proved by the defendant. Fast. 265 ; 1 East, P. C. 340. 
 And malice is also presumed where any wrongful act is done inten- 
 tionally, without just cause or excuse. " Malice," says Bayley, J., 
 in delivering the judgment of the court in Bromage v. Prosser, 4 B. 
 & C. 247, 255, " in common acceptation means ill-will against 
 a person, but in its legal sense it means a wrongful act, done 
 intentionally, without just cause or excuse. If I give a perfect 
 stranger a blow likely to produce death, I do it o/ malice, because I 
 do it intentionally, and without just cause or excuse. If I maim 
 cattle, without knowing whose they are, if I poison a fishery, without 
 knowing the owner, I do it of malice, because it is a wrongful act, 
 and done intentionally. And if I traduce a man, whether I know 
 him or not, and whether I intend to do him an injury or not, I appre- 
 hend the law considers it as done of malice, because it is wrongful 
 and intentional." And the law also infers that every man must con- 
 template the necessary consequences of his own act. P. v. Dixon, 
 3 M. <& Sel. 15. Thus, the uttering of a forged stock receipt to a 
 person who employed the prisoner to purchase stock to that amount, 
 and advanced the money, was holden sufficient evidence of an 
 attempt to defraud, notwithstanding the belief of the pai-ty to whom 
 it was uttered that the prisoner had no, such intention. P. v. 
 Sheppard, R. & R. 169. So, where a man was indicted under the 
 repealed statute 43 G. 3, c. 58, for setting fire to a mill, with intent 
 to injure the occupiers, it was holden that the intent might be 
 
238 Presumptions. 
 
 inferred from the act. R. v. Farrington, R. & R. 207. And upon 
 an indictment for forgery, an intention to defraud the person -who 
 would have to pay the instrument if it were genuine, may be inferred, 
 even though the instrument be so framed as not to impose upon him, 
 and the intention to defraud be general, and not confined or in any 
 way pointed to the person by whom, if genuine, the instrument 
 would be paid. R. v. Mazagora, R. & R. 291 : R. v. Hill, 2 Mood. 
 C. C. 30; 8 C. i&P. 274. Where a man has in his possession a large 
 quantity of counferfeit coin unaccounted for, it may be inferred that 
 he procured it with intent to utter it, if there be no evidence that he 
 was the maker. R. v. Fuller, R. & R. 308. So, in every case, 
 intention can be but matter of presumption, arising either from the 
 facts stated in the indictment, or from extrinsic facts stated in 
 evidence. (See ante, p. 208.) There is no presumption of law that 
 a person proved to have been alive on a certain day was alive on 
 a subsequent day, although a jury may be well warranted by such 
 proof, in finding as a matter of fact that he was so. R. v. Lvmlei/, 
 ante, p. 131. As to the presumption from the fact of a previous con- 
 viction that a person found in possession of stolen goods knew that 
 they were stolen, see 32 & 33 Vict. c. 99, s. 11, ante, p. 216. 
 
 It may also be necessary to observe, that the law presumes every 
 man to be innocent, until the contrary be proved. R. v. Twynimg, 
 2 B. & Aid. 386 : Sissons v. Dixon, b B. & C. 758. It is also a 
 maxim of law, that " omnia prcesumuntur rite et solenniter esse acta 
 donee prohetur in eontra/rium ;" upon which ground it will be presumed, 
 even in a case of murder, that a man who has acted in a public 
 capacity or situation was duly appointed. R. v. Verelst, 3 Camp. 432 : 
 R. V. Gordon, 1 Leach, 516: R. v. Murphy, 8 C. <& P. 297: S. v. 
 Newton, 1 C. & K. 469. The rule that ignorance of the law shall 
 not excuse a man or relieve him from the penal consequences of a 
 crime {ante, p. 24) is sometimes spoken of as arising from a pre- 
 sumption that every person knows the law. The foUowiag language, 
 however, used by Maule, J., in Martindale v. Falkner, 2 Com,. B. 
 Rep. 720, is characterized by Blackburn, J., in R. v. Mayor, &c. of 
 Tewheshury, L. R., 3 Q. B. 629; 37 L. J. (Q. B.) 288, as clear and 
 common sense: " There is no presumption in this country that every 
 person knows the law ; it would be contrary to common sense and 
 reason if it were so." 
 
 Although presumptive evidence must, from necessity, be admitted, 
 yet in felony and treason it should be admitted cautiously. And Sir 
 Matthew Hale, in particular, lays down two rules most prudent and 
 necessary to be observed, in this respect : first. Never to convict a 
 man for stealing the goods of a person unknown, merely because he 
 will give no account how he came by them, unless an actual felony be 
 proved of such goods ; -and secondly, Never to convict any person of 
 murder or manslaughter, till at least the body be found — on account 
 of two instances he mentions, where persons were executed for the 
 murder of others who were then alive, although missing. 2 Hale, 
 290. 
 
( 239 ) 
 
 Sect. 3. 
 written evidence. 
 
 1. Records, p. 239. 
 
 2. Matters quasi of Record, p. 243. 
 
 3. Written Instruments of a Private Nature, p. 264. 
 
 1. Records. 
 
 Public statutes.] — Public statutes, the rules of the common law, 
 and the general customs of the realm, are never required to be set 
 forth in the pleadings, or proved at the trial : because the courts are 
 bound, ex officio, to take notice of them. And therefore, when the 
 printed copy of a public statute is produced at a trial, as is frequently 
 the case, it is not to be deemed to be produced as evidence, but rather 
 in aid of the memory of the court and jury. See Gilh. Ev. 10. By 
 stat. 41 G. 3, c. 99, s. 9, the statutes of Ireland, prior to the imion, 
 printed and published by the Queen's printer, shall be received as 
 conclusive evidence in any court in Great Britain. 
 
 Where the printed copy of a public statute was produced in proof 
 of certain facts recited in the preamble, the court held that it was 
 admissible evidence for that piurpose. R. v. Sutton, 4 -M". c6 Sel. 532. 
 
 Private statutes.] — Private statutes and particular customs must be 
 set forth in pleading, and proved if put in issue. A private statute is 
 well proved by an examined copy of the parliament roll, Gilb. Ev. 12 : 
 and see R. v. Shaw, 12 East, 479, unless it be otherwise du-ected by 
 the statute itself. And by the 8 (£• 9 Vict. c. 113, s. 3, all copies of 
 private and local and personal acts of parliament, not public acts, if 
 purporting to be printed by the Queen's printers, shall be admitted as 
 evidence thereof by all courts, judges, justices, and others, without 
 any proof being given that such copies were so printed. A private 
 statute containing a clause that it shaU be deemed and taken to be 
 a public act, and shall be judicially noticed without being specially 
 pleaded, must be proved in the regular manner, in order to make it 
 evidence against strangers of the facts stated in it ; Brett v. Beaks, 
 Moo.&M. 421 ; but the printed copy is admissible as evidence, in the 
 same manner as in the case of a public act properly so called. Id. : 
 Woodward v. Cotton, \ C. M. & R. 44 : Beaumont v. Mountain, 10 
 Bing. 404 ; 4 Moo. & S. 177. See GremoUe v. Kemp. C. & Mar. 635. 
 Since the commencement of the session of 13 <& 14 Vict. (Feb. 4, 
 1851) all acts are to be taken as public acts, and judicially noticed 
 as such, unless the contrary be expressly provided. 13 & 14 Vict, 
 c. 21, s. 7. 
 
 Articles of war. ]~'T:h.Q articles of war for the better government 
 of the army (see the Annual Mutiny Act, s. 1), and the rales and 
 articles of war for the better government of the royal marine forces 
 (see the Annual Marine Mutiny Act, s. 1), are to be judicially noticed 
 by all judges and in all courts whatsoever, and therefore require no 
 proof. 
 
 _ Records of the Queen's Courts.] — In general, a record is proved, 
 either by producing the record itself, or by an exemplification of it 
 
240 Written Evidence. 
 
 under the great seal, whieli is itself a record, and needs no farther 
 proof; Gilb. Ev. 14 ; LeyfieMs case, 10 Co. 93 ; or by an exempU- 
 fieation of it under the seal of the court (whether of a court of 
 common law or of one created by act of parliament), Olive v. Gwin, 
 2 Sid. 145 ; Gilb. £«. 17, 19 ; 10 Co. 93 : and see Eardr. 120, and which 
 also needs no further proof; Gilb. Ev. 19 ; or by an examined copy, 
 10 Co. 92 b; 2 Roll. Abr. 678, I. 45 ; Hardr. 119, according to cir- 
 cumstances. An exemplification produced from the proper custody, 
 and purporting to exemplify a commission from the crown, is evi- 
 dence, though the seal has been lost. Mayor of Beiverley v. Oravm, 
 %U.& Rob. 140. 
 
 Where matter of record is but mere inducement, and not the gist 
 of the pleadings, it may be proved by an examined copy. Gilb. Eo. 
 26. This copy may be had from the officer in whose custody the 
 record is; and the person who is to prove it at the trial must 
 examine the copy whilst the officer reads the record. It is not 
 necessary that the officer should also read the copy whilst the witness 
 examines the record. Reid v. Margison, 1 Camp. 469 : Gyles v. Hill, 
 Id. 471, ra. : Rolf v. Dart, 2 Taunt. 52. 
 
 Where an office copy was thus sworn to have been examined with 
 the original, but there appeared on the face of it a number of con- 
 tractions and abbreviations, as " pal. este.," for " personal estate," and 
 the like, it was rejected. R. v. Christian, C. S Mar. 388. 
 
 But where matter of record forms the gist of the pleading, it must 
 be proved by the production of the record itself, or by an exempU- 
 fication of it. If it be a record of the same court in which it is 
 pleaded the record itself must in general be produced (see B. v. 
 Shaw, R. & R. 526 : R. v. Newman, 2 Den. 390 ; 21 L. J. (M. G.) 75 ; 
 if it be a record of another court, an exemplification (that is, a copy 
 under seal) of it is sufficient. The proper proof that a prisoner was 
 in lawful custody under a sentence of iniprisonment passed at the 
 assizes is by the proof of the record of his conviction ; and neither 
 the production of the calendar of sentences, signed by the clerk of 
 assize, and by him delivered to the gaoler, nor the evidence of a 
 person who heard sentence passed, is sufficient for this purpose. B. . 
 V. Bov/rclon, 2 C. & K. 366. 
 
 Where the record of an inferior court forms the gist of a pleading 
 in the court of Queen's Bench, and it is to be proved accordingly by 
 an exemplification, sue out a certiorari, either with the cursitor, or 
 with the proper officer of the Queen's Bench, directed to the chief 
 justice, judge, or officer of the inferior court in whose custody the 
 record is supposed to be, requiring him to certify the record to the 
 court of Queen's Bench ; and thereupon an exemplification of the 
 record, under the seal of the inferior court, will be transmitted to the 
 court of Queen's Bench, to be there used as evidence. (See the form, 
 6 Went. 24.) But where a record of the court of Queen's Bench is 
 to be proved in an inferior court, you must sue out a certiorari with 
 the cursitor, directed to the chief justice of the Queen's Bench, 
 requiring him to certify the record to the court of Chancery; and the 
 record being thereupon accordingly certified, an exemplification of 
 it under the great seal is thence sent by mittimus to the inferior 
 court, to be there used as evidence. See Gilb. Ev. 14, 15. 
 
 So, where the record of a court of quarter sessions is pleaded in a 
 court of oyer or terminer, or the converse, or where the record of one 
 court of oyer and terminer is pleaded in another, the exemplification, 
 in strictness, should in like manner be obtained upon certiorari ; but 
 
Written Evidence. 241 
 
 the general practice is, to apply simply to the clerk of the peace or 
 clerk of assize, who will make it out for you accordingly, without 
 wi-it, or will attend with the record itself at the trial. Where the 
 " sessions book" was produced to prove an order of the quarter ses- 
 sions, but the clerk of the peace said that he would have made up 
 the record if it had been bespoken, Parke, B., refused to receive the 
 book in evidence. R. v. Ward, 6 C. & P. 366 : see R. v. Bellamy, 
 Ry. & M. 171. But where the entry of the order in the book had a 
 regular caption, and was in the present tense, and in every other 
 respect like a record, and it was proved that no other record was 
 ever made up, this was held to be legal evidence of the order. R. 
 V. Yeoveley, % A. & E. 806. 
 
 A record is very seldom the gist of a pleading in criminal cases, 
 excepting on a plea of auterfois acquit, etc., or upon an indictment 
 for a felony after a previous conviction. In the former case, it is 
 almost always a record of the same court that is pleaded. And it is 
 now provided, by stat. 14 & 15 Vict. c. 99, s. 13, that whenever, in 
 any proceeding whatever, it may be necessary to prove the trial and 
 conviction or acquittal of any person charged with any indictable 
 offence, it shall not be necessary to produce the record of the con- 
 viction or acquittal of such person, or a copy thereof ; but it shall be 
 sufficient that it be certified, or purport to be certified, under the 
 hand of the clerk of the court or other officer having the custody of 
 the records of the com-t where such conviction or acquittal took 
 place, or by the deputy of such clerk or other officer, that the paper 
 produced is a copy of the record of the indictment, trial, conviction 
 and judgment, or acquittal, as the case may be, omitting the formal 
 parts thereof. It seems, therefore, that the record for this purpose 
 must be made up, although the formal parts need not be included in 
 the certificate. But the production by the officer of the court (being 
 the same court in which the subsequent proceeding was had) of the 
 caption, the indictment, with the indorsement of the prisoner's plea, 
 the verdict, and the sentence of the court upon it, together with the 
 minutes of the trial, made by the officer in com-t, was held sufficient 
 evidence of the former trial, without the production either of the 
 record or of a certificate under this section. R. v. Newman, 2 Den. 
 390 ; 21 L. J. (M. C.) 75. See R. v. Parry, 1 C. & P. 836. The 
 record, upon an indictment for a subsequent felony, is proved by the 
 production of the record itself, if it be the record of the same court, 
 or by an exemplification if it be the record of another court, as above 
 mentioned. Or it may be proved in the manner provided by statute, 
 thus: By statute 7 & % G. 4, c. 28, s. 11, upon an indictment for a 
 subsequent felony, after a previous conviction for felony, a certificate 
 containing the substance and effect only (omitting the formal part) 
 of the indictment or conviction for the previous felony, purporting 
 to be signed by the clerk of the court, or other officer having the 
 custody of the records of the court where the offender was first con- 
 victed, or by the deputy of such clerk or officer, is, upon proof of 
 identity, sufficient evidence of the first conviction, without proof of 
 the signature or official character of the person appearing to have 
 signed the same. 7 <fe 8 ff. 4, c. 28, s. 11. {Seepost, Booh II., Part V.; 
 see also 24_(fc 25 Vict. c. 96, s. 116, as to the mode of proving a pre- 
 vious conviction against a person indicted for any offence punishable 
 under that act ; c. 97, s. 70, as to the mode of proving a previous 
 summary conviction of any offence against that act; c. 99, s. 37, as 
 to the mode of proving a previous conviction of any offence against 
 
 "W. M 
 
242 Written Evidence. 
 
 the coin.) Also, upon the trial of an indictment for being at large 
 before the expiration of a sentence of transportation, provision is 
 made by statute for proof of the former conviction and sentence by 
 a certificate of the officer of the court. 5 G. 4, c. 84, s. 24; post, 
 Book II., Part II., Cli. II. See also 28 Vict. c. 18, s. 6, which regulates 
 the proof of a conviction for the purpose of discrediting a witness ; 
 and the 14 & 15 Vict. c. 100, s. 22, which prescribes the mode of 
 proving the trial of an indictment for felony or misdemeanor upon 
 the trial of an indictment for peijury or subornation of perjuiy, 
 alleged to have been committed at the former trial. 
 
 In all other cases except those provided for by statute, where a 
 copy of a record is given in evidence, it must be a copy of the whole 
 record ; because the omission of part might have the effect of alter- 
 ing the sense and import of the residue. Gilh. Ev. 23 ; 3 Inst. 173. 
 Records are not complete until delivered into court on parchment; 
 therefore a minute-book, from which an entry of the proceedings at 
 sessions is made, and from which book the roU containing the record 
 of such proceedings is subsequently made up, is not a record. R. v. 
 Bellamy, By. & M. 171 : B. v. Thnng, bC.SP. 507 : see B. v. Ward, 
 6C.SP. 366 : B. v. Bourdon, 2 C. & K. 366 ; anU,p. 241. Thus, to 
 prove a verdict you must give in evidence a copy of the whole record, 
 including the judgment ; Bull. N. P. 234 ; Gilb. Ev. 87 ; for other- 
 wise it would not appear but that judgment had been arrested, or a 
 new trial granted; Bull. N. P. 234: Pitton v. Walter, 1 Str. 162; 
 unless in the case of an issue out of Chancery, where no judgment is 
 entered up. Bull. N. P. 234. But if it be required to prove merely 
 that a certain trial was had, the Nisi Prius record, with the poslm 
 indorsed upon it, is sufficient evidence for this purpose; Fisher y. 
 Kitchingmcm, Barnes, 449 ; and see Foster v. Compton, 2 Stark. 364 ; 
 or, if the postea be not drawn up, it may be proved by the production 
 of the Nisi Prius record, if the minute of the verdict be indorsed on 
 the jury panel by the officer of the court. B. v. Browm, M. & M. 
 315 : B. V. Smith, 8 B.dh C. 341. If it be necessary to prove what a 
 witness said upon a former trial, it may be read from the judge's 
 notes, or proved upon oath from the notes or recollections of any 
 person who was present at the time ; Mayor of Doncaster v. Day, 3 
 Tavmt. 262; 12 Mod. 318; Oilh. Ed. 68, 69; but in order to let in 
 such evidence, it must be first proved that the former trial took 
 place ; and this can be done only by giving in evidence an examined 
 copy of the record, GHlb. Ev. 68, or the Nisi Prius record with the 
 postea indorsed on it, as above mentioned. Pitton v. Walter, 1 Str. 
 162. 
 
 In order to prove a writ, if it be the gist of the pleading, you 
 must get it returned, and then procure and give in evidence an 
 examined copy of it. But if it be matter of inducement merely, it is 
 not necessary that it should be returned or proved by an exammed 
 copy ; Gilb. Eb. 39 ; but the writ itself, if in your possession, may 
 be given in evidence ; or if in the possession of the other partj^, then, 
 upon proving the service of a notice upon him to produce it, and 
 that it has been returned and filed, but that it was in the other party's 
 possession after the day on which it was returnable, you will be 
 allowed to give a copy of it in evidence. Edmxmstone v. Plaisted, 4 
 Esp. 160. See Knight v. Dawler, Eardr. 223: Wright v. Pindar, 
 Aleyn, 18. Until the non -production is sufficiently accounted for, 
 parol evidence of its contents is not admissible. Lester v. Jenkins, 
 8 B. & C. 339. 
 
Written, Evidence. 243 
 
 A judgment of the House of Lords is proved by an examined 
 copy of it from the minute-book ; Jones v. Randall, Cxwp. 17 ; which 
 may be had, upon application, at the ofSce of the Clerk in Parlia- 
 ment. 
 
 An allegation, that judgment was " entered up " in an action, is 
 proved by the production of the book from the judgment-office, in 
 which the incipitur is entered. R. v. Gordon, C. & Ma/r. 410. 
 
 Convictions before justices of peace are proved by examined copies, 
 which the clerk of the peace for the proper county will make out for 
 you upon an application for that pui'pose. R. v. Gilkes, 8 B. & C. 
 439. And by stat. 24 <£ 25 Vict. c. 96, s. 116, and 24 <& 25 Vict. c. 97, 
 s. 70, and several other statutes {see the different titles, post. Booh II.), 
 copies of convictions for offences within those acts respectively, 
 certified by the proper officer of the court, or proved to be true 
 copies, shall be sufficient evidence to prove a conviction of a former 
 offence. 
 
 To prove the passing of a fine,'the chirograph is conclusive evi- 
 dence without further proof; Plowd. 110 6; Gilh. Eo. 24; Bull. 
 N. P. 229 ; but if it were necessary to prove the proclamations, that 
 must be done by an examined copy. Gilb. Eo. 25; Doe v. Bluck, 6 
 Tavmt. 485. But see novj the stat. 11 <& 12 Vict. c. 70; and as to 
 Welsh fines, 5 Vict. sess. 2, c. 32, and Doe d. Cadiuoalader v. Price, 16 
 M. & W. 603. A common recovery is proved in the same manner 
 as an ordinary judgment. See stat. 27 Eliz. c. 9 ; 14 G. 2, c. 20, 
 s. 4. 
 
 To prove a deed which has been enroUed, the indorsement of the 
 enrolment is evidence sufficient, without further proof of the deed ; 
 Gilb. Ev. 24, 96 : Sma/rtle v. Williams, 1 Salh. 280 ; amd see Kinners- 
 ley V. Orpe, 1 Doug. 56 : Rowe v. Brenton, 8 B.<& C. 755. But if the 
 deed be lost, it can be proved only by an examined copy of the en- 
 rolment. CHlb. Ev. 25 ; 3 Camp. 20. AU this, however, must be 
 understood of deeds onljr which need enrolment; for if any other 
 deed be enrolled (as, for instance, a bargain and sale for years, or 
 the like), and be afterwards offered in evidence, it must be proved 
 in the ordinary way. Gilh. Ev. 99 ; Page's case, 5 Co. 54 : Goodsan 
 V. Jones, Sty. 545 : Smartle v. Williams, 1 Salk. 280. 
 
 Letters Patent.'] — Letters patent may be given in evidence, without 
 fijrther proof; or they may be proved by exemplifications under the 
 great seal. See 1 Savmd. 189, n. 
 
 2. Matters cpSkSi of Record. 
 
 Proceedings in Parliament.'] — Entries in the journals of the House 
 of Lords and House of Commons may be proved by examined copies 
 fi-om their minute-books ; Jones v. Randall, Coup. 17; 2 Doug. 694 ; 
 or by copies purporting to be printed by the printers to the Crown 
 or to either House of Parliament, without any proof being given that 
 such copies were so printed. 8 <fe 9 Vict. c. 118, s. 3. The journals 
 of the House of Lords have been holden evidence to prove not only 
 an address of the Lords to the King, but the King's answer also. 
 R. y. Solt, 5 T. R. 445: R. v. Franklin, 9 St. Tr. 259. But the reso- 
 lutions of either house, with a view to ulterior proceedings, are no 
 evidence of the facts therein stated: as, for instance, when the House 
 of Commons resolved that a plot against the Government existed, 
 
 m2 
 
244 Written Evidmce. 
 
 the resolution was holden to be no evidence of the existence of such 
 a plot. 4 St. Tr. 39. 
 
 Proceedings in Courts of Equity. 1 — The bill and answer maybe' 
 proved by examined copies : Gilb. Ev. 56: Hennell v. Lyon, 1 5. <6 
 Ald.l^i: Sodglcinsony.WilliSjS Camp. iOl; which maybe obtained 
 from the Clerk of Records and Writs, upon an application for that 
 purpose. In order to prove the answer, you are obliged to give in 
 evidence an examinedcopy of thebiUaswell as of the answer; Oilb. 
 Ev. 55 ; but where it was proved by the proper officer that he had 
 searched diligently in the office for the bill and could not find it, the . 
 court allowed the answer to be read without it. Id. See Ewer v. 
 Ambrose, 4 B. & C. 25: Rowe v. Brenton, 8 B. & C. 765. "Where the 
 bill and answer are recited (as formerly they were) in the decree, 
 the production of the latter is sufficient proof of them. Com. Dig. 
 Evid. (C 1) : Wliarton Peerage case, 12 CI. <S> Fin. 295 : see Blower 
 V. Eollis, 1 C& M. 396. Upon an indictment for perjury alleged 
 to have been committed in an answer, the answer itself must be pro- 
 duced, and it must be proved either that the party was sworn to it, 
 or that the name subscribed to it is his handwriting, and that the 
 name subscribed to the jurat is the name and handwriting of a master 
 , or other person having authority for that purpose. R. v. Morris, 2 
 Burr. 1189 : R. v. Benson, 2 Camp. 508. See R. v. Spencer, Ey. ^ 
 M. 97 ; \ C. & P. 260. And the same as to depositions in equitf;- 
 See, as to the admissibility of decrees and orders in equity, Layloun, 
 V. Crisp, 4 M. & W. 320 ; 8 G. S P. 397: Pim v. Owrell, SM.&W. 
 234: Ludlow v. Charlton, 2 C. & P. 242. It would seem that bills, 
 answers, and depositions in equity may also be proved by copies 
 certified by the Clerk of Records and Writs under 14 & 15 Vict, 
 c. 99, s. 14. Reeoe v. Hodson, 10 Hare, App. XIX., per Wood, 
 V.-C. 
 
 A decree in equity, if it remain in paper, may be proved by an ex- 
 amined copy, together with an examined copy of the bill and answer; 
 but if it have been enrolled, it must be proved by an exemplification 
 under the great seal, which requires only to be produced in evidence, 
 without further proof. 
 
 Proceedings in Courts of Law, not being Records.'] — Rules of court 
 are proved by office copies. Selby v. Harris, 1 Ld. Raym. 745 : 
 Duncan v. Scott, 1 Camp. 102, 471, n.: Sireeter v. Bartlett, 5 C. B. 
 564. It is not necessary to have them examined. A rule of court is 
 evidence that the court have ordered as is therein stated; but it is not 
 evidence of any matters in it which are the mere suggestions of the 
 party who obtained it. Woodroffe v. Williams, 6 Taunt. 19. 
 
 A judge's order maybe proved by the production of the order itself, 
 or by an office copy of the rule by which it has been made a rule of 
 court. Still V. Halford, 4 Camp. 17. And by 8 t6 9 Vict. e. 113, 
 s. 2, all courts, judges, justices, masters in chancery, masters of courts, 
 commissioners judicially acting, and other judicial officers, are thence- 
 forth to take judicial notice of the signature of any of the equity or 
 common law judges of the superior courts at Westminster, attached 
 or appended to any decree, order, certificate, or other judicial or 
 official document. 
 
 Affidavits, being admissions upon oath, are evidence as such against 
 the parties who made them. Gilb. Ev. 51, 56: Harmer v. Davis, 7 
 Taunt. 577. When filed with the clerk of the rules in the Queen's 
 
Written Evidence. 245 
 
 Bench, or with the secondaries in the Common Pleas, they may, it 
 should seem, be proved by office copies ; but if filed with any other 
 officer, such as a filacer, the signer of the writs, etc., they must be 
 proved by examined copies, or produced. All other affidavits not 
 filed can be proved only by production of the affidavits themselves, 
 and by parol evidence of their having been sworn ; Gilb. Ev. 56 ; or, 
 if not proved to be sworn, yet perhaps they may be received as 
 admissions of the deponents, upon proof of their handwriting. See 
 Gilb. Ev. 56. Upon an indictment for perjury in an affidavit, how- 
 ever, the affidavit, if in existence, must in aU cases be produced, 
 whether filed or not, and it must be proved in the same manner as an 
 answer to a bUl in equity under the same circumstances. E. v. 
 James, 1 Show. 397 : Crook v. Dowling, 3 Dougl. 75 : Mees v. Bowen, 
 M'Clel. <S> Y. 383. But upon proof that it has been lost or destroyed, 
 secondary evidence may be given of its contents and of the defend- 
 ant's signature to it. R. v. Milnes, 2F.&F. 10. Where an affidavit 
 purported to have been sworn before a public commissioner, but his 
 commission was not proved, Patteson, J., held the affidavit to be 
 admissible, and that proof of the commissioner's acting was sufficient. 
 R. V. Howard, 1 M. <& Rob. 187. And on the trial of an indictment ' 
 for perjury, assigned on an affidavit sworn in the Queen's Bench, 
 proof of the defendant's signature to the affidavit, and that under a 
 jm-at, " sworn in open court at Westminster Hall, the 10th day of 
 June, 1846," the words, " by the court " were in the handwriting of 
 one of the masters of the comi; of Queen's Bench, was held sufficient 
 evidence of the swearing of the affidavit in that court, without any 
 fijrther proof that the master was in court when the affidavit was 
 swom. R. Y. Turner, 2 C. & K. 732: see also R. v. Spencer, IC. & 
 P. 260. 
 
 A cognovit filed in court may be proved by an examined copy, 
 together with proof of the defendant's signature to the original. 
 Scott V. Lewis, IC.&P. 349. 
 
 Proceedings in the Ecclesiastical, Probate, and Divorce Courts.'] — 
 The libel, answer, depositions, and sentence in the ecclesiastical 
 courts, in matters within their jurisdiction, are proveable in the 
 same manner as the bill, answer, depositions, and decree in equity. 
 See ante, p. 244 ;_ Gilb. Ev. 66, 67 ; Com. Dig., Ev. (C. 3). The sen- 
 tences of the Divorce Court in matrimonial causes are in all cases 
 evidence of the facts they establish, and in all cases conclusive evi- 
 dence, except in suits of jactitation. Duchess of Kingston's case, 11 
 St. Tr. 262 : and see Clewes v. Bathurst, 2 Str. 960, 961 ; Hardw. 
 11, 18. And all decrees and orders, and copies of decrees or orders, 
 of the said court, sealed with its seal, shall be received in evidence. 
 20 & 21 Vict. c. 85, s. 13. 
 
 In an indictment for perjury, it was averred, by way of inducement, 
 that a suit was instituted in the Prerogative Court by A. against B., 
 to dispute the validity of a will : it was held that the production of 
 the original allegations of both parties to the suit, signed by their 
 advocates, and proof of the advocates' signatures, and that they 
 acted as advocates in that court, was sufficient proof of the aver- 
 ment, without the production of the caveat. R. v. Turner, 2 C. & K. 
 732. 
 
 The practice of the ecclesiastical courts may be proved in the 
 courts of common law by parol evidence. Beaurrain v. Scott, 3 
 Camp.m%. 
 
246 Written Evidence. 
 
 The probate of a -will, under the seal of the proper ecclesiastical 
 court, or, since the 11th January, 1858, of the court of Probate, is 
 sufficient evidence to prove a will of personal property, or that J. S. 
 is the executor, or the like ; and the seal of the court sufficiently authen- 
 ticates it, without fui-ther proof Gilb. Ev.ll;! Boll. Abr. 678: R. v. 
 Neiherseal, 4 T. R. 258 : Hoe v. Nelthorpe, 3 Salk. 154 ; Bull. N. P. 
 46: and see Gordon v. Dyson, 1 Brod. & B. 219: R. v. Turner, 1 C.& 
 K. 732. The production of the original will, with the act of the 
 court, ordering probate, is sufficient evidence of the executor's title, 
 without accounting for the non-production of the probate. Cox v. 
 Allingham, 1 Jacob, 514. And where by the practice of an ecclesi- 
 astical court no book was kept, but grants of probate were recorded 
 by a minute indorsed on or entered at the foot of the original will, 
 and written by the officer of the court, it was held that the production 
 of the will, with such minute on it, was sufficient. Doe d. Edwards v. 
 Ounning, 2 Neo. & Per. 260 : Doe d. Basset v. Mew, Id. 266. An 
 examined copy of the act book is also holden to be evidence. Davis v. 
 Williams, 13 East, 232 : Dorrett v. Meux, 15 C. B. 142. The copy 
 of the probate is conclusive evidence in the above cases, that is, the 
 other party should not be permitted to allege that the will proved is 
 not the last will and testament of the deceased; Gilb. Ev. 73 : Chi- 
 chester -v. Phillips, T. Raym. 404-406: Noel v. Wells, Sid. 359; except 
 upon an indictment for forging a will, in which the probate unre- 
 pealed is not conclusive evidence of the validity of the will, so as to 
 bar the prosecution ; R. v. Buttery, R. & R. 342 ; but the prosecutor 
 may give in evidence that the probate is forged, or that it was ob- 
 tained by surprise. Gilb. Ev. 73, 74 ; T. Raym. and Sid., ubi supra. 
 To prove a probate revoked, an entry of the revocation in the assigna- 
 tion book, in which all cases are officially entered, is good evidence. 
 R. V. Ramsbottom, 1 Leach, 25, ra. 
 
 Administration is proved by the production of the letters of 
 administration, or by a certificate from the ecclesiastical coui-t, that 
 administration was granted; Bull. N. P. 246; or you may get a 
 clerk from the court of probate to attend at the trial with the book 
 of acts containing the direction for letters of administration to be 
 granted, and the surrogate's _;&;< for the same; Id.: Elden Y.Eeddell, 
 8 East, 187 : and see Davis v. Williams, 13 East, 232, supra. 
 
 The 20 & 21 Vict. e. 77, s. 22, enacts, that " all probates, letters of 
 administration, orders, and other instruments, and exemplifications 
 and copies thereof respectively, purporting to be sealed with any 
 seal of the court of Probate, shall, in all parts of the United Kingdom, 
 be received in evidence, without further proof thereof." 
 
 Proceedings in the Court of Admiralty.'] — The libel, answer, depo- 
 sitions, and sentence in the Admiralty Court are proved in the same 
 manner as the bill, answer, deposition, and decree of a court of equity. 
 See Com. Dig. Ev. (C. 1). The sentence is conclusive evidence of 
 the facts it establishes, not only against those concerned in interest 
 and persons claiming under them, but also against strangers. Thus, 
 a sentence condemning goods as captured from the enemy is con- 
 clusive evidence that they were so captured. Sterling v. Vaughan, 2 
 Camp. 228. 
 
 Proceedings in Inferior Courts.] — Judgments in a court baron, 
 county court, or other inferior court, may be proved by producing the 
 books in which they are entered; or, it should seem, by examined 
 
Written Evidence. 247 
 
 copies. See Gilb. Ev. 74 ; Com. Dig. Ev. (C. 1). As to the pro- 
 ceedings in the county courts established by the 9 <£ 10 Vict. c. 95, 
 it is enacted by the 111th section of that statute, that the entries in 
 the clerk's book, or a copy thereof beai-ing (or pui-porting to bear; 
 see S & 9 Vict. c. 113, s. 1 ; 14 d: 15 Vict. c. 99, s. 14, post, p. 263) 
 the seal of the court, and purporting to be signed and certified as a 
 true copy by the clerk of the court, shall at all times be admitted 
 in all courts and places whatsoever, as evidence of such entries and 
 of the proceedings referred to by the same, and of the regularity of 
 such proceedings, without further proof. And this is the only proper 
 evidence of such proceedings ; E. v. Rowland, 1 P. & F. 72. 
 
 The court rolls of a manor may be proved by examined copies. 
 Gilb. Eo. 75 : R. v. Eains, Comb. 337 ; 12 Mod. 24 ; or, it seems, by 
 a copy under the steward's hand; Com. 128; 1 Keb. 566, 720; or you 
 may get the steward or his deputy to produce them at the trial. See 
 Gilb. Ev. 75. 
 
 Proceedings in BanliTuptcy.']—^'''Y:\i6 Bankruptcy Act, 1869," 32 & 
 33 Vict. C.71, contains the following provisions as to evidence : — "A 
 copy of an order of the court adjudging the debtor to be bankrupt 
 shall be published in the London Grazette, and be advertised locally 
 in such manner (if any) as may be prescribed [i.e. by nUes of 
 court, to be made as in the act provided, i>. 4, and which when 
 so made are to be judicially noticed, s. 78], and the date of such 
 •order shall be the date of the adjudication for the purposes of this 
 act, and the production of a copy of the Gazette containing such 
 order as aforesaid shall be conclusive evidence in all legal proceed- 
 ings of the debtor having been duly adjudged a bankrupt, and of the 
 date of the adjudication;" s. 10. On an indictment against a bankrupt 
 for an offence against the bankrupt laws before the passing of 32 & 
 -33 Vict. c. 71, it was necessary to prove not only the adjudication 
 but also the other ingredients of the Ijankruptcy, namely, the trading, 
 where that fact was material, the petitioning creditor's debt, where 
 there was a petitioning creditor, and the act of banlcruptcy. R. v. 
 Lands, Dears. 567 ; 25 L. J. (M. C.) 14. This rule was however 
 subject to the following exception, that if a person adjudicated 
 bankrupt took no steps within the prescribed period to annul the 
 adjudication, the Gazette containing the advertisement of the bank- 
 ruptcy was, as against him, under 12 <& 13 Vict. t. 106, s. 233, con- 
 clusive evidence of the bankruptcy in criminal, as well as in civil, 
 proceedings taken against him. R. v. Lenji, L. & C. 597 ; 34 L. J. 
 (M. C.) 174: R. v. Robinson, L. R., 1 C. C. R. 80; 36 L. J. (M. G) 
 78; overruling on this point, R. v. Lyons, 9 Cox, 299. The Gazette, 
 however, was not evidence of the bankruptcy as against third persons; 
 R. V. Robinson, ubi supra; the rule being, that an adjudication of 
 bankruptcy was of no force or effect whatever in any suit, civil or 
 criminal, unless supported by proof of all the acts and requisites 
 essential to its validity, except when it was made conclusive evidence 
 against particular classes of persons, under particular circumstances, 
 by the express provisions of a statute, as by 12 & 13 Vict. c. 106, 
 ss. 233, 234. Per Kelly, C. B., in R. v. Robinson, ubi supra. The 
 32 & 33 Vict. c. 71, s. 10, supra, makes the production of tlie Gazette 
 containing a copy of the order of adjudication conclusive evidence, 
 in all legal proceedings, of the debtor having been duly adjudged a 
 bankrupt and of the date of the adjudication. As the debtor who is 
 duly adjudged bankrupt is a bankrupt, and as he could not have been 
 
248 Wi-Uten Evidence. 
 
 duly adjudged bankrupt unless there was a trading (where that is 
 necessary), a petitioning creditor's debt and an act of bankruptcy, it 
 would appear that in no case is it now necessary in a criminal or 
 civil proceeding, whether against the bankrupt or a third person, to 
 do more than to produce the Gazette in order to prove the fact of 
 bankruptcy, and that it is unnecessary to prove trading, petitioning 
 creditor's debt, or act of banki-uptcy. That this was the intention of 
 the framers of 32 d; 33 Vict. c. 71, may be inferred from the fact that 
 that statute contains no provision resembling ss. 233, 234, 235 of 
 12 d 13 Vict. c. 106, dispensing in certain cases with proof of trading, 
 petitioning creditor's debt, and act of bankruptcy, so that unless s. 10 
 bears the construction above put upon it, it will be necessary in all 
 cases where bankruptcy is to be proved to prove the trading, peti- 
 tioning creditor's debt, and act of bankruptcy. 
 
 " The appointment of a trustee shall be reported to the court, and 
 the court, upon being satisfied that the requisite security has been 
 entered into by him, shall give a certificate declaring him to be 
 trustee of the bankruptcy named in the certificate, and such certifi- 
 cate shall be conclusive evidence of the appointment of the trustee, 
 and such appointment shall date from the date of the certificate. 
 When the registrar holds the ofiice of trustee, or when the trustee 
 is changed, a like certificate of the court may be made declaring 
 the person therein named to be trustee, and such certificate shall be 
 conclusive evidence of the person therein named being trustee ;" 
 32 & 33 Vict. c. 71, s. 18. A copy of the order closing the bank- 
 ruptcy may be published in the London Gazette, and the production 
 of a copy of such Gazette, containing a copy of the order, shall be 
 conclusive evidence of the order having been made, and of the 
 date and contents thereof; s. 47. An order of discharge shall be 
 sufficient evidence of the bankruptcy and of the validity of the 
 proceedings thereon ; s. 49. A copy of the order of the court an- 
 nulling the adjudication of a debtor as a bankrupt shall be forth- 
 with published in the London Gazette, and advertised locally 
 in the prescribed manner, and the production of a copy of the 
 Gazette containing such order shall be conclusive evidence of the 
 fact of the adjudication having been annulled, and of the terms of 
 the order annulling the same; s. 81. "The registrar, or any other 
 person presiding at a meeting of creditors under this act, shall cause 
 minutes to be kept and duly entered in a book of all resolutions and 
 proceedings of such meeting, and any such minute as aforesaid, if 
 puiTporting to be signed by the chairman of the meeting at which 
 such resolutions were passed or proceedings had, shall be received 
 as evidence in all legal proceedings; and, until the contrary is proved, 
 every general meeting of the creditors in respect of the proceedings 
 of which minutes have been so made shall be deemed to have been 
 duly held and convened, and all resolutions passed thereat or pro- 
 ceedings had to have been duly passed and had ;" s. 106. " Any peti- 
 tion or copy of a petition in bankruptcy, any order or copy of an order 
 made by any court having jurisdiction in bankruptcy, any certificate 
 or copy of a certificate made by any court having jurisdiction in 
 bankruptcy, any deed or copy of a deed of arrangement in bank- 
 ruptcy, and any other instrument or copy of an instrument; affidavit, 
 or document made or used in the course of any bankruptcy proceed- 
 ings, or other proceedings had under this act, may, if any such in- 
 strument as aforesaid, or copy of an instrument, appears to be sealed 
 with the seal of any court having jurisdiction, or purports to be 
 
Written Evidmce. 249 
 
 signed by any judge having jurisdiction in bankruptcy under this 
 act, be receivable in evidence in all legal proceedings whatever ;" 
 s. 107. " In case of the death of the bankrupt or his wife, or of a 
 witness whose evidence has been received by any court in any pro- 
 'ceeding under this act, the deposition of the person so deceased, 
 purporting to be sealed with the seal of the court, or a copy thereof 
 purporting to be so sealed, shall be admitted as evidence of the mat- 
 ters therein deposed to;" s. 108. " Every court having jurisdiction 
 in bankruptcy under this act shall have a seal describing such court 
 in such manner as may be directed by order of the Lord Chancellor, 
 and judicial notice shall be taken of such seal, and of the signature 
 of the judge or registrar of any such court, in all legal proceedings ;" 
 s. 109. " The certificate of the registrar in respect of the appointment 
 of any trustee in the case of a liquidation by arrangement shall be 
 of the same eflfect as a certificate of the court to the like effect in the 
 case of a bankruptcy ;" s. 125, par. 6. " The registration by the re- 
 gistrar of a special resolution of the creditors on the occasion of a 
 liquidation by arrangement under Part Six of this act, or of an extra- 
 ordinary resolution of the creditors on the occasion of a composition 
 under the Seventh Part of this act, shall, in the absence of fraud, be 
 conclusive evidence that such resolutions respectively were duly 
 passed, and aU the requisitions of this act in respect of such 
 resolutions complied with ;" s. 127. 
 
 Depositions before Magistrates and Coroners.'] — By the statute 
 11 <& 12 Viet. c. 42, s. 17 (after directing justices to take in manner 
 therein mentioned the statement on oath or affirmation of the wit- 
 nesses appearing against any person charged before them with an 
 indictable offence), it is enacted, that if afterwards, " upon the trial of 
 the person so accused, it shall be proved, by the oath or affirmation 
 of any credible witness, that any person whose deposition shall have 
 been taken as aforesaid is dead, or so ill as not to be able to travel, 
 and if also it be proved that such deposition was taken in the pre- 
 sence of the person so accused, and that he or his counsel or attorney 
 had a fuU opportunity of cross-examining the witness, then, if such 
 deposition purportto be signed by the justice by or before whom the 
 same purports to have been taken, it shall be lawful to read such 
 deposition as evidence in such prosecution, without further proof 
 thereof, unless it shall be proved that such deposition was not in fact 
 signed by the justice purporting to sign the same." And by s. 3 of 
 30 <& 31 Vict. c. 35, it would appear that these provisions extend to 
 depositions taken before justices on behalf of the accused under that 
 section, as it enacts in its concluding words that " upon the trial of 
 such accused person, all the laws now in force relating to the depo- 
 sitions of witnesses for the prosecution shall extend and be applicable 
 to the depositions of witnesses hereby directed to be taken." The 
 words, " so iU as not to be able to travel," do not mean that the 
 witness's coming to give evidence on the trial shall actually endanger 
 his life, but that he is not reasonably fit, firom illness, to attend. M. v. 
 Milei/, 3 C.<&K. 116 : R. v. Cockbum, Dears. & B. 203 ; 26 L. J. 
 (M. C.) 136.yj:t is for the presiding judge at the trial to decide, in / 
 his discretion, whether the evidence that the witness is too iU to 
 travel is sufficient ; R. v. Stephenson, L. & C. 165 ; 31 L. J. (,M. C.) 
 147 ; and such evidence needs not necessarily come from a medical 
 man. lb. Where, however, the only evidence that the person whose 
 deposition it was proposed to put in was so ill as not to be able to 
 
 M 5 
 
250 Written Evidence. 
 
 travel, was that of a police officer, who said that he had that morning 
 seen him in bed and that he had fever, Byles, J., rejected the depo- 
 sition, on the ground that to make it admissible there should be the 
 evidence of a medical man, or other evidence which the court might 
 think of equal value to medical testimony. R. v. Wdton, 9 Coa;, 
 296. It seems to be doubted how far indisposition arising from 
 recent childbirth is an illness within the meaning of the statute ; see 
 R. V. Wilton, IF. S F. 309 (in which case Willes, J., said, " it must 
 not be supposed that the fact of a woman having been delivered nine 
 days ago constitutes an illness within the meaning of the statute; 
 but we have it in evidence that she was delivered of a dead child, 
 which would tend to produce a morbid state of body, and therefore 
 her deposition may be read") : R. v. Walker, Id. 534 (in which case 
 the same learned judge rejected the deposition of a woman who had 
 just been confined, and who it was sworn appeared to be very feeble, 
 and not able to come to the assizes. His lordship is reported to 
 have said in that case that " illness from confinement was an ordi- 
 nary state, and not such an illness as is contemplated by the statute," 
 and that Crowder, J., agreed with him) : R. v. Inhabitants of Sud- 
 dersfield, 1 E.&B. 794 ; 26 L. J. (M. C.) 169 : R. v. Harvey, 4 Cox, 
 441 (in which case the deposition of a woman who had just been 
 confined was admitted, although it was urged that in a very few 
 weeks the woman would almost certainly be able to testify vim 
 voce). In R. v. Stephenson, ubi supra, it was held that there might 
 be incidents in regard to the state of pregnancy which might bring 
 the case within the statute. And Bramwell, B., allowed the deposi- 
 tion of a married woman to be read on the evidence of her husband 
 that she was pregnant and unable to attend ; although he was unable 
 to state how far advanced she was, and she was about the house 
 attending to her household duties as usual, and had prepared break- 
 fast for him that morning, and had not been confined to bed ; but a 
 fortnight before she had suffered in consequence of being driven to 
 the assize town. R. v. Croucher, 3 F. (& F. 285. Where, however, 
 it was proposed, on the authority of R. v. Stephenson, ubi svpra, to 
 put in the deposition of a married woman, who was pregnant, and 
 who was suffering under no other illness, Mellor, S:, said the matter 
 had been much considered by the judges, and the general opinion of 
 the bench was that inability to travel, arising from pregnancy alom, 
 was not such an illness as was contemplated by the 11 & 12 Viet. 
 c. 42, s. 17 : in R. v. Stephenson, the witness was otherwise indisposed. 
 He therefore rejected the deposition. R. v. Parker & Ashworth, 
 York Summer Assizes, 1862, MS. And see R. v. Omant, 6 Cox, 466. 
 The 11 & 12 Vict. c. 42, s. 17, authorizes the reading of the deposi- 
 tion before the grand jury for the purpose of finding the bUl, as well 
 as before the petty jury at the trial ; R. v. Clements, 2 Den. 251 ; 20 
 L. J. (M. C.) 198 ; before, however, the deposition can be read before 
 the grand jury, the presiding judge must, by evidence taken in the 
 presence of the accused, satisfy himself of the existence of the facts 
 required by s. 17 of 11 <& 12 Vict. c. 42, to make such deposition 
 admissible in evidence. R. v. Beaver, 10 Cox, 274, per Byles, J. 
 The deposition is receivable only where the indictment is substan- 
 tially for the same offence as that with which the defendant was 
 charged before the justice. R. v. Ledbetter, Z C. & K. 108. But 
 where the deposition was taken on a charge of felonious wounding, 
 it was held receivable on the trial of the defendant for the murder of 
 the person wounded, who had in the meantime died of the wound. 
 R. V. Beeston, Dears. 405 ; 2iL. J. (M. C) 6. And so, where the 
 
Written Evidence. 251 
 
 deposition was taken on a charge of robbery with violence to the 
 person, it was received on the trial of the prisoner for the murder of 
 the person robbed, he having in the meantime died from the violence. 
 R. V. Lee, A F. & F. 63. See R. v. Radboume, 1 Leach, 457 : R. v. 
 Smith, R. & R. 339. The point is not whether the inquiry before the 
 magistrate was exactly the same as before the judge, but whether 
 that inquiry was such that a full opportunity of cross-examination 
 has been given to the party accused. Per Alderson, B., in R. v. 
 Beeston, ubi supra. Where a witness is so ill as not to be able to 
 travel, the judge may, if he thinks fit, postpone the trial to the next 
 assizes, instead of permitting the deposition to be read under 11 c6 
 12 Vict. c. 42, s. 17. R. v. Tait, 2 F. & F. 553, per Crompton, J. 
 In all cases where there is any doubt as to whether the deposition is 
 a,dmissible in evidence, it would be prudent to apply to the judge for 
 a postponement of the trial. 
 
 Although the former statutes relating to the examination of wit- 
 nesses against a prisoner before justices and coroners (1 tfe 2 Ph. & 
 M.c. 13; 2 £3 Ph. <&M.c. 10; 7 G. 4, c. 64, ss. 2-5) did not contain 
 any express enactment like that contained in 11 & 12 Vict. c. 42, 
 s. 17, it was yet determined in many cases, and recognized as 
 a rule of law, that, where the examinations of witnesses in cases 
 of felony under these statutes were taken in the presence of the 
 accused, and he had the opportunity of cross-examining them, the 
 deposition of any such witness might be read in evidence against the 
 accused on his trial, in case the person who made the deposition 
 were dead ; 1 Sale, 305 ; Bull. N. P. 242 ; or insane (though the 
 insanity were of a temporary natm-e) ; R. v. Marshall, C. & Mar. 
 147 : R. V. Erimell, 3 T. R. 720 ; or if it appeared satisfactorily to 
 the court that he was kept out of the way by means of the procm-e- 
 ment of the defendant ; R. v. Harrison, 4 St. Tr. 492 ; R. v. Morley, 
 Kel. 55; (in which case, however, the deposition is no evidence 
 against other co-defendants, R. v. Scaife, 2 Den. 281 ; 17 Q. B. 238 ; 
 20 L. J. {M. C.) 229 ;) or if he were bed-ridden, or so ill as to be 
 unable to travel. 2 Phill. Ev. 97 ; 1 Hale, 305 ; 2 Hale, 62 ; R. v. 
 Wilskaw, C. & Mar. 145. But they cannot be thus read, if it merely 
 appear that the witness is absent, even if he be resident abroad, and 
 that the prosecutor has in vain used his best endeavours to find him. 
 Kel. 55 ; R. v. Scaife, supra : R. v. Austin, Dears. 612 ; 25 L.J. {M. C.) 
 48. Nor could depositions formerly be read upon an indictment for 
 high treason ; 5 <£ 6 Edw. 6 ; Fast. 337 ; but it would seem that they 
 can now {see 11 (6 12 Vict. c. 42, ss. 1 , 17), at all events under the circum- 
 stances mentioned in s. 17. Depositions before magistrates, to be thus 
 given in evidence, must be taken conformably with the statute, jB. v. 
 Smith, 2 Stark. 211, n. (a), and in the presence of the prisoner, so that 
 he may have an opportunity of cross-examining the witness ; R. v. 
 Paine, 1 Salk. 281 : R. v. Woodcoch, 1 Leach, 500 : PykcY. Crouch, 1 
 Ld. Raym. 730 : R. v. Dingier, 2 Leach, 561 ; 1 Str. 162 ; Bull. N. P. 
 243 ; 1 ffolt, 599 ; 11 tfi 12 Vict. c. 42, s. 17 ; and also in the presence 
 of the justice; R. v. Watts, L. & C. 339; 33 L. J. (M. C.) 63; and 
 nothing should be returned as a deposition, unless the prisoner had 
 an opportunity of knowing what was said, and of cross-examining 
 the party making it. R. v. Arnold, 8 C. <& P. 621 : R. v. Johnson, 2 
 C. & K. 394. But where a deposition was not wholly taken in the 
 presence of the prisoner, but the witness afterwards, in his presence, 
 was resworn, and the deposition repeated, and signed, the judges 
 held that it was, under these circumstances, admissible evidence; 
 
252 Written Evidence. 
 
 for the prisoner had then an opportunity of cross-examining the 
 witness. R. v. Smith, E. d R. 339 ; 2 Starh. 208; 1 Holt, 614: m 
 R. V. Bates, 1 F. & F. 317. In this respect there was foi-nierly sup- 
 posed to be a difference between depositions taken befoi^e a magis- 
 trate and before a coroner ; for the latter were said to be evidence, 
 even though the party accused was not present when they were 
 taken. Bull. N. P. 242 ; 2 PMll. Ev. 91 : per Buller, J., R. v. 
 Eriswell, 3 T.R. 713. The reason, at best a very doubtful one, given 
 for this exception was, that the coroner is an elective officer, ap- 
 pointed on behalf of the public, to make inquiry of matters within 
 his jurisdiction, who therefore is presumed to take the depositions 
 fairly and impartially. Bull. N. P. 242. There is, however, no re- 
 ported case in which this point has been directly determined ; but, 
 although the propriety of this distinction had been questioned (see 2 
 Starh. Ev. 384), the practice nevertheless formerly was to admit such 
 depositions without inquiry whether the party accused was or was 
 not present ; and in one case, R. v. Purefoy, Peahe, Eb. 64, JSotham, 
 B., received depositions taken befoi-e a coroner, although it appeared, 
 and was objected, that the defendant was not present. See Jervis on 
 Cor. 243. But M. Smith, J., in a recent case, refused to admit in 
 evidence the deposition of a witness taken before the coroner, where 
 the prisoner was not present at the inquest when the witness was 
 examined. The dicta and expressions of opinion in favour of a con- 
 trary practice, cited above, were brought on that occasion under his 
 lordship's notice ; but he said that he had no doubt upon the subject, 
 and had no hesitation in rejecting the deposition. R. v. Rigg, Leeds 
 Summer Assizes, 1866, MS., iF.dF. 1085. It may be observed that 
 this ruling is consistent with the opinions expressed by the ablest text 
 writers on the subject. 1 Tayl. Ev. 459, 460 (Ath ed.); 3 Russ. C. 
 & M., hy Greaves, 478 {Uh ed.) ; 2 Stark. Ev. 385 ; 2 Phill. Ev. 76. 
 Depositions taken before the coroner must, in order to be admissible, 
 appear to have been taken before the coroner qua. coroner ; 1 Ch. Cos. 
 306 ; and must be signed by him. R. v. England, 2 Leach, 770 ; 7 
 G. 4, c. 64, s. 4. The depositions must appear also to have been upon 
 oath ; 2 Sale, 284 ; Bull. N. P. 242 ; but it is not necessaiy that 
 they should be signed by the witness. R. v. Flemming, 2 Leach, 864, 
 A deposition taken before a coroner may be proved by the coroner, 
 or by any person who can prove the coi-on'er's signature, and that the 
 witness was sworn, and that the prisoner was present and had an 
 opportunity of cross-examining the witness. 7 O. 4, c. 64, s. 4 ; 1 
 Tayl. Ev. 459 (ith ed.). 
 
 Where several depositions were taken on one sheet of paper, and 
 at the foot of the whole was written " sworn before me," with the 
 signature of the magistrate, the depositions previous to the last were 
 held to be receivable in evidence. R. v. Osborne, 8 C.& P. 113. 
 And it is now settled that although all the depositions are not taken 
 on one sheet of paper, it is not necessary that each deposition should 
 be signed by the magistrate taking it; and therefore, where a 
 number of depositions taken at the same hearing on several sheets 
 of paper are fastened together and signed by the magistrate taking 
 them once only at the end of all the depositions, in the form given 
 in the Schedule (M.) to 11 db 12 Vict. c. 42, one of these depositions 
 is admissible in evidence, after the death of the witness making it, 
 although no part of it is on the sheet signed I)y the magistrate. B. 
 •V. Parker, L. R., 1 C. C. R. 226; 39 L. J. (if. C.) 60 ; in accordance 
 with R. V. Young, 3C.&K. 106, and R. v. Lee, AF.SF. 63, and over- 
 
Written Emdence. 253 
 
 ruling R. v. Richards, iF.SF. 860. In S. v. Parker, ubi supra, the 
 case stated by the learned judge states that "the deposition in ques- 
 tion was the second of four depositions made at the same hearing, 
 all of which were pinned together." It does not state, however, 
 whether any proof was given at the trial whether the depositions 
 were pinned together at the time of the signature by the magistrate, 
 although Mr. Justice Byles, in his judgment as reported 39£. J. (M. C), 
 at p. 62, says, "the different sheets appear to have been attached 
 together at the time of the signature." In a former case, however, 
 it was held to be clear, that if the depositions are on separate sheets, 
 and no distinct proof be given of their having been fastened together 
 at the time when the last was signed, those bearing no signature 
 will be rejected. E. v. France, 2 M. & Rob. 207, per Alderson and 
 Parhe, BB. But in a recent case, where the depositions were on 
 separate sheets, and were signed only at the end by the magistrate, the 
 deposition of one of the witnesses who was dead was admitted in evi- 
 dence, although it seems that the sheets were not fastened together 
 at the time of the signature by the magistrate, but had been afterwards 
 attached together by the magistrate's clerk. R. v. Lee, 4:F.&P. 63, 
 per Pollock, C. B. Depositions taken in cross-examination, at a sub- 
 sequent time to those in chief, and not signed by the magistrate, 
 were held to be so irregular as to prevent the whole depositions 
 from being read against the prisoner ; although both were sworn by 
 the magistrate to have been accurately taken. R. v. France, 2 M. 
 & Rob. 207. The depositions may also be given in evidence by the 
 defendant, in cases where the witnesses appear, in order to show 
 some material variance between their evidence at the trial and 
 before the magistrate; and may be read by the prosecutor, as it 
 would seem, and certainly by the judge, to impeach the credit of 
 a witness, who gives evidence contradicting statements contained 
 in the deposition made by such witness in a former proceeding ' 
 in the same case. R. v. Oldroyd, R. & R. 88. It is not neces- 
 sary, to make the depositions evidence, that each should have a 
 separate caption or heading ; a general caption or heading at the 
 head of the body of depositions sufficiently shows that they were all 
 taken under the statute. R. v. Johnson, 2 C.& K. 355. Indeed, it 
 seems that a deposition is good without any caption, if it be described 
 as the examination of the witness, and the evidence contained in it 
 be relevant to the charge. R. v. Langhridge, 1 Den. 448 ; 2 C.SK. 
 975; 1SL.J.(M.C.)W8: but see R. y. Newton, I P. ,& F. 64:1, where it 
 was held by Sill, J., after consulting Watson, B., that a deposition 
 without caption could not be given in evidence. R. v. Langbridge, 
 ubi mpra, was not cited in this case, but R. v. Newton was recog- 
 nized and followed in R. v. Johnson Metcalfe, York Spring Assizes, 
 lB62,hyMellor,3.,MS. 
 
 The failure of justice intended to be guarded against by s. 17 of 
 11 <£ 12 Vict. c. 42, has been still further remedied by s. 6 of 30 (6 31 
 Vict. c. 35, which, after recitirj.g that by s. 17 of 11 & 12 Vict. c.4:2,U 
 is permitted, under certain circumstances, to read in evidence on the trial 
 of an accused person the deposition, taken in accordance with the said 
 act, of a witness who is dead, or so ill as to be unable to travel, and that 
 it may happen that a person dangerously ill, and unable to travel, may 
 be able to give material and important information relating to an indict- 
 able offence, or to a person accused thereof, and it may not be practi- 
 cable or permissible to take, in accordance with the provisions of the said 
 act, the examination or deposition of the person so being ill, so as to 
 
254 Written Evidence. 
 
 make the same available as evidence in the event of his or her death 
 before the trial of the accused person, and that it is desirable in the inte- 
 rests of truth and justice that means should be provided for perpetuating 
 such testimony, and for rendering the same available in the event of the 
 death of the person giving the same, — enacts that, whenever it shall be 
 made to appear to the satisfaction of any justice of the peace that 
 any person dangerously ill, and, in the opinion of some registered 
 medical practitioner, not likely to recover from such illness, is able 
 and willing to give material information relating to any indictable 
 offence, or relating to any person accused of any such oflFence, and it 
 shall not be practicable for any justice or justices of the peace to 
 take an examination or deposition in accordance with the provisions 
 of the said act of the person so being ill, it shall be lawful for the 
 said justice to take in writing the statement on oath or afSriflation of 
 such person so being ill, and such justice shall thereupon subscribe 
 the same, and shall add thereto by way of caption a statement of his 
 reason for taking the same, and of the day and place when and where 
 the same was taken, and of the names of the persons (if any) present 
 at the taking thereof; and, if the same shall relate to any indictable 
 - oflFence for which any accused person is already committed, or bailed 
 to appear for trial, shall transmit the same, with the said addition, to 
 the proper oflicer of the court for trial at which such accused person 
 shall have been so committed or bailed ; and in all other cases he 
 shall transmit the same to the clerk of the peace of the county, divi- 
 sion, city, or borough in which he shall have taken the same, who is 
 hereby required to preserve the same, and file it of record ; and if 
 afterwards, upon the ti-ial of any offender or oflFence to which the 
 same may relate, the person who made the same statement shall he 
 proved to be dead, or if it shall be proved that there is no reasonable 
 probability that such person will ever be able to travel or to give 
 evidence, it shall be lawful to read such statement in evidence, either 
 for or against the accused, without further proof thereof, if the same 
 purports to be signed by the justice by or before whom it purports to 
 be taken, and provided it be proved to the satisfaction of the court 
 that reasonable notice of the intention to take such statement has 
 been served upon the person (whether prosecutor or accused) against 
 whom it is proposed to be read in evidence, and that such person, or 
 his counsel or attorney, had or might have had, if he had chosen to 
 be present, full opportunity of cross-examining the deceased person 
 who made the same. Section 7 points out the mode in which a pri- 
 soner in actual custody, who shall have served, or shall have received 
 notice of an intention to take such statement, may have an oppor- 
 tunity of being present when it is taken. 
 
 The act " for enabling persons indicted for felony to make their 
 defence by counsel or attorney " (6 <£ 7 Will. 4, c. 114) provides, by 
 s. 3, that all persons who shall be held to bail or committed to prison 
 (which means finally committed for trial, and does not apply to per- 
 sons committed for further examination only; JR. v. Lord Mayor of 
 London, 5 Q. B. 555; Dav. & M. 484 : Ex parU Fletcher, 13 £. /. 
 (M. C.) 67, S. C.) for any offence against the law, shall be entitled to 
 require and have on demand (irom the person who shall have the 
 lawful custody thereof, and who is thereby required to deliver the 
 same) copies of the examinations of the witnesses respectively upon 
 whose depositions they have been so held to bail or committed, on 
 payment of a reasonable sum for the same, not exceeding lid. for 
 each folio of ninety words : provided, that if such demand shall not 
 
Written Evidence. 255 
 
 be made before the day appointed for the commencement of the 
 assizes or sessions at which the trial is to take place, such person 
 shall not be entitled to have any copy of such examination of wit- 
 nesses, unless the judge or oth^r person to preside at such trial shall 
 be of opinion that such copy may be made and delivered without 
 delay or inconvenience to such trial ; but it shall nevertheless be 
 competent for such judge, etc., if he shall think fit, to postpone such 
 trial on account of such copy of the examination of witnesses not 
 having been previously had by the party charged. And, by s. 4, all 
 persons under trial are entitled, at the time of their trial, to inspect, 
 without fee or reward, all depositions (or copies thereof) which liave 
 been taken against them, and returned into the court before which 
 such trial shall be had. A similar provision is also contained in the 
 27th section of the stat. 11 t6 12 Vict. e. 42; namely, "that at any 
 time after all the examinations aforesaid (that is, of witnesses against 
 a person charged with an indictable offence) shall have been com- 
 pleted, and before the first day of the assizes or sessions, or other 
 first sitting of the court at which any person so committed to prison 
 or admitted to bail as aforesaid is to be tried, such person may re- 
 quire, and shall be entitled to have, of and from the officer or person 
 having the custody of the same, copies of the depositions on which 
 he shall have been committed or bailed, on payment of a reasonable 
 sum for the same, not exceeding at the rate of lid. for each folio of 
 ninety words." The accused is also entitled to copies of the exami- 
 nations of witnesses examined before the justices on his behalf, under 
 s. 3 of 30 <^ 31 Vict. c. 35, as it is enacted by s. 4 of the same statute, 
 that all the provisions of 11 <£• 12 Vict. c. 42, for giving the accused 
 person copies of the examinations shall be read and shall have opera- 
 tion as part of the 30 S 31 Vict. c. 35. These acts do not make it 
 compulsory on the magistrate, any more than it was before, to return 
 all the depositions which have been taken against a prisoner, as well 
 those of witnesses who have not been bound over to give evidence as 
 of those who have; but the judges have intimated on several oc- 
 casions that it is proper that they should do so, and also that they 
 should return a full statement of all that the witnesses said, not 
 merely of so much thereof as they deem material ; so much time 
 having been occupied, since the passing of this act, in endeavouring 
 to establish contradictions between the testimony of the witnesses 
 and their depositions, in the omission of minute circumstances in 
 their statements before the magistrates. See R. v. Simims, 6 C. S 
 P. 540 : B. v. Fuller, 7 C. & P. 269 : B. v. Grady, Id. 650 : R. v. 
 Coveney, Id. 667: jB. v. Thomas, Id. 817. As these statutes obviously 
 apply only to the case of a person bailed or committed to prison ibr 
 some oflfence for which he is to be tried, and with a view of enabling 
 him to prepare for trial, they do not, therefore, extend to the case of 
 a person committed to prison for default of sureties to keep the peace, 
 and who has been discharged by the sessions. Eso parte Humphrys, 
 19 L. J. (M. C) 189. A prisoner is not entitled, under these sta- 
 tutes, to a copy of his own statement returned by the magistrates, but 
 only to a copy of the depositions of the witnesses. B. v. Aylett, 
 8 C. &. P. 669. And the reading, on the part of the prosecution, 
 of the prisoner's statement, returned with the depositions, does not 
 give the prisoner the right to consider the depositions as in evi- 
 dence on the part of the prosecution, though it appear that they were 
 aU taken before such statement was made T but iif the prisoner wishes 
 
256 Written Evidence. 
 
 to have the whole or any particular part of the depositions read, he 
 must read it as his evidence. R. v. Pearson, T C. & P. 671. 
 
 It may be observed, that the judges have power, by their general 
 authority as a court of justice, to order a copy of depositions taken 
 before a coroner to be given to a prisoner indicted for the murder of 
 the party, concerning whose death the inquiry took place before the 
 coroner, although in a case where the coroner could not have been 
 compelled to return them under the 7 G. 4, c. 64, s. 4. Ex ywiie 
 Greenaere, 8C.&P. 32. See R. v. Walford, SC.c&P. 767. 
 
 As to the right of cross-examination on the depositions, see 
 post. 
 
 If the witness have been examined abroad, under the stats. 13 0. 3, 
 c. 63, or 1 Will. 4, c. 22, and have there proved original documents, 
 those documents themselves must be transmitted and given in evi- 
 dence in this country : copies are not admissible. R. v. Douglas, 1 
 
 c.c&E.em. 
 
 Depositions taken before Justices and Consular Officers under Mer- 
 chant Shipping Act.']— By 17 <& 18 Vict. c. 104 (The Merchant Ship- 
 ping Act, 1854), s. 270, " whenever in the course of any legal pro- 
 ceedings instituted in any part of her Majesty's dominions before any 
 judge or magistrate, or before any person authorized by law or by 
 consent of parties to receive evidence, the testimony of any witness 
 is required in relation to the subject-matter of such proceeding, then, 
 upon due proof, if such proceeding is instituted in the United King- 
 dom, that such witness cannot be found in that kingdom, or, if in any 
 British possession, that he cannot be found in the same possession, 
 any deposition that such witness may have previously made on oath 
 in relation to the same subject-matter before any justice or magis- 
 trate in her Majesty's dominions, or any British consular officer 
 elsewhere, shall be admissible in evidence subject to the following 
 restrictions: (that is to say,) 1. If such deposition was made in the 
 United Kingdom, it shall not be admissible in any proceedings insti- 
 tuted in the United Kingdom ; 2. If such a deposition was made in 
 any British possession, it shall not be admissible in any proceeding 
 instituted in the same British possession ; 3. If the proceeding is 
 criminal, it shall not be admissible unless it was made in the pre- 
 sence of the person accused. Every deposition so made as aforesaid 
 shall be authenticated by the signature of the judge, magistrate, or 
 consular officer before whom the same is made; and such judge, 
 magistrate, or consular officer shall, when the same is taken in a 
 criminal matter, certify, if the fact is so, that the accused was pre- 
 sent at the taking thereof, but it shall not be necessary in any case 
 to prove the signature or official character of the person appearing 
 to have signed any such deposition ; and in any criminal proceeding 
 such certificate as aforesaid shall, unless the contrary is proved, be 
 sufficient evidence of the accused having been present in manner 
 thereby certified. But nothing herein contained shall affect any 
 case in which depositions taken in any proceeding are rendered 
 admissible in evidence by any act of parliament, or by any act or 
 ordinance of the legislature of any colony, so far as regards such 
 colony, or to interfere with the power of any colonial legislature 
 to make such depositions admissible in evidence, or to interfere 
 with the practice of any court in which depositions not authenti- 
 cated as hereinbefore mentioned are admissible." Where witnesses 
 
Written Evidence. 257 
 
 whose evidence had been taken abroad by a British vice-consul 
 under this section were the officers of a British sailing-vessel, which 
 was stated by a clerk in the office of the registrar-general for sea- 
 men, from his examination of official records, never to have been in 
 this country, this was held to be sufficient evidence that the witnesses 
 could not be found in the United Kingdom, and as the depositions 
 purported to be taken in the presence of the prisoner and of the 
 British vice-consul, and also to be signed by the latter, they were 
 admitted in evidence. jB. v. Conning, 11 Cox, 134: see also B. v. 
 Anderson, 11 Cox, 154. 
 
 Proceedings in Foreign Courts, etc.'] — Before the statute, 14 S 15 
 Vict. c. 99, the judgments, etc. of foreign courts must have been 
 proved by exemplifications under the seal of the court, and evidence 
 must also have been given that the seal affixed to the exemplification 
 was in fact the seal of the com-t. Henry v. Ad^, 3 East, 221 : see 
 Alves V. Bunhury, 4 Camp. 28 : Cavan v. Stewart, 1 Stark, bib : Ap- 
 pletone v. Brayhrooh, 2 Starh. 6: 6 M. & Sel. 34: Plindt v. Atkins, 3 
 Camp. 215, m.: Alivon v. Fumival, 1 C, M. & M. 277. But, by the 
 7th section of the above statute, all judgments, decrees, orders, and 
 other judicial proceedings of any court of justice in any foreign state, 
 or in any British colony, and all affidavits, pleadings, and other legal 
 documents filed or deposited in any such court, may be proved in 
 any court of justice, or before any person having by law or by con- 
 sent of parties authority to hear, receive, and examine evidence, 
 either by examined copies or by copies purporting either to be sealed 
 with the seal of the foreign or colonial court to which the original 
 document belongs, or in the event of such court having no seal, to 
 be signed by the judge, or, if there be more than one judge, by any 
 one of the judges of the said court ; and such judge shall attach to 
 his signature a statement in writing on the said copy that the court 
 whereof he is a judge has no seal, which copies shall be admitted in 
 evidence without any proof of the seal or signature, or of the judicial 
 character of the person appearing to have made such signature and 
 statement. See R. v. Newman, Dears. 85. 
 
 Records of the courts in Ireland might, independently of this 
 statute, be proved by examined copies, etc., in the same manner as 
 the records in this country; but see Harrisy. Saunders, iS.d: C. 411. 
 It was necessary, however, that the court should be satisfied that it 
 was with a record the copy was examined; and therefore, where the 
 witness produced to prove the copy stated that he examined it with 
 a parchment roll»shown to him in a room over the Pour Courts at 
 Dublin, without seeing from whence it was taken, or knowing the 
 person who produced it to be an officer of the court, Lord Ellen- 
 borough refused to receive it in evidence. Adamthwait v. Synge, 4 
 Camp. 372; 1 Stark 183. 
 
 As to the Proof of the Laws of a Foreign Country.] — The law of a 
 foreign country, whether written or unwritten, must be proved by 
 the oral testimony of witnesses of competent skill, and cannot be 
 proved in the case of written law by the production of the written 
 law itself, or of an authenticated copy. Sussex Peerage case, 11 CI. 
 & Fin. 8b, 114—117: Baron de Bode's case, 8 Q. B. 208, 250-267. 
 The witness to prove a foreign law must be a person peritus virtute 
 officii, or virtute professionis. Sussex Peerage case, 11 CI. (S> Fin. 85, 
 134. A Roman Catholic bishop, who held in this country the office 
 of a coadjutor to a vicar apostolic, and as such was authorized to 
 
258 Written Evideiwe. 
 
 decide on cases affected by tlie la-w of Rome, was therefore held, in 
 virtue of his office, to be a witness admissible to prove the law of 
 Rome as to marriage. Sussex Peerage case, 11 CI. & Fin. 85, 117. 
 But a witness whose knowledge of the law of a foreign country- 
 is derived solely from his having studied it at a university in 
 another country, is not a good witness to prove it. Bristow v. 
 Sequeville, 5 Exch. 275. A witness competent to give evidence 
 on a point of foreign law may refer to foreign law books to refresh 
 his memory, or to correct or confirm his opinion, but the law itself 
 must be taken from his evidence. Sussex Peerage case, supra. 
 The law of a foreign country may also be ascertained by the court 
 here by obtaining an opinion on the subject from a superior court of 
 the country whose law is in question. 22 S 23 Vict. c. 63; 24 ^fc 25 
 Vict. c. 11. 
 
 The acts of State of a foreign government or British colony may 
 be proved by copies examined with the public archives abroad; a 
 copy printed and published abroad, by the authorized printer of the 
 foreign government or colony, will not, it seems, be sufficient. 
 Richardson v. Anderson, 1 Camp. 65, n. They may also be proved 
 by copies purporting to bear the seal of the foreign State or colony. 
 (14 & 15 Vict. c. 99, s. 7.) 
 
 Surveys, Inquisitions, etc."] — ^Inquisitions taken by virtue of the 
 Queen's writ, or of a commission under the seal of the Exchequer, 
 etc., are proved by the production of the writ or commission and in- 
 quisition, or by an examined copy thereof, if they have been retmned 
 and filed; and indeed it may be questionable whether they can be 
 evidence at all, until returned and filed. 2 Phil. Ev. 125: Corrdshy. 
 Searell, 8 B. d; C. All. 
 
 Public surveys, taken by officers acting for the crown, many of 
 which are to be found in the Exchequer, are proved by the produc- 
 tion of them by the proper officer, without further proof, or by ex- 
 amined copies. 2 Phil. Ev. 153. 
 
 Domesday-book, when evidence (see 1 Starh. Ev. 236), must be 
 produced at the trial, if intended to prove the gist of the pleading; 
 JSob. 188; but if intended to prove some collateral matter merely, 
 an examined copy of that part of the book relating to it will be 
 sufficient. 
 
 Registers, etc.'] — ^Christenings, marriages and burials may be proved 
 by the parish register in which they are entered, by giving in evi- 
 dence either the i-egister itself or an examined copy of it, Gilb. Em. 
 72; 2 Bac. Ahr. Ev. (P.); 14 d; 15 Vict. c. 99, s. 14, the original 
 being in the proper custody, that is, in the church itself, or in the 
 custody of the rector, vicar, curate, or other officiating ministei!,:'62 
 G. 3, c. 146; Doe v. Fowler, 14 Q. B. 700: see Walker v. Cbanfess 
 Beauchamp, Q C (& P. 552; or a copy certified by the incumbent or 
 other person to whose custody the original register is entrusted, 
 under 14 cfe 15 Vict. c. 99, s. 14; post, p. 263. Besides the register, 
 some proof must be given of the identity of the parties married, etc. 
 Birt V. Barlow, 1 Dougl. 170. By the 6 ^ 7 W. 4, c. 86, «. 38, cer- 
 tified copies of entries sealed or stamped with the seal of the register 
 office established by that act are to be received as evidence of the 
 birth, death or marriage to which they relate, without further or 
 other proof of the entry. And by the stat. 3 <£ 4 Vict. c. 92, s. 6, all 
 registers and records deposited in the General Register Office by 
 virtue of that act [non-parochial registers] , except the registers and 
 
Written Evidence. 259 
 
 records of baptisms and mamages at the Fleet and King's Bench 
 prisons, at May-faii-, at the Mint in Southwark, etc., which were de- 
 posited in the Registry of the Bishop of London in the year 1821 
 (see s. 20), shall be deemed to be in legal custody, and be receivable 
 in evidence in all courts of justice : and provision is made for the 
 production of them by the registrar-general. And s. 17 expressly 
 provided, that in all criminal cases the original register or record 
 should be produced : but see now 14 <& 15 Vict. c. 99, s. 14, post, p. 
 263. See also 21 d 22 Vict. c. 25, ss. 1—3. 
 
 The Fleet books are not evidence of a marriage ; Bead v. Passer, 
 PeaJce, 332; or for any purpose. Doe d. Davies v. Gatacre, 8 C.<& P. 
 578. SeeB <& i Vict. c. 92, s. 6, supra. The marriage of Jews is by 
 a written contract, which is afterwards solemnly ratified in the syna- 
 gogue. In order to prove such a marriage, it is not sufficient, it 
 seems, to prove the religious ceremony by the parol testimony of 
 some person who was present, but the contract must also be proved. 
 Horn V. Noel, 1 Camp. 61. 
 
 The register of the navy, with the letters Dd. opposite to a name 
 therein registered (it being proved to be the practice of the navy 
 office to write these letters opposite to the names of such persons as 
 died), was holden admissible evidence of the death of a man oppo- 
 site to whose name these letters were written. Bull. N. P. 249: P. 
 V. Rhodes, 1 Leach, 24. 
 
 By stats. 14 & 15 Vict. c. 99, s. 12, and 17 & 18 Vict. c. 104, s. 107, 
 every register of a British ship may be proved in any court of justice, 
 or before any person having bylaw or by consent of parties authority 
 to receive evidence, either by the production of the original or by an 
 examined copy thereof, or by a copy thereof purporting to be certified 
 under the hand of the registrar or other person having the charge of 
 the original, which certified copy he is thereby required to furnish to 
 any person applying at a reasonable time for the same, upon payment 
 of the sum of one shilling; and every such register or copy, and 
 also every certificate of registry of any British ship, purporting to be 
 signed by the registrar or other proper officer, shall be received in 
 evidence in any court of justice, etc., Sl& prima facie proof of aU the 
 matters contained or recited in or indorsed on such register or copy, 
 or certificate of registry, respectively. 
 
 As to the admissibility and effect of The Law List, see 23 & 24 
 Vict. c. 127, s. 22. Upon an indictment for obtaining money by a 
 false pretence made by the defendant that ho was an attorney, it is 
 not necessary to prove the negative in any other way than by the 
 production of the Law List, in which the defendant's name does not 
 appear as an attorney, as 23 & 24 Vict. c. 127, s. 22, makes the Law 
 List evidence, and casts the burthen of proving its inaccuracy on the 
 defendant. R. v. Wenham, 10 Cox, 222. As to the admissibility 
 and effect of a printed copy of The Medical Register, see 21 S 22 
 Vict. c. 90, s. 27; and as to the admissibility and effect of a printed 
 copy of The Register of Pharmaceutical Chemists and Chemists and 
 Druggists, see 31 <& 32 Vict. c. 121, s. 13. 
 
 The prison books of the Fleet and Queen's prisons are admissible 
 evidence to prove the time at which a prisoner was committed or 
 discharged; R. v. Aikes, I Leach, 591; but they are not admis- 
 sible to prove the cause of commitment. Salte v. Thomas, 3 Bos. <& 
 P. 188. 
 
 The poll books of a parliamentary election are also admissible 
 evidence, and may be proved by an examined copy. Mead v. Ro- 
 binson, Willes, 424: Brocas v. Mayor of London, 1 Str. 307; and by 
 
260 Written Evidence. 
 
 6 Vict. c. 18, s. 94, " office copies, issued by the clerk of the crown or 
 his deputy, of such poll books, shall be taken in evidence in all 
 courts of la-w, in actions for bribery or personation, or for any other 
 purpose whatsoever." An entry in a family Bible, an examined 
 copy of an inscription on a tombstone, a pedigree hung up in a 
 family mansion, and the like, are admissible evidence in questions of 
 pedigree. Goodright y. Moss, Cowp. 591: and see 4 Camp. 401; T. 
 Maym. 84. 
 
 On the trial of an indictment for the non-repair of a highway, 
 entries in an ancient parish book, produced by the churchwarden 
 from the parish chest, were held receivable in evidence to show who 
 were the surveyors of the highways at that time. R. v. Inhabitants 
 of Pembridge, C. (& Mar. 157. 
 
 Certificates, etc.'] — The certificates of bishops with respect to mar- 
 riage, general bastardy, excommunication orders, and other the like 
 matters, are received in evidence; Co. Litt. 74: R. v. Mawhey, 6 T. 
 R. 637 ; so were the certificates of the judges in Wales respecting 
 the practice of their courts, 6 T. R. 638; and so are the certifi- 
 cates of justices of peace as to a highway being in repair. 6 T. B. 
 619. 
 
 But the certificate of a British consul abroad is not admissible as 
 evidence in the courts of this country. Waldron v. Coam.be, 3 Taunt. 
 162: Ex parte Church, 1 D. <& R. 324. 
 
 The certificates authorizing attorneys to practise, granted in pur- 
 suance of 23 & 24 Vict. c. 127, are, it seems, admissible in evidence 
 without further proof. An extract from the roll of attorneys kept by 
 the registrar, certified under the hand of the secretary of the Incor- 
 porated Law Society, is evidence of the facts appearing in such 
 extract. 23 & 24 Vict. c. 127, s. 22. 
 
 The mere production of a diploma of doctor of physic, under the 
 seal of one of the universities, is not of itself evidence to show that 
 the party therein named is entitled to that degree. Moises v. Thorn- 
 ton, 8 T. R. 303. See Collins v. Carnegie, 3 Nev. & M. 703; 1 A. 
 <& E. 695. And although, by stat. 6 G. 4, c. 133, s. 7, the common 
 seal of the Society of Apothecaries of the city of London shall be 
 received as sufficient proof of the authenticity of the certificate to 
 which the seal is affixed, it must formerly have been proved to be 
 the genuine seal of the society. Chadwick v. Running, Ry. & M. 
 306. Proof of the genuineness of the seal is, however, now unneces- 
 sary. 14 (& 15 Vict. c. 99, s. 8. A certified copy under the hand of 
 the registrar of the general medical council, or of any branch council 
 of the entry of the name of any person on the general or local 
 medical register, is evidence that such person is registered under The 
 Medical Act, 21 <& 22 Vict. c. 90, s. 27. A certificate under the hand 
 of the registrar, and countersigned by the president or two members 
 of the council of the Pharmaceutical Society, is evidence that the 
 person therein specified is registered according to the provisions of 
 15 & 16 Vict. c. 56, or of the Pharmacy Act, 1868, as the case may 
 be. 31 <:6 32 Fici. c. 121, «. 13. 
 
 The certified copy of the return forwarded to the stamp-office, 
 under the Joint-Stock Banking Act, 7 G. 4, c. 46, s. 4, stating J. S. 
 to be the public officer of the particular banking company, is not 
 made exclusive evidence of that fact. R. v. Carter, 1 Dem. 65: 1 C. 
 & K. 741. 
 
 By stat. 7 c6 8 Viet. c. 101, s. 71, a copy of any rule, order, or regu- 
 lation made by the Poor Law Commissioners, printed by the Queen's 
 
Written Evidence. 2G1 
 
 printer, shall, after the lapse of fourteen days fromthe date thereof, 
 be received in evidence, and judicially taken notice of, and shall, 
 until the contrary be shown, be deemed sufficient proof that such 
 order was duly made and is in force. 
 
 In any criminal or civil proceedings in relation to corrupt practices 
 at parliamentary elections, the certificate of the returning officer 
 shall be sufficient evidence of the due holding of the election, and_ of 
 any person therein named having been a candidate thereat. 26 Vict. 
 c. 29, s. 6. 
 
 See also, as to documents issued by the Board of Trade under the 
 Merchant Shipping Act, 17 S 18 Vict. c. 104, ss. 7, 8. 
 
 Ancient Terriers, etc.'] — Ancient terriers, surveys, and maps of 
 manors, etc., when evidence, must be produced at the trial, and 
 such circumstances connected with them stated in evidence as 
 may induce the court and jury to give credit to them. See 2 Phil. 
 Eu. 152. 
 
 Corporation Books, etc.'} — Entries in corporation books, and in the 
 books of public companies, relating to things public and gejieral, and 
 entries in other public books, may be proved by examined copies. 
 R. V. Moihersell, Str. 93, 307: Mercers of Shrewsbury v. Sort, 1 C.cfc 
 P. 114. Entries in the books of the Custom-house, of the Bank, and 
 of the East India Company, of the South Sea Company, or the like, 
 may be proved in the same manner. See Geery v. Hopkins, 2 Ld. 
 Raym. 851 : 'Warriner v. Qiles, 2 Str. 264, 1005: Edwards v. Vesey, 
 Eardw. 128 ; 2 Doug. 593, n. 8 : Breton v. Cope, Peaks, 80 : Hodg- 
 son V. Fullarhm, 4 Taurct. 787 : Mortimer v. M'Callan, 6M.SfV. 58. 
 But instruments of a private nature, such as a letter found in the 
 corporation chest, R. v. Gwyn, 1 Str. 401, or the like, must be proved 
 in the ordinary way as any other instrument. 
 
 Inspection of corporation books and other public writings is 
 granted in civil actions, but not in criminal cases, where it would 
 have the effect of making a defendant furnish evidence to criminate 
 himseE R. v. Heydon, 1 W. Bl. 351 : R. v. Pumell, Id. 37 : 1 'Wils. 
 239 ; 1 Ld. Raym. 705 ; 2 Id. 927 ; 2 Str. 1210. 
 
 Public Acts o/yStote.]— The Q-azette, printed and published by the 
 Queen's printer, is evidence of all acts of State. R. v. Holt, 5 T. R. 
 436. Therefore, a G-azette, which stated that addresses had been 
 presented to the King from several bodies of his subjects, expressive 
 of their loyalty, was hblden to be evidence of that fact. Id. See 
 R. V. Gardner, 2 Camp. 513. It is not evidence of a private matter 
 contained therein, unless it be shown that the party to be affected has 
 read the article. Harratt v. 'Wise, ^ B. & C. 712. The mere pro- 
 duction of the Gazette would seem to be sufficient, without proof that 
 it waa bought at the Gazette office, or from whence it came. R. v. 
 Forsyth, R. & R. 277. And where a stat. (12 & 13 Vict. c. 106, s. 240) 
 enacted that " a copy of the London Gazette" should be evidence, it 
 was held to be sufficient merely to produce a paper purporting to be 
 the London Gazette, and to be printed by authority, although it did 
 not purport to be printed by the Queen's printer. R. v. Raudnitz, 
 11 Coo;, 360. _ But where a stat. (11 Vict. c. 2, s. 21) enacted that 
 " the production of the Dublin Gazette, pu/rporting to be printed by the 
 Queen's printer," should be evidence, it was held not sufficient to 
 produce a paper purporting to be the Dublin Gazette and to be 
 
262 Written Evidence. 
 
 printed by authority by A. B., but without giving his style as Queen's 
 printer. S. v. Wallace, 10 Cox, 500; 17 Ir. Com. Law Rep. 207. 
 
 Where a proclamation recited that it had been represented that 
 certain outrages had been committed in different parts of certain 
 counties, and offered a rewai-d for the discovery and apprehension of 
 the offenders, it was holden to be admissible evidence to prove an 
 introductory averment in an information for a libel, that divers acts 
 of outrage had been committed in those places. JR. v. SuUon,4!M. & 
 Sel 532. It seems doubtfiil whether the courts will take judicial 
 notice of royal proclamations without proof. Dwpaiys v. Shepherd, 
 12 Mod. 216 : Van Omeron v. Dowioh, 2 Camp. 44. Such proclama- 
 tions may be proved by copies purporting to be printed by the 
 printers to the Crown, or by the printers to either House of Parha- 
 ment, or by any or either of them, without proof being given that 
 such copies were so printed. 8 «6 9 Vict. c. 113, s. 3. Any procla- 
 mation, order, or regulation, issued by her Majesty, or by the privy 
 councU, and any proclamation, order or regulation issued by or under 
 the authority of any of the following departments of tfie government 
 or officers, viz. : the Commissioners of the Treasury, the Commis- 
 sioners for executing the office of Lord High Admiral, Secretaries of 
 State, Committee of Privy Council for Trade, or the Poor Law 
 Board, may be proved, prima facie, in all or any of the following 
 modes : — 1. By the production of a copy of the Gazette purportingto 
 contain such proclamation, order or regulation. 2. By the produc- 
 tion of a copy of such proclamation, order or regulation purporting 
 to be printed by the government printer, or, where the question 
 arises in a court in any British colony or possession, of a copy pur- 
 porting to be printed under the authority of the legislature of such 
 British colony or possession. 3. By the production, in the case of 
 any proclamation, order, or regulation issued by her Majesty or by 
 the Privy Council, of a copy or extract purporting to be certified to 
 be true by the clerk of the Privy Council or by any one of the lords 
 or others of the Privy Council, and, in the case of any proclamation, 
 order, or regulation issued by or under the authority of any of the said 
 departments or officers, by the production of a copy or extract pur- 
 porting to be certified to be true by the person or persons hereinafter 
 mentioned; viz., where the proclamation, order, or regulation is issued 
 by the Commissioners of the Treasury, the certificate is to be by any 
 commissioner, secretary, or assistant secretary of the Treasury ; 
 where it is issued by the commissioners for executing the office of 
 Lord High Admiral, the certificate is to be by any of the commis- 
 sioners for executing that office, or either of the secretaries to the 
 said commissioners ; where it is issued by the secretaries of state, 
 the certificate is to be by any secretary or under-secretary of state ; 
 where it is issued by the committee of Privy Council for Trade, 
 the certificate is to be by any member or secretary or assistant 
 seoretaiy of that committee ; where it is issued by the Poor Law 
 Board, the certificate is to be by any commissioner or secretary or 
 assistant secretary of that board. 31 & 32 Vict. c. 37, «. 2. Any 
 copy or extract made in pursuance of that act may be in print or in 
 writing, or partly in print and partly in writing. lb. No proof is 
 requisite of the handwriting or official position of any person certi- 
 fying, in pursuance of that act, to the truth of any copy of, or ex- 
 tract fi-om, any proclamation, order, or regulation, lb. The follow- 
 ing words in the act have the meaning hereinafter assigned to them, 
 imless there is something in the context repugnant to such construe- 
 
Written Evidence. 263 
 
 tion; that is to say, " British colony and possession," for the pm-- 
 poses of the act, include the Channel Islands, the Isle of Man, and 
 such teiTitories as may for the time being be vested in her Majesty 
 by virtue of any act of parliament for the government of India and 
 aU other her Majesty's dominions ; " Legislature " signifies any 
 authority other than the imperial parliament or her Majesty in 
 council competent to make laws for any colony or possession ; 
 " Privy Council " includes her Majesty in council and the lords and 
 others of her Majesty's Privy Council, or any of them, and any com- 
 mittee of the Privy Coimcil that is not specially named in the sche- 
 dule to the act ; " Government printer " means and includes the 
 printer to her Majesty and any printer pm-porting to be the printer 
 authorized to print the statutes, ordinances, acts of state, or other 
 public acts of the legislature of any British colony or possession, or 
 otherwise to be the government printer of such colony or posses- 
 sion ; " G-azette " includes the London G-azette, the Edinburgh 
 Gazette, and the Dublin Gazette, or any of such gazettes. 31 <& 32 
 Vict. c. 37, o. 5. The provisions of this act are in addition to, and 
 not in derogation of, any powers of proving documents given by any 
 existing statute, or existing at common law ; s. 6. 
 
 As to the proof, in cases of bankruptcy, by advertisements and 
 notices in the Gazette, see 32 <6 33 Vict. c. 71, ss. 10, 47, 81, ante, 
 pp. 247—249. 
 
 The almanack annexed to the Common Prayer Book (ij. v. Soli, 
 6 Mod. 81) is evidence that such a day of the year was Sunday, or 
 the like. Page v. Fawcet, Cm. Eliz. 227; 1 Leon. 242 ; 1 Sid. 300; 
 6 Mod. 41. 
 
 As to the acts of State of a foreign government or British colony, 
 see ante, p. 258. 
 
 The production in evidence of most of the documents above men- 
 tioned in this section has been much facilitated by modem statutes. 
 The 8 <fe 9 Vict. c. 113, s. 1, enacts, that whenever by any act now in 
 force or hereafter to be in force, any certificate, oflScial or public 
 document, or document or proceeding of any corporation or joint- 
 stock or other company, or any certified copy of any document, bye- 
 law, entry in any register or other book, or of any other proceeding, 
 shall be receivable in evidence of any particular in any court of 
 justice, or before any legal tribunal, or either House of Parliament, 
 or any committee of either house, or in any judicial proceedings, the 
 same shall respectively be admitted in evidence, provided they 
 respectively purport to be sealed or impi-essed with a stamp, or 
 sealed and signed, or signed alone, as required, or impressed with 
 a stamp and signed, as directed by the respective acts made or to 
 be hereafter made, without any proof of the seal or stamp, where 
 a seal or stamp is necessary, or of the signatTire or of the official 
 character of the person appearing to have signed the same, and with- 
 out any further proof thereof, in every case in which the original 
 record could have been received in evidence. And by the stat. 
 14 & 15 Vict. c. 99, s. 14, it is enacted, that whenever any book or 
 other document {see Reeve v. Sodson, ante, p. 244) is of such a public 
 nature as to be admissible in evidence on its mere production from 
 the proper custody, and no statute exists which renders its contents 
 provable by means of a copy, any copy thereof or extract therefrom 
 shall be admissible in evidence in any court of justice, or before any 
 person now or hereafter having by law or by consent of parties 
 authority to hear, receive, and examine evidence, provided it be 
 
264 Written Evidence. 
 
 proved to be an examined copy or extract, or provided it purport to 
 be signed and certified as a true copy or extract by the ofiicer (s«e 
 In re Hall's Estate, 22 L. J., Ch. 177: Re Porter's Trusts,^ 25 L. J., 
 Gh. 688) to whose custody the original is entrusted, and which officer 
 is hereby required to famish such certified copy or extract to any 
 person applying at a reasonable time for the same, upon payment of 
 a reasonable sum for the same not exceeding fourpence for every 
 folio of ninety words. 
 
 3. Writtem Instruments of a Private Nature. 
 
 When a deed is to be given in evidence, the general rule is, that 
 the deed itself must be produced at the trial. LeyfieWs case, 10 Co. 
 92 h, 93. To this, however, there are some exceptions, arising fi-om 
 necessity ; as, where the deed is in the hands of the opposite party, 
 Read v. Broolanan, 3 T. R. 153 : Wymarlis case, 5 Co. 73 a, or has 
 been lost by time or accident, or by any other casualty, as by fire, 
 etc., Read v. Broohman, 3 T. R. 151, 153, n. {see Kensington v. Inglis,, 
 8 East, 273 : Brewster v. Sewell, 3B.t& Aid. 296: FreemamY. Arhdl, 
 2 B. S C. 494, as to proof of the loss, etc.), the contents of it may be 
 proved by a copy or other secondary evidence. Leyfield's case, 10 
 Co. 92 6 : Medlicot v. Joyner, 1 Mod. 4. Upon indictments for for- 
 gery, however, it is the generally understood rule, that the prisoner 
 cannot be convicted unless the forged instrument be produced. But 
 in R. V. Hvmier, SC.&P. 592; iC.diP. 128, where it appeared that 
 the deed alleged to be forged was in the custody of the defendant, 
 who, after notice, refused to produce it, secondary evidence of the 
 deed was received. 
 
 Secondly, as to the proof of the exeqution of the deed : if there 
 have been no subscribing witness to it, then proof of the handwriting 
 of the parties will be sufficient, the law in such a case presuming a 
 delivery. But if the deed were attested, the execution must formerly 
 have been proved by at least one of the subscribing witnesses; 
 Gilh. Ev. 99 : Barnes v. Tronvpowshy, 7 T. R. 266 : Breton v. Chpe, 
 Pealce, 31 : Manners v. Postan, 4 Esp. 240 : and see England v. 
 Roper, 1 Starh. 304. This rule, however, is now altered by 28 fid. 
 c. 18, s. 7, which, by s. 1, is applicable to all courts of criminal judi- 
 cature, and which enacts that it shall not be necessary to prove by 
 the attesting witness any instrument to the validity of which attesta- 
 tion is not requisite, and such instrument may be proved as if there 
 had been no attesting witness thereto. 
 
 It is, therefore, now unnecessary to call the attesting witness to 
 prove the execution of a deed, unless the deed is one to the validity 
 of which attestation is requisite. A list of instruments to the 
 validity of which attestation is requisite, and which therefore must 
 still, subject to the exceptions to be presently mentioned, be proved 
 by the subscribing witness, will be found in Tayl. Evid. 1641 (ith 
 eel.). It does not appear necessary that the subscribing witness 
 when called should swear that the deed was actually executed in his 
 presence ; if he were afterwards desired to attest it by the party who 
 executed it (Grellier v. Neale, PeaJce, 146 : Powell v. Blackett, 1 &p- 
 97), or in the presence of the party (ParkY.Mears,3 Esp.lll; 2Boi. 
 & P. 217), and he attested it accordingly, this will be sufficient, pro- 
 vided the attestation and execution be done so nearly at the same 
 time, as fairly to be deemed parts of the same transaction. MS., 
 E. 1814. On the other hand, a person who even sees an instrument 
 
Wiiiten Evidence. 2G5 
 
 executed, but who is not desired by the parties to attest it, cannot, 
 by afterwards putting his name to it, prove it as an attesting witness. 
 M'Oraw V. Gentry, 3 Camp. 232. To this nile, of proving the execu- 
 tion by the evidence of an attesting witness, which is now limited, 
 as we have seen above, to the case where the deed is one to the 
 validity of which attestation is requisite, there are, however, many 
 exceptions. First, where the execution fonns one of the admissions 
 in the cause ; but this exception is obviously applicable to civil 
 cases only. Secondly, where the deed (and the same as to a will, 
 although it be less than thirty years since the testator's death. Doe 
 d. Oldham v. Wolley, 9> B. & C. 22) is thirty years old or upwards, 
 the court will presume that it has been duly executed, and will not 
 require it to be proved. Bull. N. P. 255 : Chelsea Waterworks Co. v. 
 Couiper, 1 Esp. 275, 278, provided possession have followed the deed, 
 or some satisfactory account be given of it, and provided there be no 
 erasure or interlineation in it, and that it do not impoi't fraud; 
 otherwise it must be proved as in ordinary cases, either by the at- 
 testing witness, or by evidence of his and the party's handwriting. 
 2 Bac. Air. Ed. (F.) ; Bull. N. P. 255; and see 3 Taunt. 91. It 
 may be necessary here to remark, that when you give an ancient 
 obligation for the payment of money in evidence, you should be 
 prepared to prove the payment of interest within the last twenty 
 years, or other circumstances sufficient to rebut the presumption 
 which the law will otherwise raise of such obligation having been 
 satisfied. See 1 Burr. 444; 2 Str. 826; 1 W. Bl. 532; 1 T. R. 272. 
 Thirdly, where a deed enrolled (and to which enrolment was neces- 
 saiy) is given in evidence, it is not necessaiy to prove the execution 
 of it by the subscribing witness; but it may be proved by the 
 enrolment indorsed on it, or, if the deed be lost, by an examined 
 copy of the enrolment, as already mentioned, ante, p. 243. Fourthly, 
 where one deed is recited in another, proof of the second deed is 
 deemed proof of the one recited, as against the parties to the second 
 deed and those claiming under them. 2 Bac. Abr. Ev. (F.) Fifthly, 
 if the subscribing witness be since dead, Nelson v. Whittall, 1 B. & 
 Aid. 19: and see 6 East, 85, or have become insane, 12 Vin. Abr. 
 224 : Currie v. Child, 3 Camp. 283, or be abroad out of reach of the 
 process of the court. Holmes v. Pontin, Peahe, 99 : Cooper v. Marsden, 
 1 Esp. 2 : Wallis v. Delancey, 7 T. R. 266, n. ■ 12 Vin. Ah: 224 : and 
 see Eodmet v. Foreman, 1 Starh. 90 ; whether there domiciled or not. 
 Prince v. Blachburn, 2 East, 250 ; or if he have set out for the pur- 
 pose of leaving the kingdom; Ward v. Wells, 1 Taunt. 461; or if 
 from circumstances it may fairly be presumed that he has left the 
 kingdom ; Wardell v. Fermor, 2 Camp. 282 : Wyatt v. Bateman, 7 
 C. & P. 586 ; or if it appear that he is serving in the navy, Parher v. 
 HosJdns, 2 Taunt. 223, or the like ; or if, after a bond fide serious 
 and diligent inquiry, he cannot be found ; Cochlan v. Williamson, 1 
 Douff. 93 : Omliffe v. Sefton, 2 East, 183 : Barnes v. Trompowslcy, 7 
 T. R. 266 : Crosby v. Percy, 1 Camp. 303 ; 1 Taunt. 364 : Wardell v. 
 Fermor, 2 Camp. 282 : Willman v. Worrall, 8 C. & P. 380 : Earl of 
 Falmouth v. RobeHs, S M. <& W. 469 ; or if he be or have become^ 
 subsequently incompetent as a witness from any cause ; Jones v. 
 Mason, 2 Sti: 833; Peahe, 102; then, upon proof of any one of these 
 circumstances, you will be permitted to give secondary evidence of 
 the execution of the deed ; that is, you may prove the deed by proving 
 the handwriting of the witness and the party. Nelson v. Whittall, 1 
 B. <£■ Aid. 19. And the rule on this subject is not affected by the-' 
 
266 Written Evidence. 
 
 power to examine witnesses abroad on interrogatories, under the 
 Stat. 1 W. 4, c. 22, s. 4. Gluhh v. Edwards, 1M.& Rob. 300. But 
 the declarations of the witness himself as to the place of his residence, 
 or heai'say statements of others on the subject, cannot be admitted to 
 prove that he is abroad. Doe d. Beard v. Povxll, 7 C. <£■ P. 61-7. 
 And although the subscribing witness have become blind, the instru- 
 ment cannot be read without calling him. Oramh v. Frith, % M.& 
 Rah. 262 ; 9 C. <£• P. 197: hut see Wood v. Drury, 1 Ld. Raym. 734: 
 Pedler v. Paige, \ M. S Rob. 258, contra. In a late case, Lord 
 Tenterden held, that proof of the handwriting of the subscribing 
 witness, who was dead, was sufficient, without any further proof of 
 the identity of the parties than the identity of the name and descrip- 
 tion. Page y. Mann, Moo. S M. 79: see also Kay v. Broohmem, Id. 
 286: Mitchell v. Johnson, Id. 176. But see Whiteloch v. Mmgrove, 1 
 C. S M. 611: Jcmes v. Jones, 9 M. & W. 75. If there be two 
 witnesses to the deed, and any of the circumstances just now 
 mentioned apply only to one of them, the deed must of course be 
 proved by the other. Also, by stat. 26 G. 3, c. 57, s. 38, deeds 
 executed in the East Indies, when the subscribing witnesses are 
 resident there, may be given in evidence in Great Britain, upon 
 proof of the handwriting of the parties and of the witnesses. Lastly, 
 where the subscribing witness at the trial is unable, or refuses to 
 disclose the truth, the deed may be proved by other witnesses. 
 Goodtitle V. Clayton, 4 Burr. 2224: Talbot v. Hodson, 7 Tavmt. 251. 
 Upon an indictment for forging a deed or other written instrument, 
 all that it is incumbent upon the prosecutor to prove is, that the 
 name subscribed to the deed is not the handwriting of the pai-ty 
 whose signature it purports to be, which may be proved by the 
 party whose name is forged. 
 
 To prove a will of lands, it is only necessary to call one of the 
 witnesses who attested it; Peahe, 193: Doe v. Smith, 1 .Bsp. 391; 
 Shin. 413; 2 Str. 1253; 1 W. Bl. 8; if the opposite party wish 
 he may call the others. Bull. N. P. 264. The witness called, 
 however, should be prepared to give parol evidence of every 
 circumstance attending the attestation necessary to show that the 
 will was duly executed and attested according to the directions of 
 the statute. 
 
 All other writings, not under seal, are proved in the same manner 
 as deeds ; that is, by the subscribing witness, if there be one {see 
 ante, p. 264); Witherston v. Edgington, 2 Camp. 94; 1 Stark. 53; 
 2 Starh. 180 ; and if the instrument is one to the validity of which 
 attestation is requisite, 28 Vict. c. 18, s. 7; if not, then either by the 
 subscribing witness or by pi-oof of the party's handwriting. It is 
 said, also, that a writing of this kind, if ancient, shall be received in 
 evidence without proof^ in the same manner as an ancient deed. 
 Tr. per Pais, 370 : but see Fortesc. 43. If lost or destroyed, copies 
 or other secondaiy evidence of their contents will (excepting in the 
 case gf forgery, see cmte, p. 264) be received; but evidence must be 
 given at the same time of the genuineness of the original instrument. 
 See Bwnb. 889 ; lAth. 446 ; C. & Mar. 157. 
 
 The handwriting of a witness or party may be proved either by 
 some person who bas a knowledge of it from having seen him write, 
 see Garrels\. Alexander, ^Esp.2iT; \ Esp.li; 2Stor^.l64; lEoU, 
 420 ; even once only, Willman v. Worrall, 8 C. d P. 380 : Warrm 
 v. Anderson, 8 Scott, 384 ; or his surname only, Lewis v. Sapio, M. 
 d M.39: Powell v. Ford, 2 Stark. 164, contra j or from having been 
 
Written Evidence. 267 
 
 in the habit of corresponding with him ; Gould v. Jones, 1 W. Bl. 
 384: Harrington v. Fry, By. & M. 90; or acting upon his corre- 
 spondence with others ; R. v. Slaney, bC.&P. 213 : see Doe d, Mudd 
 V. Suckermore, h A. & E. 703; or the handwriting of a party may be 
 proved by his own admission. Waldridge v. Kennison, 1 Esp. 143. 
 But it could not in criminal cases until the stat. 28 Vict. c. 18, s. 8, 
 be proved by comparing it with other writings, although confessedly 
 of his handwriting. Garrels v. Alexander, 4 Esp. 37, 117 : Macferson 
 V. Thtyyte, Peake, N. P. C. 20 : Stanger v. Searle, 1 Esp. 14 : «ee 
 Griffits V. Ivery, 11 A. <& E. 322; 3 Per. d D. 179: Hughes v. 
 Rogers, 8 M. d W. 123 : Younge v. Honnor, 2 M. & Rob. 536 ; 
 1 C. & K. 61. But on a question as to the genuineness of hand- 
 writing, a jury might compare the document with authentic writings 
 of the party to whom it was ascribed, if such writings were in evi- 
 dence for other purposes of the cause. Solita v. Yarrow, \ M. & 
 Roh. 183 : R. v. Morgan, Id. 134, n. : Griffith v. Williams, \ C. & J. 
 47 : Waddington v. Cousins, 1 C. & P. 596 : Doe d. Perry v. Newton, 
 
 1 Nev. & P. l-.b A. & E. 514. In an action for a libel, which 
 charged the plaintiff with having published a libel on the defendant, 
 where the defendant justified on the ground that the plaintiff had 
 published such libel, letters written by the plaintiff, not otherwise 
 evidence in the cause, in which the defendant's name was spelt in a 
 peculiar manner, were held to be admissible to show that the libel 
 in question, which contained the defendant's name spelt with tlie 
 same peculiarity, was also written by the plaintiff. Brookes v. 
 TicUorne, 6 Exch. 929. And now by 28 Vict. c. 18, s. 8 (which by 
 s. 1 applies to all courts of criminal judicature), " comparison of a 
 disputed writing with any writing proved to the satisfaction of the 
 judge to be genuine, shall be permitted to be made by witnesses ; 
 and such writings, and the evidence of witnesses respecting the 
 same, may be submitted to the court and jury as evidence of the 
 genuineness or otherwise of the writing in dispute." A person 
 skilled in the detection of forgeries may prove that the writing is in 
 a feigned hand, though he never saw the party write. R. v. Cator, 
 4 Esp. 117; 1 Esp. 14: Goodtitle v. Braham, 4 T. R. 497; sed 
 gucere: see Carey v. Pitt, Peake, Ad. Ca. 130. See 2 Esp. 714; 
 Gumey v. Langlands, b IB. & Aid. 330 : jB. v. Buckler, 6 C. & P. 
 118 : Doe d. Mudd v. Suckermore, 6 A. <S) E.lOi; 2 Nev. & Per. 16. 
 
 Formerly, where a genuine instrument was to be given in evidence, 
 care must have been taken that it was duly stamped, if a stamp 
 were necessary to its validity. R. v. Hall, 3 Stark. 67. But upon 
 an indictment for forging a bill of exchange, it was not necessaiy 
 that it should be stamped, in order to its.being received in evidence ; 
 although in stat. 23 G. 3, c. 49, imposing a stamp duty upon bills of 
 exchange, it is said, that no such instrument shall be received as 
 evidence unless it be first duly stamped. R. v. Hawkeswood, 
 
 2 T. R. 606, n. ; 1 Leach, 257 : R. v. Lee, Id. 268, n.: K.v. Morton, 
 2 East,_ P. C. 985 : R. y. Teague, Id. 979 ; 2 Russ. 341. But upon 
 an indictment for arson, with intent to defraud an insurance com- 
 pany, it was held, that the policy could not be received in evidence 
 unless duly stamped. R. v. Gilson, R. & R. 138 ; 2 Leach, 1007 ; 
 1 Taunt. 25. The rule seemed to be, that, where the indictment 
 was founded on a written instrument, and the instrument itself was 
 the crime, it was receivable in evidence without a stamp ; but where 
 the indictment was for an offence distinct from the instrument, and 
 the instrument was introduced collaterally only, it could not be 
 
 n2 
 
268 Written Evidence. 
 
 received unless it were properly stamped. S. v. Smyth, 1 M. <& Boh. 
 156 ; 5 Cd; P. 201 : see Coppock v. Bower, ilf.d W. 361. But by 
 17 d> 18 Vict. c. 83, s. 27, every instrument was made admissible in 
 evidence in criminal proceedings,' althougli it might not be stamped. 
 This section is repealed by 33 <fc 34 Vict. c. 99, but is in effect re- 
 enacted by 33 (6 34 Vict. c. 97, s. 17, which enacts, that " save and 
 except as aforesaid, no instrument executed in any part of the 
 United Kingdom, or relating, wheresoever executed, to any property 
 situate, or to any matter or thing done or to be done, in any part of 
 the United Kingdom, shall, except in criminal proceedings, be pleaded 
 or given in evidence, or admitted to be good, useful, or available in 
 law or equity, unless it is duly stamped in accordance with the law 
 in force at the time when it was first executed." 
 
 Sect. 4. 
 parol evidence. 
 
 1. In what Cases receivable, p. 268. 
 
 2. Incompetency of Witnesses, p. 270. 
 
 3. Credit of Witnesses, p. 277. 
 
 4. The Number of Witnesses requisite, p. 287. 
 
 5. Process against Witnesses, p. 288. 
 
 6. Witnesses'' Expenses, p. 291. 
 
 7. Examination of Witnesses, p, 296. 
 
 1. In what Cases receivable. 
 
 Pakol evidence is inferior to written evidence : and as the best 
 possible evidence must be given, it follows, of course, as a general 
 rule, that the contents of a written document, which is capable of 
 being produced, must be proved by the document itself, and not by 
 parol evidence ; The Queen's case, 2 B. & B. 289 ; subject to this 
 exception, that what a party to the record says is prima/ry evidence 
 against him as an admission, though it relates to the contents of a 
 written instrument, and though the contents be directly in issue in 
 the cause. Slatterie v. Pooley, & M. d W. 664 ; 10 L. J., Exch. 8. 
 And so strict is the generalrule, that where an agreement in writing 
 on unstamped paper was designedly destroyed by one of the parties 
 to it, it was holden that it was not open to the other party to give any 
 evidence whatever of the matter of agreement : parol evidence could 
 not be received of it, because it had been reduced to writing; nor 
 could parol evidence be received of the contents of the written instru- 
 ment as secondary evidence, because, if the instrument itself were 
 produced, it could not be received in evidence for want of a stamp. 
 Mij^ner v. Wright, 2 B. S Aid. 478 : R. v. Castle Morton, i B.& 
 Aid. 588 : and see Doe v. Cartwright, Id. 326 ; and 2 Brod. do B. 99. 
 But where a parol contract is made subsequently to a written con- 
 tract, the latter being substituted for the former, parol evidence may, 
 of course, be given of the latter contract. White v. Parkin, 12 East, 
 578. As to the cases in which parol evidence may be received as 
 
Parol Evidence. 269 
 
 secondary evidence of a written instrument, where the written in- 
 strument is proved to have been burnt, destroyed, or lost, or in pos- 
 session of the opposite party, see ante, p. 264. There are no degrees 
 of secondary evidence : and therefore a party who has laid the foun- 
 dation for such evidence may prove the contents of a deed by parol, 
 although it appear that there is an attested copy in existence. Doe 
 d. Gilbert v. Boss, 7 M. <& W. 102 : Brovm v. Woodman, 6 C. d; P. 
 206: Hall v. Ball, 3 Scott, N. R. 677. But it has been held, that 
 where there is a copy of the original document, it cannot be proved 
 by a copy of that copy. Liebman v. Pooley, 1 Stark. 167: Ever- 
 ingham v. Roundell, i M. & Rob. 138. It must not, however, be 
 understood that parol evidence can never be received where written 
 evidence of the same fact is attainable. For although parol evidence 
 cannot be substituted for any instrument which the law requires to 
 be in writing; 1 Tayl. Ee., ith ed. 389; nor for the written evidence 
 of any contract which the parties have put in writing; Id. 391 ; nor 
 for any writing, the existence or contents of which are disputed, and 
 which is material to the issue between the parties, and is not merely 
 the memorandum of some other fact ; Id. 398 ; yet where the writing 
 does not fall within either of these three classes, no reason exists 
 why it should exclude parol evidence. Id. 402. See also Best on 
 Emid., ith ed. 308, 309. Thus, although a written receipt may have 
 been given for the payment of money, proof of the fact of payment 
 may be made by any person who witnessed it. Rambert v. Cohen, 4 
 Esp. 213. So, the fact of marriage may be proved by the evidence 
 of a person who was present at it, although the marriage may have 
 been registered. R. v. Maimearing, Dears. & B. 132; 26 L. J. 
 {M. C.) 10. And where three witnesses stated that a vessel was a 
 British ship of Shields, and that she was sailing under the British 
 flag, but no proof was given of tlie register of the vessel or of the 
 ownership, it was held, that this was suflicient proof that the vessel 
 was British. R. v. Seberg, L. R.. 1 C. C. R. 264: R. v. Von Seberg, 
 39 L. J. (M. C.) 133, S. C. 
 
 Secondly. It is a general rule, that parol evidence shall not be 
 receivedof anything which is not immediately within the knowledge 
 of the witness; he must speak of facts which happened in his pre- 
 sence, or within his hearing. To this, however, there is one excep- 
 tion, namely, that, in a matter of science, a person intimately ac- 
 quainted with it may be called upon to give his opinion as to the 
 probable result or consequence from certain facts already proved. 
 As, for instance, if it were required to determine whether a man died 
 of any particular disease, symptoms being proved, a physician may 
 be called upon to give in evidence his opinion as to the disease of 
 which the party died, as founded upon the symptoms so proved, 
 although he have never seen the deceased. So, upon an indictment 
 for murder, the deceased's wounds, etc. being described, a surgeon 
 may be called^ upon to give in evidence his opinion whether the 
 deceased died in consequence of his wounds, or from natural causes. 
 Upon a question of insanity, a vritness of medical skill may be asked 
 whether such and such appearances, proved by other witnesses, are, 
 in his judgment, symptoms of insanity ; but he cannot be asked, if, 
 from the testimony given, the act with which the prisoner is charged 
 is, in his opinion, an act of insanity ; which is the very point to be 
 decided by the jury. R. v. Wright, R. & R. 456. See ante, pp. 19, 
 21. On an indictment for uttering a forged will, which it was sug- 
 gested had been written over pencil marks that had been rubbed 
 
270 Parol Evidence. 
 
 out, it was held that the evidence of an engraver, who had examined 
 the paper with a mirror and traced the pencil marks, was admissible 
 on the part of the prosecution. R. v. Thomas Williams, iC.c&P, 434. 
 Thirdly. We have seen (ante, p. 221) that hearsay is no evidence, 
 excepting in certain excepted cases before mentioned. But in other 
 cases, all facts which cannot be proved by records, or other written 
 evidence, may be proved by parol evidence. 
 
 2. Incompetency of Witnesses. 
 
 Persons deemed by the common law to be incompetent as wit- 
 nesses, and who (until the statute 6 <£ 7 Vict. c. 85, post, p. 271) were 
 therefore not to be allowed to give evidence upon a criminal pro- 
 secution, may be classed as follows : those who do not appear to 
 have sufficient discretion; those who do not appear to have aright 
 sense of the sanctity and moral obligation of an oath ; those whose 
 crimes had rendered them infamous ; those who were interested in 
 the event of the suit; those who stand in the relation of husband or 
 wife to the defendant ; and, lastly, the counsel and solicitors of the 
 defendant and prosecutor, in some instances. 
 
 From want of Discretion.] — An idiot shall not be allowed to give 
 evidence ; Co. Litt. 6 6; Gilb. Ev. 144 ; a lunatic during a lucid in- 
 terval may. Id.: Com. Dig. Testm. (A). When a lunatic is ten- 
 dered as a witness, it is for the judge to examine and ascertain 
 whether he is of competent understanding to give evidence, and is 
 aware of the nature and obligation of an oath ; if satisfied that he 
 is, the judge should allow him to be sworn and examined. E. v. 
 Hill, 2 Den. 255 ; 20 L. J. (M. C.) 222. A person who is deaf and 
 dumb is not incompetent; and he may be examined through the 
 medium of a sworn interpreter, who understands his signs. A dumb 
 man, not deaf, is sworn in the usual way, and then the interpreter is 
 sworn to interpret his signs. R. v. Ruston, 1 Leach, 408 : R. v. Pol- 
 lock, MS. 1815; 1 Phil. Ev. 7. So, an infant of any age may be a 
 witness, provided such infant appear sufficiently to understand the 
 nature and moral obligation of an oath ; for its competency depends 
 not upon its age, but its understanding. R. v. Powell, 1 Leach, 110: 
 R. V. Brazier, Id. 199 : R. v. Williams, 1 C. S P. 320. See 2 Hah, 
 278, 284; Com. Dig. Testm. {A.l): R. v. Travers, 2 Str. 700; Gilb. 
 Ev. 144. It seems that the court will not postpone the trial of an 
 indictment, in order that a child, who is a necessary witness for the 
 prosecution, and who cannot be examined from want of knowledge 
 of the nature and obligation of an oath, may in the meantime be 
 instructed therein. R. v. Nicholas, 2 C. & K. 246. 
 
 From want of Religion.'] — It is not necessary that a witness should 
 be a Christian, or even believe in the Old Testament, (as laid down 
 in some of the older authorities; see Co. Litt. 6 6.; Gilb. Ev. 142, 
 143,) in order to render him competent ; it is sufficient if he beUeve 
 in a God, in a future state of rewards and punishments, and in the 
 moral obligation of the oath he is about to take. Omichvmd v. 
 Barker, Willes, 538; 1 Ath. 19, 21 ; 1 Wils. 84; Bull. N. P. 292: 
 R. V. Taylor, Peake, 11. Thus, Christians of all sects and denomi- 
 nations, see R. V. Mildrone, 1 Leach, 412; Peake, 11, 23, 155: R. v. 
 Sema, 2 C. <& K. 53; Jews, Gilh. Ev. 143; 2 Str. 821 ; Turks, Moors 
 and other Mussulmans, see 2 Str. 1104; Gentoos, Willes, 538; 1 Atk. 
 
Parol Eoidmce. 271 
 
 19, 21 ; 1 Wils. 84 ; Chinese, C. <& Mar. 248, and the like, may be 
 ■witnesses. But a man wholly without religion would not, previous 
 to 32 S 33 Vict. c. 68 (Evidence Further Amendment Act, 1869), 
 have been received to give evidence in any case whatever. 1 Atle. 
 44 : Maden v. Catanach, 7 S. & N. 360 ; 31 L. J., Exch. 118. That 
 statute, however (s. 4), enacts, that if any person called to give 
 evidence in any court, whether in a civil or criminal proceeding, 
 shall object to take an oath, or shall be objected to as incompetent 
 to take an oath, such person shall, if the presiding judge is satisfied 
 that the taking of an oath would have no binding effect on his con- 
 science, make the promise and declaration the form of which is 
 contained in the same section. 
 
 The circumstance that a principal witness, although an adult and 
 of sufficient intellect, has no idea of a future state of rewards and 
 punishments, is not a sufiicient ground for discharging the juiy, 
 though this appears as soon as the jury is charged, and before any 
 evidence is given. B. v. Wade, 1 Mood. C. C. 86. But if an appli- 
 cation for that pm-pose be made before the jury are sworn, the judges 
 will occasionally postpone important trials, if they have reason to 
 believe that an adult, who is a necessary witness for the prosecution, 
 can, witliin a reasonable time, be rendered competent to testify. B. 
 V. White, 1 Lea. C. C. 430, n. (a). 
 
 From Infamy.'] — Before the passing of the statute 6 cfi 7 Vict. 
 c. 85, persons convicted of treason, felony, piracy, prcemunire, per- 
 jury, forgery, 2 Eawh. c. 46, s. 19 ; Gilh. Ev. 139 ; 2 Boll. Ahr. 616; 
 Co. Lilt. 6, or any other species of the crimen falsi, such as conspi- 
 racy, barratry, and the like, B. v. Priddle, 1 Leach, 442 : B. v. Ford, 
 2 Salh. 690 : see Bushell v. Barrett, By. & M. 434, were not allowed 
 to give evidence. Formerly it was the general opinion, that stand- 
 ing in the pillory for any offence, or undergoing any other species of 
 infamous corporal punishment incapacitated a man from being a 
 witness: iHawle. c. 46, s. 19; Co. Lift. 61; B. v. Carter, 5 Mod. 
 74; 2 Salk. 461, 689; but it was afterwards settled that it was the 
 infamy of the crime, and not the nature or mode of the punishment, 
 that destroyed the competency; Pmdoch v. Macldnder, 2 Wils. 18 ; 
 Gilli. Ev. 140 ; and, therefore, though a man had stood in the pillory 
 for a libel, or for seditious words, or the like, he was not thereby 
 disabled from being a witness. Gilh. Ev. 140, 141 ; 3 Lev. 426. So, 
 outlawry in a civil suit did not render a man incompetent as a wit- 
 ness ; Co. Litt. 6 6 ; 2 Hawh. c. 46, s. 21 ; nor a conviction for keep- 
 ing a gaming-house; B. v. Grant, By. & M. 270; nor had the mere 
 commission of any offence that effect, unless the party had been 
 actually convicted of it. Kel. 17, 18; 1 Sid. 21 ; Cowp. 3. See 11 
 East,m<d. 
 
 A pardon, also, of any of these offences, had the effect of restoring 
 competency, in as full a manner as if the witness had never been 
 convicted ; 2 Hawh. c. 46, i-. 22 ; Gilh. Ev. 141, 142 ; except in two 
 cases only, viz. perjury on the stat. 5 Eliz. c. 9, and conspiracy at 
 the suit of the Queen : B. v. Guisse, 1 Ld. Baym. 257 : B. v. Ford, 
 2 Salh. 690; 2 Hawh. e. 46, s. 22 : and so had the endurance of the 
 punishment, upon a conviction for any felony not capital, or for 
 any misdemeanor, except penury and subornation of perjury. 6 G. 4, 
 c. 25,8.2; 9G.i,c.32,ss.ii 
 
 But now, by the stat. 6 c6 7 Vict. c. 85, s. 1, no person offered as a 
 witness shall be excluded by reason of incapacity from crime or in- 
 
Wt Parol Evidence. 
 
 terest from giving evidence, either in person or by deposition, ac- 
 cording to the practice of the court, on the trial of any issue joined, 
 or of any matter or question, or on any inquiry arising in any suit, 
 action, or proceeding, civil or criminal, in any court, or befoi-e any 
 judge, jury, sheriff, coroner, magistrate, officer, or person having, by 
 law or by consent of parties, authority to hear, receive and examine 
 evidence; but every person so offered may and shall be admitted to 
 give evidence on oath, or solemn affirmation, in those cases wherein 
 affirmation is by law receivable, notwithstanding that such person 
 may or shall have an interest in the matter in question, or in the 
 event of the trial of any issue, matter, question, or inquiiy, or of 
 the suit, action, or proceeding in which he is offered as a witness, and 
 notwithstanding that such person offered as a witness may have been 
 previously convicted of any crime or offence. Notwithstanding this 
 enactment, a person actually under sentence of death, and who is 
 therefore civilly dead, is incapable of being a witness. R. v. Wehb, 
 11 Coir, 133, per Lush, J. 
 
 From Interest.'] — It was also, until the stat. 6 <£• 7 Vict. c. 85, s. 1, 
 removed the incapacity, a general rule of evidence, not to admit the 
 testimony of a witness who was necessarily to be a gainer or loser 
 by the event of the cause, whether such advantage were direct and 
 immediate, or consequential only. 
 
 Notwithstanding this general rule, an accomplice was always a 
 competent witness, although his expectation of pardon depended 
 upon the defendant's conviction. Gilb. Ev. 136; 1 Hale, 303; 2 
 Hawh. c. 46, s. 94. See Say. 289 : Mead v. Robinson, Willes, 423. 
 So, an accessory is a competent witness against his principal, and the 
 principal against the accessory ; as, for instance, upon an indictment 
 for receiving stolen goods, the person who stole the goods is a com- 
 petent witness. M. v. Patram, 2 East, P. C. 782 : B. v. Haslam, 1 
 Leach, 418. But the fact of the witness being an accomplice, acces- 
 sory, or principal, detracts very materially from his credit ; Qilb. Em. 
 136 ; and it is always considered proper (although, in strict law, it is 
 not essential, see R. v. Eastings, 1 C. <& P. 152 : R. v. Stubls, vhi 
 infra), in order to induce the jury to credit his testimony, to give 
 other evidence confirmatoiy of, at least, some of the leading circum- 
 stances of his story, from which the jury may be able to presume 
 that he has told the truth as to the rest. See Cowp. 336. If, upon 
 an indictment against several, the accomplice be confirmed in the 
 testimony he gives against some of the prisoners, but not as to the 
 others, this has been holden sufficient confirmation to warrant the 
 conviction of all. R. v. Dawher, 3 Sta/rh. 34, and n. : hut see R. 
 V. Stubbs, Dears. 555 ; 25 L. J. (M. C.) 16, contra. And it has 
 been said, that if an accomplice be confirmed as to the particulars 
 of the story, he does not require confirmation as to the person 
 charged ; R. v. Birhett, R. & R. 252 ; but this doctrine has been 
 rejected in late cases; inasmuch as the confirmation as to the 
 circumstances proves only that the accomplice was participant in 
 the felony, not that the particular party charged was his con- 
 federate. R. V. Webb, 6 C. <& P. 595 : R. v. Wilkes, 1 C. & P. 
 272: R. V. Farler, 8 C. & P. 106: R. v. DyJce, Id. 261: .B. v. 
 Birhett, Id. 732 : R. v. Stubbs, ubi supra. And where, upon an in- 
 dictment against principal and accessories, the case against the prin- 
 cipal was proved by an accomplice, who was confirmed as to the 
 accessories, but not as to the principal, the jury were directed to 
 
Parol Evidence. 273 
 
 acquit the prisoners. E. v. Wells, 21. & M. 326 : R. v. Moores, 7 
 C. & P. 270. Nor ought a prisoner to be convicted upon the evi- 
 dence of any number of accomplices, unconfirmed by other testi- 
 mony. B. V. Noakes, b C. & P. 326. The testimony of the wife of 
 an accomplice is not such evidence as a jury ought to rely upon as 
 confirmation of his statement. R. v. Neah, 7 C. & P. 168. A pri- 
 soner, who employed another person to harbour a principal felon, 
 was convicted on the uncorroborated testimony of the person who 
 actually harboured him. R. v. Jarvis, i M. & Rob. 40. 
 
 As we have abeady said, the stat. 6 <fc 7 Vict. c. 85, s. 1 {ante, 
 p. 271), renders all persons competent as witnesses, notwithstand- 
 ing they may have an interest in the matter in question, or in the 
 event of the trial of any issue, matter, question or inquiry, or of the 
 suit, action, or proceeding, whether civil or criminal, in which they 
 may be offered as witnesses ; subject, however, to certain exceptions, 
 which will be presently stated. 
 
 From being Parties to the jStn't]— In civil actions, until the pass- 
 ing of the statute 14 <fi 15 Vict. c. 99, neither party to a suit was 
 allowed to give evidence for or obliged to give evidence against 
 himself In criminal cases the rule was the same ; but it was not 
 applicable to the prosecutor, for the indictment, etc., is at the suit 
 not of the prosecutor, but of the Queen ; and the prosecutor was 
 accordingly deemed a competent witness in all cases. The de- 
 fendant, so far from being obliged to give evidence against himself, 
 was never bound even to answer the questions put to him upon his 
 examination before a magistrate. And the defendant's wife could 
 never be compelled, nor indeed would she be permitted, to give evi- 
 dence against her husband, excepting in some instances, where she is 
 also the prosecutrix. {See post, p. 275.) By the 6 t& 7 Vict. c. 85, 
 s. 1, it was expressly provided, that that act should not render com- 
 petent any party to any suit, action, or proceeding individually 
 named in the record, or the husband or wife of such person. How- 
 ever, by the stat. 14 <& 15 Vict. c. 99, s. 2, parties to suits, actions, 
 or other proceedings in courts of justice, are made competent and 
 compellable to give evidence for or against each other. But by 
 s. 3, nothing therein contained shall render any person who, in any 
 criminal proceeding, is charged with the commission of any indict- 
 able offence, or any offence punishable on summary conviction, com- 
 petent or compellable to give evidence /or or against himself or her- 
 self, or shall render any person compellable to answer any question 
 tending to criminate himself or herself, or shall in any criminal pro- 
 ceeding render any husband competent or compellable to give 
 evidence for or against his wife, or any wife competent or com- 
 pellable to give evidence for or against her husband. It will be 
 observed that the 3rd section merely provides that the persons spe- 
 cified in it shall not be competent or compellable to give evidence 
 for or against themselves. It would seem, therefore, that such per- 
 sons are competent and compellable under sect. 2, to give evidence 
 for or against their co-defendants. 2 Tayl. Ev. 1155, Uh ed. ; 3 
 Russ. C. & M., by Greaves, 627, ^th ed., and the authorities there 
 cited. Thus, where W. and H. were jointly indicted for murder, 
 and W. was given in charge to the jury and tried alone, it was held 
 that H. was admissible as a witness against her, without having 
 been either acquitted or convicted, and no nolle prosequi having been 
 entered. Winsor v. R., L. R., 1 Q. B. 390 ; 35 L. J. (M. C.) 161. 
 
 N 5 
 
274 Parol Evidence. 
 
 There are, however, a few cases, such as conspiracy, where the in- 
 dictment may be so framed as to give the prisoner, proposed to be 
 called as a witness, a direct interest in obtaining the discharge of 
 his co-defendant, and in such cases, it is doubtful, whether his evi- 
 dence can be received. 2 Tayl. Ev. 1155, ^th ed. The safer course, 
 therefore, where it is sought to obtain the testimony of a defendant 
 as against his co-defendants is either to enter a nolle prosequi, R. v. 
 Sherman, Cos. temp. Hardw. 303, or to apply for a verdict of ac- 
 quittal before opening the case, R. v. Rowland, Ry. <& M. 401. It 
 may happen that the prosecutor, in order to exclude the evidence of 
 a material witness for the defendant, prefers his indictment against 
 both jointly; if, therefore, in such a case, no evidence whatever be 
 given to affect the person thus unjustly made a defendant, the judge 
 in his discretion, Davis v. Living, Holt, N. P. 275, may direct the 
 jury to acquit him in the first instance, either dui-ing the progress or 
 at the termination of the inquiry, so as to give an opportunity to the 
 other defendant to avail himself of his testimony. Gilh. Ev. 131, 
 132; Bull. N. P. 285; Post. 313, n. : R. v. Owen, 9 C. tfe P. 83: R. 
 v. Eraser, 1 M'Nally, Ev. 56: R. v. O'Donnell, 7 Cox, 337. As soon 
 as a prisoner has thus been acquitted he becomes competent as a 
 witness, as well for the crown as for his former co-defendants. R. 
 V. O'Donnell, 7 Coas, 341, 342. A defendant who has pleaded guilty 
 is an admissible witness, before sentence, for or against his co- 
 defendants. R. V. George, C. c& Mar. Ill: R. v. HinJcs, 1 Den. 84; 2 
 C. & K. 462. 
 
 It was formerly doubted, whether an information filed by the 
 attorney-general in the Exchequer for the recover'y of penalties, con- 
 sequent on a breach of the revenue laws, was a criminal proceeding, 
 within 14 & 15 Vict. c. 99, s. 3, so as to render the defendant an 
 inadmissible witness; Attorney-Gen. v. Radloff, 10 Ex. R. 84; but 
 now by 28 & 29 Vict. c. 104, s. 34, it is enacted, that sects. 2 & 3 of 
 the 14 <& 15 Vict. c. 99, and the " Evidence Amendment Act, 1853," 
 
 16 & 17 Vict. c. 83, shall extend and apply to proceedings at law on 
 the revenue side of the Exchequer ; and that any proceeding at law 
 on the revenue side of the Exchequer shall not for the purposes of 
 the 28 & 29 Vict. c. 104, be deemed a criminal proceeding, within 
 the meaning of the said sections and act, as applied by the present 
 section. 
 
 From relation to the Parties.] — It was, until the recent stat. 16 & 
 
 17 Vict. c. 83, a general rule of evidence (which was not affected, in 
 either criminal or civil cases {see Barbatv. Allen, 7 Exch. 609: Sta- 
 pleton V. Crofts, 18 Q. B. 367: Percival v. Caney, cit. ib. 369), by the 
 statutes 6 <6 7 Vict. c. 85, and 14 & 15 Vict. 99), that husband and 
 wife could not be witnesses either for or against each othei-. Co. Litt. 
 6 6; Gilb. Ev. 133, 134: Davis v. Dinwoody, 4 T. R. 678 ; 2 T. R. 
 263; Eardw. 264; Bac. Abr. Evidence, (A. 1); see 1 Str. 504. And 
 though, by the above-mentioned statute 16 <& 17 Vict. c. 83, husband 
 and wife are made (with certain exceptions) competent and com- 
 pellable to give evidence for and against each other in civil pro- 
 ceedingsj the second section of that act expressly excepts from its 
 operation all criminal proceedings. The wife cannot be a witness 
 for any other person indicted jointly with the husband, where her 
 testimony would tend even remotely to her husband's acquittal. Thus, 
 where the wife of one prisoner was called to prove an alibi in favour 
 of another jointly indicted with her husband, her testimony was 
 
Parol Evidence. 275 
 
 rejected on the ground, that, by shaking the evidence of a witness 
 for the prosecution, who had identified both prisoners, it would mate- 
 rially weaken the case against the husband. R. v. SmUh,_ 1 Mood. 
 C. G. 289: R. v. Denslow, 2 Cox, 230. Where several were indicted for a 
 conspiracy. Lord Ellenborough refused to allow the wife of one of 
 them to give evidence in favour of some of the others; for, if all 
 the others were acquitted, the husband must consequently have been 
 acquitted also. R. v. Locker, 5 Esp. 107: aiid see R. v. Frederick, 2 
 Str. 1094. So, in conspiracy, the wife of one of the defendants should 
 not be allowed to give evidence against one of the others, as to any 
 act done by him in furtherance of the common design, particularly 
 after evidence given connecting the husband with that defendant in 
 the general conspiracy. R. v. Serjeant, Ry. & M. 352. So, a mar- 
 ried woman cannot be called to prove a conversation between the 
 prisoner and her husband, which goes to show that her husband and 
 the prisoner committed the felony for which the prisoner is tried. 
 R. V. Gleed, Harrison^ s Dig. 849; hut see R. v. Halliday, Bell, ibl; 
 29 L. J. (M. C), 148. But the wife of a person already convicted 
 for the same offence is a competent witness against the prisoner. 
 R. v. M. Williams, 8 C. d P. 284. So, where A. and B. were jointly 
 indicted for a felony, and A. pleaded guilty, the wife of A. was 
 admitted as a witness against B. R. v. Thompson, 3 P. <& F. 824. 
 It has been considered doubtful even whether the rule forbidding 
 husband and wife to give evidence for or against each other does 
 not extend to the case of a woman cohabiting with a man and 
 passing as his wife. See Campbell v. Twemlow, 1 Price, 81. But it 
 seems now to be settled, that the rule only extends to cases where 
 the man and woman have been actually married. 1 Phil. Ev. 69. 
 
 To the rule above laid down, however, there are several exceptions, 
 namely: — First, in cases of high treason, husband and wife may be 
 witnesses against each other. R. v. Griggs, T. Raym. 1 ; hut see 1 
 Brownl. 47; Co. Litt. 66; 1 Hale, 301, cont.; and see 1 Hale, 48, 
 duh. Secondly, when the husband is indicted for a personal injury 
 to the wife, the latter is a competent witness to support the prose- 
 cution; Bull. N. P. 286; 1 Hale, 301; and the same when the wife 
 is indicted for a personal injury to the husband. Where a husband 
 was indicted for being present, aiding and assisting another in com- 
 mitting a rape upon his own wife, the wife was holden to be a com- 
 petent witness to prove the offence; R. v. Audley, 1 St. Tr. 393; 
 and the same where a husband was indicted for the battery of his 
 wife. R. V. Azire, 1 Str. 633. So, upon an indictment against a man 
 for the murder of his wife, the dying declarations of the wife were 
 allowed to be given in evidence against him. R. v. Woodcock, 2 
 Leach, 563: R. v. John, 1 East, P. C. 357. Thirdly, upon an in- 
 dictment for bigamy, the second wife is a competent witness against 
 the defendant, the &st marriage being previously proved; for the 
 second marriage is void. 1 Hale, 393. So, upon an indictment for 
 forcible abduction and marriage, the woman is a competent witness 
 against the defendant ; for a contract obtained by force has no obli- 
 gation in law. Bull. N. P. 286; 1 Hale, 302: R. v. Wakefield, 
 joubl. by Murray, 257. These last, however, are not really excep- 
 tions to the rule above mentioned; for here the woman is not, in 
 law, the wife of the defendant. 
 
 The wife of a prosecutor may give evidence either for the crown 
 or for the defendant. 2 Tayl Ev. 1162 {ith ed.), referring to R. v. 
 Houlton, 1 Jehb, C. C. 24. 
 
276 Parol Evidence. 
 
 A father or mother may be a witness for or against the child. R. 
 V. Mayor of Oakhampton, 1 Wih. 332; 2 T. B. 263; 6 T. R. 330; 
 Hardw. 277 ; 1 Salk. 289 ; 2 Str. 926, 940; Cowp. 591 ; a child, for 
 or against the father or mother; Gilb. Ev. 135; a servant, for or 
 against the master or mistress ; Id.; a. master or mistress, for or 
 against the servant. 
 
 Counsel, solicitors and attorneys are privileged from giving (in- 
 deed they ■will not be permitted to give) evidence of any matters 
 confided to them by their clients in their professional capacity, 
 Gilb. Ev. 136 : Wilsm v. Rastall, 4 T. R. 753 : and see 2 Camp. 9 ; 
 6 Mod. 47 ; 2 Starh. 274 ; 2 Bos. d: P. i ; 2 B. d C. 743 ; Ry. & M. 
 34, either in the cause respecting which the communication was 
 made, or in any other ; 4 T. iE. 753 ; and whether the client be a 
 party to the cause or not ; 2 Camp. 578 ; or whether the business on 
 which the attorney was retained had reference to legal proceedings, 
 either existing or in contemplation, or not. Greenough v. Gashell, 1 
 Myl. <& K.98; see 1 M. & Rob. 326 ; 4 5. <£ Ad. 870 ; 1 M. d: W. 
 533 ; 2 M. d; W. 98. So, an attorney is not bound, on a subpoena 
 duces tecum,' to produce any deeds or papers belonging to his client 
 in his custody, if it appear that the production will operate to the 
 prejudice of his client. Copeland v. Watts, 1 Starh. N. P. 95. See 
 Bate V. Kinsey,.! C, M. &■ R. 38: R. v. HanUns, 2 C. & K. 823. 
 Where, however, on a trial for forgery, a witness who had been 
 served with a subpoena duces tecum objected that the documents 
 came into his possession as the attorney of the prisoner in a pre- 
 vious prosecution instituted by him, Willes, J., held that the 
 documents must be produced. R. v. Broitm, 9 Cox, 281. And 
 where an attorney refuses, and is justified in refusing, to produce 
 documents, secondary evidence may be given of thS contents. 
 Coates V. Birch, 2 Q. B. 252. If, being attorney for the defendant, 
 he hold papers in another capacity, he must produce them ; as, for 
 instance, an attorney and steward of a lord of a borough is bound to 
 produce public documents relating to the borough, but he is. not 
 bound to produce documents relating to the lord's interest in the 
 borough. R. v. Woodley, 1 M. & Rob. 390. What is here said as 
 to attorneys is equally applicable to their agents. Parkins v. Hawle- 
 shaw, 2 Stark. 239, and their clerks, Taylor v. Forster, 2C.&P. 195: 
 see Webb v. Smith, 1 C. dh P. 337, and to persons employed by them 
 as interpreters between them and their clients. Du Barri v. Livette, 
 Peake, 78. This privilege, however, is to be considered as exclud- 
 ing the disclosure merely of such facts as have bona, fide been com- 
 municated confidentially by the client to the attorney, etc., in his 
 professional capacity; R. v. Jones, 1 Den. 166: R. v. Fa/rley, 
 Id. 197 ■,'iC.d:K. 313; R. v. Hayward, 1 C. d: K. 234 : Brown, v. 
 Foster, 1 H. d: N. 736 ; and therefore does not extend to facts Icnown 
 to the attorney previously to his retainer ; CHlb. Ev. 136 : Outts v. 
 Pickering, 1 Vent. 197 ; Skin. 404 ; nor to the contents of a notice 
 served upon him by the attorney on the other side, requiring him to 
 produce at the trial a certain paper belonging to his client in his 
 hands, Spenceley v. Schulenburg, 7 East, 357, or the like. And 
 where an attorney was present at the time his client swore to an 
 answer in Chancery, it was holden that he could be compelled to 
 give evidence of that fact, on an indictment against his client for 
 perjury. Bull. N. P. 284; but see R. v. Watkinson, 2 Str. 1122, cmt. 
 So, he may be called to prove his client's handwriting, though the 
 knowledge was obtained from witnessmg his execution of a bail- 
 
Parol Evidence. 277 
 
 bond in the action ; Hurd v. Moving, 1 C. S P. 372 ; and lie may be 
 called to prove his client's identity. Studdy v. Saunders, 2 D. & R. 
 347 : Parkins v. Eawhshaw, 2 StarJc. 239, cont. And if he be a sub- 
 scribing witness to a deed of his client, he may be examined as to 
 his execution of it. Doe v. Andrews, 2 Cowp. 846 : Rohson v. Kemp, 
 4 Esp. 235 ; 5 Esp. 52 : Doe d. Avery v. Roe, 6 Dowl. 618. This 
 privilege also is strictly confined to counsel, solicitors, attorneys, 
 and their agents, etc. See Foote v. Eayne, Ry. & M. 165. It does 
 not extend to the steward or other agent of the party, 2 Atlc. 524 : 
 Wilsonv. Rastall, 4 T. R. 753, or to a conveyancer, 2 Ath, 525, or to 
 a physician or other medical person, 11 St. Tr. 243; 4 T. R. 753, 
 however confidential the communication to such persons may be. 
 As to statements made by a penitent to a Roman Catholic priest in 
 confession, see R. v. Hay, 2 F. S P. 4. 
 
 Where, also, the disclosure of a particular fact, not bearing directly 
 upon the matter in question, may be of detriment to the public ser- 
 vice, the court will not compel a witness to disclose it. As, for in- 
 stance, in Eardy^s case, 24 How. St. Tr. 753, a witness who was em- 
 ployed to obtain information of the proceedings at a meeting of one 
 of the corresponding societies, was not allowed to disclose the name 
 of his employer. See Home v. BentincJc, 2 Brod. & B. 162 : R. v. 
 Watson, 2 Stark 136 ; 32 How. St. Tr. 98, 100 : Att.-Gen. v. Briant, 
 15 M. & W. 169. — See further on this subject, Rose. Ev. at Nisi Prius, 
 108 (lift ed.). 
 
 Rejection of Evidence of Witnesses of which the Prisoner has had 
 no Notice.} — In R. v. Stiginani, 10 Ccx, 552, Willes, J., is said to 
 have ruled that the evidence of a witness, whose deposition had not 
 been taken before the committing magistrate, and in respect of whom 
 the prosecution had given no notice to the prisoner that it was their 
 intention to call him, was not admissible when tendered on the part 
 of the prosecution. The same point, however, having been raised 
 in R. V. Greenslade, 11 Cox, 412, Brett, J., after consulting Willes, J., 
 said, that he had the authority of the latter for saying that his ruling 
 in R. V. Stiginani, ubi supra, was incorrectly reported, and that 
 evidence tendered under the circumstances above mentioned, if 
 relevant, ought to be received, although the fact of notice of its in- 
 tended production not having been given to the prisoner or his 
 attorney was a subject of strong comment. In R. v. Connor, 1 Cox, 
 233, Patteson, J., said, that he had no power to interfere in a case 
 in which, after the prisoners were committed, a great body of 
 additional evidence had been obtained, copies of which had been 
 refused to the prisoners. 
 
 3. Credit of Witnesses. 
 The credibility of a witness is compounded of his knowledge of the 
 facts he testifies — his disinterestedness — his integrity — his veracity — 
 and his being bound to speak the truth, by such an oath as he deems 
 obligatory. Proportioned to these is the degree of credit his testi- 
 mony deserves from the court and jury. 
 
 From their Knowledge.'] — Although a witness be perfectly dis- 
 interested, although he be a man of integrity and veracity, and have 
 
278 Parol Evidence. 
 
 a just sense of the moral obligation of the oath he has taken, still the 
 degree of credit to be given to his testimony depends upon his real 
 knowledge of the facts he testifies. A man may be deceived in a 
 fact, from deriving his knowledge of it through a false medium; from 
 liis attention being occupied more by the circumstances accompany- 
 ing it than by the fact itself at the time of its occm-rence; or from 
 a thousand other circumstances, which, if candidly stated, might be 
 satisfactorily answered and accounted for by the other party, so as 
 to convince the witness himself that he laboured under a mistake. 
 "Where there is a doubt, therefore, whether the evidence given by a 
 witness be not founded on some misconception, it is the duty of the 
 counsel who cross-examines him to question him as to the sources of 
 his knowledge; his reasons for believing the fact to be as he has stated; 
 his reasons for recollecting it ; the circumstances attending its oc- 
 cm-rence ; whether it was light or dark, and whether he was near or 
 distant at the time it occurred, and the like ; so that the jury may be 
 able to judge of the degree of confidence they should place in the 
 witness's testimony. If a witness refuse to answer such questions, 
 or do not answer them satisfactorily, it should have the effect of 
 detracting considerably from his credit in the estimation of the 
 
 From their Disinterestedness.'] — A witness, to be perfectly credible, 
 must not be in the slightest degree biassed or partial to one party or 
 the other. Therefore, if it appear that the witness is prejudiced 
 against the party against whom he appears, or has before expressed 
 sentiments indicative of such prejudice, or if it appear that a prose- 
 cution is pending against him for the same or a similar offence, and 
 he come to dispi-ove some of the facts charged in the indictment 
 against the defendant — all these are circumstances which detract 
 proportionably fi-om his credit. Where the prosecutor is to derive 
 an advantage from a conviction of the defendant, this, we have seen 
 ^anie,p. 273), is no objection to his competency; it goes to his credit 
 merely. A father is a competent witness for his son, and a son for 
 his father ; but the interest arising from the relationship detracts 
 proportionably from the credit of the witness. See 2 Hale, 276: 
 Gilb. Ev. 149, 155. 
 
 From their Integrity.] — Even before the stat. 6 <£• 7 Viet. c. 85, it 
 was only a conviction for treason, felony, etc., as we have seen {ante, 
 p. 271), that rendered a witness incompetent ; the commission alone of 
 any of the offences there mentioned, without conviction (see R. v. 
 Teal, 11 East, 309), and the commission of all other offences which 
 import falsity or fraud, whether followed up by conviction or not, 
 affected only the credit of the witness. Since that statute, the con- 
 viction of the witness for any crime whatever can only have the like 
 effect. And whether he has been convicted or not, you may call 
 witnesses to speak as to his general character, although not as to 
 any particular offence of which he may be guilty. 2 Hawk. c. 46, 
 s. 2; 4 St. Tr. 693: R. v. Watson, 2 Starh. 149. In order to impeach 
 the credit of a witness for veracity, witnesses may be called by the , 
 other side to prove that his general reputation is such that they 
 would not believe Jiim upon his oath. R. v. Brown, L. R., 1 C. G. 
 R. 70; 36 L.J. (M.' C!) 69. As to cross-examining the witness 
 
Parol Evidence. 279 
 
 himself upon the subject of alleged crimes or other improper con- 
 duct on his part, there seems to have been some difference of opinion 
 among the judges : some holding that you could not ask a question 
 of the witness, the answer to "which in the affirmative would subject 
 him to punishment; others that you might ask the question, but 
 that the witness is not bound to answer it ; and others, I believe, 
 including in the rule not only questions the answers to which might 
 subject the witness to punishment, but also all those where the 
 witness, by his answer, might be obliged to allege his own infamy 
 or turpitude, although they might not subject him to any punish- 
 ment. See the cases collected, 3 Muss., C. & M. hy Greaves, 539 
 et seq. (ith ed.). In M. v. Holding, Old Bailey, June, 1821, Bayley, 
 J., held that a witness may be asked a question, the answer to 
 which may subject him to punishment, but he is not compellable 
 to answer it ; and in R. v. Slaney, 5 C. (& P. 213, Lord Tenterden 
 said, that a witness could not be compellable to answer a question 
 which would tend to criminate him. The same doctrine was laid 
 down in R. v. Oarbett, 1 Den. 236; 2 C. & K. 474. It appears, 
 indeed, now to be settled that for the purpose of impeaching the 
 credit of a witness he may always be asked on cross-examination 
 questions with regard to alleged crimes or other improper conduct 
 on his part. 2 Tayl. Eo. 1222 (4^ ed) ; 3 Russ., C. & M. hy Greaves, 
 540 (4ih ed.), and the cases there cited; but that the witness cannot 
 be compelled to answer such questions where the answers would 
 have a tendency to expose him to a criminal charge, or to a penalty 
 or forfeiture of any nature. 2 Tayl. Ev. 1236 (4fA ed.), and cases 
 there cited ; 3 Russ., C. & M., hy Greaves, uhi supra. And as we 
 have seen (ante, p. 273), the 14 <& 15 Vict. c. 99, s. 3, expressly pro- 
 vides, that nothing in that act contained shall render any person 
 compellable to answer any question tending to criminate himself or 
 herself. The witness may claim the protection of the court at any 
 stage of the inquiry ; although he may already have answered 
 without objection some questions tending to criminate him. R. v. 
 Garbett, 2 C. <& K. 474. The witness is not himself the sole judge 
 whether his evidence will bring him into danger; ihs judge must see, 
 from the circumstances of the case and the nature of the evidence, 
 whether there really is reasonable ground to apprehend danger to 
 him from his being compelled to answer. Osborn v. London Dock 
 Co., 10 Exch. 698 ; 24 L. J., Exch. 140 : Sideboitom v. AdJcins, 27 
 L. J., Ch. 152 : R. v. Boyes, I B. & S. 311 ; 30 L. J., Q. B. 301 : 
 Ex party Fernaindez, 10 C. B., N. S. 3, 39, 40; 30 L. J. (C. P.) 
 
 _ Where a witness, being interrogated as to his conduct on a pai-- 
 ticular occasion, refuses to answer on the ground that his evidence 
 may render him liable to prosecution, the production to him of a 
 pardon under the great seal for all offences committed by him on 
 the occasion referred to, takes away his privilege, and makes him 
 compellable to answer. Thus, where, on the trial of an information 
 filed by the attorney-general, by direction of the House of Commons, 
 against A. for bribeiy at a parliamentaiy election, B., a witness for 
 the crown, being asked whether he had not received money for his 
 vote, refused to answer the question, whereupon the counsel for the 
 crown produced and tendered to him a pardon under the great seal 
 for all offences which he might have committed at or in relation to 
 such election ; it was held that thereupon he was bound to answer 
 all questions relating to what he did at the election; and this, 
 
280 Parol Evidence. 
 
 although it was further objected on his part that he was still liable 
 to impeachment by parliament, from which the pardon would have 
 been no protection (see 12 <S: 13 W. 3, c. 2, s. 3), for this was held to 
 be too remote and improbable a contingency to affect the case, or 
 give the witness any privilege. R. v. Boyes, 2 F. & F. 157; 1 B. <§ 
 S. 311 ; 30 L. J., Q. B. 301. See R. v. Reading, 7 St. Tr. 296 : R. 
 V. Earl of Shaftesbury, 8 St. Tr. 817. 
 
 All other questions (not being questions the answers to which 
 would have a tendency to expose him to a criminal charge, or to a 
 penalty or forfeiture) for the pui-pose of impeaching a witness's 
 character not only may be put, but must be answered, although the 
 answer may degrade the witness's character. See Cundell v. Pratt, 
 Moo. & M. 108. And a witness cannot refuse to produce a docu- 
 ment kept by him under the authority of an Act of Parliament, on 
 the ground that it may criminate himself. Bradshaw v. Murphy, 7 
 C <& P. 612. If the witness be examined as to the offence or im- 
 proper conduct imputed to him, and deny it, such denial is con- 
 clusive, and you cannot afterwards call witnesses or offer other 
 evidence to contradict him ; R.-v.Watson,2 Stark. lAQetseq.: Harris 
 V. Tippelt, 2 Gamp. 637: R.v. Oracknell, 10 Co.r, 408 ; that is, if the 
 question is merely collatei-al to the point in issue ; if it is relevant to 
 it, and the witness deny the thing imputed he may be contradicted. 
 Yewin's case, 2 Camp. 638. And now by 28 Vict. c. 18, s. 6 (which 
 by s. 1 extends to all courts of criminal judicature), " a witness may 
 be questioned as to whether he has been convicted of any felony or 
 misdemeanor, and upon being so questioned, if he either denies or 
 does not admit the fact, or refuses to answer, it shall be lawful for 
 the cross-examining party to prove such conviction ; and a certificate 
 containing the substance and effect only (omitting the formal part) 
 of the indictment and conviction for such offence, purporting to be 
 signed by the clerk of the court, or other officer having the custody 
 of the records of the court where the offender was convicted, or by 
 the deputy of such clerk or officer (for which certificate a fee of 5s. 
 and no more shall be demanded or taken), shall, upon proof of the 
 identity of the person, be sufiicieut evidence of the said conviction, 
 without proof of the signature or official character of the person 
 appearing to have signed the same.'' If general evidence be given of 
 the bad character of a witness, the opposite party may cross-examine 
 the witnesses as to the grounds of their opinion, if he think it 
 prudent to do so ; or he may call witnesses who can speak to the 
 general good conduct of the witness, or contradict any particular 
 facts the other witnesses may have disclosed in their cross-examina- 
 tion. Where a witness refuses to answer a question, his not an- 
 swering ought not, legally, to have any effect with the jury. 
 R. v. Watson, 2 Starh. 157: R. v. BlaJeemore, Ry. & M. 382: 
 Lloyd V. Passingham, 16 Ves. 84; sed quaere; see 2 Tayl. En. 1248 
 {Uh ed.). 
 
 In The Queen's case it was holden, that where a witness for a pro- 
 secution has been examined in chief, the defendant cannot afterwards 
 give evidence of any declaration by such witness, or of acts done by 
 him, to procure persons corruptly to give evidence in support of the 
 prosecution, unless he have previously cross-examined such witness 
 as to such declarations or acts. 2 Brod. ds B. 311. 
 
 From their Veracity.] — The character of a witness for habitual 
 veracity is an essential ingredient in his credibility; for a man who 
 
Parol Evidence. 281 
 
 is capable of uttering a deliberate falsehood is in most cases capable 
 of doing so under the solemn sanction of an oath. If, therefore, it 
 appear that he has formerly said or written the contrary of that 
 which he has now sworn (unless the reason of his having done so be 
 very satisfactorily accounted for), his evidence should not have much 
 weight with a jury ; and if he have formerly sworn the contraiy, the 
 fact (although no objection to his competency, M. v. Teal, 11 East, 
 309), is almost conclusive against his credibility. Formerly there 
 was some difference of opinion as to the kind of answer which, on 
 a witness being cross-examined as to a former statement incon- 
 sistent with his present testimony, would let in proof of such state- 
 ment. Pain V. Beeston, \ M. & Roh. 820 : Lonq v. Hitchcock, 9 C. 
 & P. 619: Crowley v. Page, 7 C. & P. 792. But now by 28 Vict, 
 c. 18, s. 4 (which by s. 1 applies to all courts of criminal judica- 
 ture), " if a witness, upon cross-examination as to a former statement 
 made by him relative to the subject-matter of the indictment or pro- 
 ceeding, and inconsistent with his present testimony, does not dis- 
 tinctly admit that he has made such statement, proof may be given 
 that he did in fact make it ; but before such proof can be given the 
 circumstances of the supposed statement, sufficient to designate the 
 particular occasion, must be mentioned to the witness, and he must 
 be asked whether or not he has made such statement." If the former 
 declaration of the witness were in writing, it was formerly irregular 
 to question him as to the contents of it ; you should have produced 
 it, asked him if it were his handwriting, and then have given it in 
 evidence. In The Queen's case it was liolden, that in cross-examin- 
 ing a witness you cannot state to him the contents of a letter, and 
 then ask him if he ever wrote such a letter ; but you should show 
 him tlie letter, ask him if it be of his handwriting, and if he admit it, 
 then give the letter in evidence. Or you may show him part of the 
 letter, and ask him if he wrote that part ; but if he do not admit 
 that he wrote it, you cannot then proceed to cross-examine him as 
 to the contents of the letter; 2 Brod. & B. 286; nor, even if he 
 admit it to be his handwriting, can you question him whether state- 
 ments, such as you suggest to him, are contained in the letter; but 
 the entire letter must be given in evidence. 2 Brod. & B. 288. 
 
 But the rule on this subject, as laid down in The Queeris case, uhi 
 supra, is now altered by 28 Vict. c. 18, s. 6 (which by s. 1 applies to 
 all courts of criminal judioatm-e), as follows:— "A witness maybe 
 cross-examined as to previous statements made by him in writing, 
 or reduced into writing relative to the subject-matter of the indict- 
 ment or proceeding, without such writing being shown to him ; but 
 if it is intended to contradict such witness by the writing, his atten- 
 tion must, before such contradictory proof can be given, be called to 
 those parts of the writing which are to be used for the purpose of so 
 contradicting him : Provided always, that it shall be competent for 
 the judge, at any time dra-ing the trial, to require the production of 
 the writing for his inspection, and he may thereupon make such use 
 of it for the purposes of the trial as he may think fit." Since this 
 enactment it would seem that the rules laid down by the judges, 
 infra, as to the mode of cross-examining witnesses for the crown 
 with respect to what they have previously sworn before the magis- 
 trate, and which has been reduced into writing in their depositions 
 are no longer in force. 
 
 Those rules, which will be found in 7 C. d P. 676, and G L. J. 
 
282 Parol Evidence. 
 
 (_M. C.) 37, are: — I. That where a Tvitness for the crown has made a 
 deposition before a magistrate, he cannot, on his cross-examination 
 by the prisoner's counsel, be asked whether he did or did not, in his 
 deposition, make such or such a statement, until the deposition itself 
 has been read, in order to manifest whether such statement is or is 
 not contained therein ; and that such deposition must be read as 
 part of the evidence of the cross-examining counsel. II. That, after 
 such deposition has been read, the prisoner's counsel may proceed 
 in his cross-examination of the witness as to any supposed contra- 
 diction or variance between the testimony of the witness in court 
 and his former deposition ; after which the counsel for the prosecu- 
 tion may re-examine the witness, and, after the prisoner's counsel 
 has addressed the jury, will be entitled to the reply. And in case 
 the counsel for the prisoner comments upon any supposed variance 
 or contradiction, without having read the deposition, the court may 
 direct it to be read, and the counsel for the prosecution will be 
 entitled to reply upon it. III. That the witness cannot, in cross- 
 examination, be compelled to answer whether he did or did not make 
 such or such a statement before the magistrate, until after his depo- 
 sition has been read, and it appears that it contains no mention of 
 such statement. In that event, the counsel for the prisoner may 
 proceed with his cross-examination ; and if the witness admits such 
 statement to have been made, he may comment upon such omission, 
 or upon the effect of it upon the other pai-t of his testimony ; or, if 
 the witness denies that he made such statement, the counsel for the 
 prisoner may then, if such statement be material to the matter in 
 issue, call witnesses to prove that he made such statement. But in 
 either event, the reading of the deposition is the prisoner's evidence, 
 and the counsel for the prosecution will be entitled to reply. 
 
 These resolutions were (before the 28 Vict. c. 18, s. 5), binding on 
 the prisoner's counsel ; but the judge who tried a case might, not- 
 withstanding, if he thought fit, himself look at the depositions, and 
 question a witness as to any disci-epancy which appeared between 
 his deposition and his evidence. And, by the judge's permission, 
 the prisoner's counsel might, " as his mouthpiece," do the like. 
 Per Wilhs, J., B. v. Peel, 2 F. & F. 21. Whether, if such examina- 
 tion introduced new facts in evidence, that would give the counsel 
 for the pTosecution the right of reply, was not settled. See B. v. 
 Edwards, 8 C. & P. 26. The witness could not be asked whether he 
 did or did not state a particular fact before the magistrate, without 
 first allowing him to read, or have read to him, his deposition. B. v. 
 Taylor, 8 C. & P. 726. Where an accomplice who could not read 
 gave evidence falling very short of what he had stated before the 
 magistrate, the judge allowed his deposition, signed with his mark, to 
 be shown to him, but would not allow it to be read to him, in order 
 that the prosecuting counsel might examine upon it. R. v. Beardmore, 
 S C.(& P. 260. If a witness, on bemg examined for the crown, gives 
 an answer different to what was expected, his deposition maybe 
 shown to him, and the question may then be repeated, even in a lead- 
 ing form ; but if the witness persists in his former answer, the counsel 
 for the prosecution will not, it seems, be allowed to contradict him 
 by putting in his deposition, R. v. Williams, 6 Cox, 343, and, except 
 as above mentioned, the prosecution cannot use or refer to the depo- 
 sitions taken before the magistrates without putting them in as their 
 evidence. R. v. Muller, 10 Cox, 43. If the witness denies his 
 
Parol Evidence. 283 
 
 signature or mark to the deposition, it may be proved by the evidence 
 of any competent pei-son who heai-d it taken; and it is not necessary 
 to prove it by the magistrate or his clerk, R. v. Hallett, 9 C. & P. 
 748 : R. V. Beam, C. <& Mar. 109, any more than in the case of a 
 confession. (See ante, p. IZl.) 
 
 The prisoner's counsel was not permitted, previously to the 28 
 Vict. c. 18, s. 5, in cross-examining a witness for the prosecution, to 
 put his deposition into his hand that he might read it, and then to 
 ask him whether, having read it, he still persevered in the statement 
 which he had made in court ; the proper course was to read the depo- 
 sition to him at the time, and to cross-examine him upon it, or to 
 put it in afterwards as evidence for the prisoner. R. v. Ford, 2 Den. 
 245: 20 L. J. {M. C.) 171 : R. v. Brewer, 9 Cox, 409. In R. v. Ford, 
 Campbell, C. J., said, " the proper course to be pm'sued is that pointed 
 out in The Queen's case, 2 B. & B. 289." We have seen that the 
 rule laid down in The Queen's case is altered by the 28 Vict. c. 18, 
 s. 5, and, since that enactment, R. v. Ford seems to be no authority 
 for the practice to be now pursued. Although, however, vmder 28 
 Vict. c. 18, s. 5, a witness may be cross-examined as to what he said 
 before the magistrates, and the deposition may be put into his hand 
 for that pm-pose, without reading it as part of the evidence of the 
 cross-examining party, yet the latter is bound by the answer of the 
 witness, unless the deposition is put in to contradict him, and it is 
 not admissible to state that the deposition does contradict him 
 xmless it is so put in. R. v. Rileu, i F. <& F. 964 : R. v. Wright, 
 Id.%7. 
 
 But if the former declaration of the witness were not in writing, 
 but merely by parol, you might, even before the 28 Vict. c. 18, s. 5, 
 and still may, cross-examine him on the subject of it ; and if he deny 
 it, you may call another witness to prove it. So, if a witness admit 
 that when before the magistrate he was cross-examined for the pri- 
 soner, and it appears that such cross-examination is not returned 
 with the depositions, he might, even before the enactment above 
 mentioned, have been questioned by the prisoner's counsel as to the 
 answers he gave. R. v. Edwards, 8 C. <& P. 26 : R. v. Curtis, 2 C. & 
 K. 763. So, if it appear that a statement of the witness before the 
 magistrate, although written down by him, was not read over to the 
 witness, nor signed by him or by the magistrate, the witness might, 
 even before the 28 Vict. c. 18, s. 6, be cross-examined as to such 
 statement without producing the writing. R. v. Griffiths, 9 C. d: P. 
 746: see Jeans v. Wheeldon, 2M.& Rob. 486, and the note. Witnesses 
 for the prosecution were duly sworn and examined before the magis- 
 trate, and cross-examined by the prisoner; minutes thereof were duly 
 made by the magistrate's clerk, and then sent to his oflSce to be 
 copied as draft depositions. The witnesses attended there also. T., 
 the copying clerk, while copying the minutes, asked the witnesses 
 some questions, for the purpose of making the depositions more 
 correct, clear and complete, and inserted their answers to such ques- 
 tions in the depositions. The prisoner was not then present. The 
 depositions_ thus written were sent back to the magistrate; and the 
 witnesses,_ in the presence of the prisoner, after being resworn, and 
 after heanng the depositions read over to them, and full opportunity 
 for cross-examination being given to the prisoner, signed them. At 
 the trial, a material question was put to one of the witnesses as to 
 something which he had said to T., in answer to one of the questions 
 
284 Parol Evidence. 
 
 so put to him by T. It was held, that such auswer formed no part 
 of the depositions, but was wholly independent of them, and there- 
 fore that the question might be asked without putting in the deposi- 
 tions. R. V. Christopher, 1 Den. 536 ; '2. C. & K. 994, 995 ; 19 L. J. 
 (M. C.) 103. So a witness may be cross-examined as to his state- 
 ment before the grand jury in the same case. R. v. Gibson, C. & 
 Mar. 672. If, however, a witness, when examined in chief as to the 
 occurrence of a fact, answer that he does not remember it, the counsel 
 on the opposite side cannot give evidence of a former declaration by 
 the witness of the fact having occurred, unless he have in cross- 
 examination questioned the witness as to such a declaration ; for the 
 fact may have occurred, and the witness have formerly declared his 
 knowledge of it, and yet he may not recollect it at the time of his 
 examination. The Queen's case, 2 Brod. & B. 292. It may be neces- 
 sary also to state, as a general rule, that a witness cannot be cross- 
 examined as to any distinct collateral fact, not relevant to the matter 
 in issue, for the purpose of disprovmg the truth of the expected 
 answer by other witnesses, in order to discredit the whole of his 
 testimony. Spenceley v. De Willott, 7 East, 108. 
 
 A consideration of the probability of the fact also may aid us in 
 forming a judgment of the credit that should be given to a witness 
 for veracity. If he tells us of a fact having occurred which is 
 contrary to common experience and observation, it will require that 
 his integrity, veracity, and means of knowledge should be indis- 
 putable to induce us to believe it ; but if, on the contrary, the fact 
 stated by him be very likely to have happened, we may be induced 
 to believe it, without very scrupulously inquiring into his character 
 for integrity, veracity, etc. The strength of the evidence should 
 always be great in proportion to the improbability of the fact to be 
 established by it. 
 
 It may be necessary to observe, that if a witness called to prove a 
 fact prove the contrary, his credit cannot be impeached by general 
 evidence ; Ewer v. Ambrose, 3 B. d C. 750 ; Bull. N. P. 297; but the 
 party is at liberty to make out his case by other and contradictory 
 evidence, for the other witnesses are not called directly to impeach 
 the credit of the first. Id.: R. v. Ball, 8 C. c6 P. 745. It seems also 
 that formerly it was not competent for a party to show that his own 
 witness had at any time given a different account of the same trans- 
 action. 3 B. S a 764 : R. v. Farr, 8 C. & P. 768 : R. v. Ball, supra. 
 But now by 28 Vict. c. 18, s. 3 (which, by s. 1, applies to all courts 
 of criminal judicature), although " a party producing a witness shall 
 not be allowed to impeach his credit by general evidence of bad cha- 
 racter, he may, in case the witness shall, in the opinion of the judge, 
 prove adverse, contradict him by other evidence, or, by leave of the 
 judge, prove that he has made at other times a statement inconsistent 
 with his present testimony; but before such last-mentioned proof can 
 be given, the circumstances of the supposed statement, sufficient to 
 designate the particular occasion, must be mentioned to the witness, 
 and he must be asked whether or not he has made such statement." 
 The word " adverse" in this section means " hostile," and not merely 
 " unfavourable." Greenough v. Eccles, 5 C. B., N. S. 786; 28 L. J. 
 (C P.) 160; which case was decided on the similar enactment con- 
 tained in s. 22 of 17 & 18 Vict. c. 126. In one case, before this 
 enactment, where a judge called a witness upon the back of the in- 
 dictment, who gave evidence in form against the defendant, and the 
 
Parol Evidence. 285 
 
 judge ordered the deposition of the ■witness before the coroner to 
 be read, to show its inconsistency with the testimony then given, the 
 twelve judges thought him right in so doing, and Lord EUenborough 
 and Mansfield, C. J., thought that the prosecutor had the same right. 
 R. V. Oldroyd, M. <& B. 88. See also R. v. Beardmore, R. v. Williams, 
 ante, p. 282. 
 
 From their being sworn to speah the Truth.'] — The general rule, pre- 
 vious to 32 & 33 Vict. c. 68, was, that the testimony of a witness to 
 he examined viva voce in a court of common law in this country 
 should not be received unless he had previously been sworn to speak 
 the truth. Even a peer, who in a court of equity is allowed to give 
 in his answer without oath, merely pledging his honour for the truth 
 of it, must be sworn if examined as a witness. W. Jones, 153-155 ; 
 Cro. Car. 64 ; 2 Ifod. 99; 2 Salk. 513; 1 P. Wms. 146. Now, how- 
 ever, " if any person called to give evidence in any court of justice, 
 whether in a civil or criminal proceeding, shall object to take an 
 oath, or shall be objected to as incompetent to take an oath, such 
 person shall, if the presiding judge is satisfied that the taking of an 
 oath would have no binding effect on his conscience, make the 
 following promise and declaration : / solemnly promise and declare 
 that the evidence givesn by me to the court shall be the truth, the whole 
 truth, and nothing but the truth. And any person who, having made 
 such promise and declaration, shall wilfully and corruptly give false 
 evidence, shall be liable to be indicted, tried, and convicted for 
 3)erjury as if he had taken an oath." 32 & 33 Vict. c. 68 (Evidence 
 Further Amendment Act, 1869), «. 4. 
 
 The form of the oath, where the witness is sworn, varies according 
 to the religion or country of the witness. See Cowp. 382. Christians 
 are sworn on the New Testament ; Jews, on the Old Testament ; 
 Mahometans, on the Koran, and persons of other religions according 
 to the form prescribed for that purpose by the religion they profess. 
 Bull. N. P. 292. Christians are sworn with their hats off; Jews, 
 with their hats on. Even among the different sects of Christians 
 there may be a variance in the manner of taking the oath ; a Scotch 
 Covenanter, forinstance, instead of kissing the book, as is done by 
 other sects of Christians, holds up his hand, whilst the book lies 
 open before him.* R. v. Mildrone, 1 Leach, 412 ; Cowp. 382 : and 
 see Peaie, 28, 155. Each witness, in short, swears in the particular 
 form prescribed by his religion. The only general rule that can be 
 laid down upon the subject is, that the oath be such as the witness 
 deems obligatory upon his conscience. And it is expressly declared, 
 by the stat. 1 c6 2 Vict. c. 105, that, in all cases in which an oath may 
 lawfully be administered, the party is bound by the oath admi- 
 nistered, provided it have been administered in such form and with 
 such ceremonies as he may declare to be binding ; and that, in case 
 of wilful false swearing, he may be convicted of perjury, in the same 
 manner as if the oath had been administered in the form and with 
 the ceremonies most commonly adopted. A witness may be asked, 
 
 * Scotch Covenanter's oath : — " Accord- have different modes of swearing ; and it 
 
 irtg to the religion you pro/ess, and as you may be necessary, therefore, first to ascer- 
 
 consider an oath Mnding upon your con- tain from the witness what form of oath, or 
 
 science, and as you shall answer to God at mode of swearing, he considers binding on 
 
 ihe great day of Judgment, you. shall speak his conscience. See the mode of swearing 
 
 tlie truth, the whole truth, and nothing hut a Chinese witness stated, R. v. EntrehmaUy 
 
 the truth.'* The different sects, liowever, C. & Mar. 248. 
 
286 Parol Evidence. 
 
 after he is sworn, whether he considers the oath he has taken obli- 
 gatory upon his conscience ; but if he answer in the affirmative his 
 answer is conclusive, and he cannot further be asked whether there 
 be any other mode of swearing more binding upon his conscience 
 than that which has been used. The QueerHs case, 2 Brod. & B. 284. 
 The more correct and proper way is to ask the witness, before he is 
 sworn, whether he considers the oath he is about to take obligatory 
 upon his conscience. Id. A witness, however, may either before 
 he is sworn, or after he has been sworn upon the voir dire, Maden 
 V. Catanach, 1 H. S N. 360; 31 L. J., Exch. 118, or, semhle, even 
 after he has been sworn in the cause. The Queen's case, 2 Brod. <& B. 
 284, be asked whether he believes in the being of a Deity, and in a 
 futitte state of rewards and punishments. Maden v. Catanach, ubi 
 supra; but he cannot be questioned as to the particular tenets of his 
 religion. See Peahe, 11 : R. v. White, 1 Leach, 430 : R. v. Sena, 
 2G.&K. 63. 
 
 Formerly, in civil cases, a Quaker was allowed to make an affir- 
 mation, 7 £SW. 3, c. 34 ; 22 G. 2, c. 46, ss. 36, 37, and a Moravian 
 a declaration, 22 G. 3, c. 30, instead of an oath ; but it was expressly 
 provided by those statutes that a Quaker or Moravian should not 
 thereby be enabled to give evidence in criminal cases, or to serve on 
 juries, unless he were actually sworn. But by the stats. 9 G. 4, c. 32, 
 s. 1, and 3 t6 4 TF. 4, c. 49, a Quaker or Moravian, required to give 
 evidence in a criminal case, instead of taking an oath in the usual 
 form, was permitted to make a solemn affirmation or declaration, ia 
 these words: " I, A. B., do solemnly, sincerely, and truly declare and 
 affirm," etc., which has the same force and effect in all courts of jus- 
 tice and other places where by law an oath is required, as if such 
 Quaker or Moravian had taken an oath in the usual form. And if 
 any person making such affirmation or declaration shall,be convicted 
 of having wilfully, falsely, and. corruptly affirmed or declared any 
 matter or thing, which, if the same had been sworn in the usual 
 form, would have amounted to wilful and corrupt perjury, every such 
 offender shall be subject to the same pains, penalties, and forfeitures 
 to which persons convicted of wilful and corrupt peijury are subject. 
 The same rule was, by stat. 3 16 4 W. 4, c. 82, made applicable to the 
 denomination of Christians called Separatists ; and, by stat. 1 (6 2 
 Vict. c. 77, to any person who shall have heen a Quaker or a Moravian; 
 it having been held that a person formerly a Quaker, who had seceded 
 from that sect on some points of doctrine, retaining their opinions on 
 the unlawfulness of swearing, but refused to affirm under the forms 
 given in the 3 cfi 4 TF. 4, c. 49, and 3(& iW. 4, c. 82, was not admis- 
 sible as a witness in a criminal case on making the affirmation, 
 according to the 9 G. 4, c. 32. R. v. Doran, 2 Mood. C. C. 37. (See 
 also b & &W. i, c. 62, as to declarations in lieu of oaths before 
 magistrates, etc., in certain cases; and 11 c6 12 Vict. c. 10, as to 
 oaths and declarations in the court of Chancery. By 17 d 18 Vict, 
 c. 125, ss. 20, 21 (which provisions were applicable to civil proceed- 
 ings only), if any person called as a witness, or desiring to make 
 an affidavit or deposition, should refuse or be unwilling from alleged 
 conscientious motives to be sworn, the court or judge, or other 
 presiding officer, or person qualified to take affidavits or depositions, 
 was empowered, upon being satisfied of the sincerity of such 
 objection, to permit such person, instead of being sworn, to make 
 his solemn affirmation or declaration in the words therein set forth: 
 which should be of the same force and effect as if such person 
 
Parol Ekidmce. 287 
 
 had taten an oath in the usual form, and, if falsely taken, should 
 suhject the party to the penalties of peijuiy. And now, by the stat. 
 24 & 25 Vict. c. 66, the same provisions are extended to every person 
 called as a witness in any court of criminal jui-isdiction in England 
 or Ireland, or required or desiring to make an affidavit or deposition 
 in the course of any criminal proceeding. The 17 <£: 18 Vict. c. 125, 
 ss. 20, 21, and 24 c§ 25 Vict. c. 66, did not render an atheist a com- 
 petent witness, although he might profess his belief in a moral obli- 
 gation to speak the truth, and might have no objection even to take 
 an oath. Maden v. Catanach, 1 E. & N. 360; 31 L. J., Exch. 118. 
 It seems, "however, that the evidence of an atheist is now receivable 
 by virtue of s. 4 of 32 & 33 Vict. c. 68 (Evidence Further Amend- 
 ment Act, 1869), ante, p. 285. 
 
 The form of the affirmation of a Quaker or Moravian is as fol- 
 lows : — 
 
 " /, A. B., heing one of the people called QuaJeers, (or, one of the 
 United Brethren, called Moravians,) do solemnly, sincerely and truly 
 declare and affirm that," etc. 
 
 The atfirmation of a Separatist is as follows : — 
 
 " I, A. B., do, in the presence of Almighty God, solemnly, sincerely 
 and truly declare and affirm that I am a member of the religious sect 
 called Separatists, and that the talcing of any oath is contrary to my 
 religious belief, and essentially opposed to the tenets of that sect; and 
 
 1 do also, in the same solemn manner, declare and affirm that," etc. 
 
 The affirmation or declaration prescribed by the 24 & 25 Vict, 
 c. 66, is as follows : — 
 
 " I, A. B., do solemnly, sincerely and truly affirm and declare, that 
 the talcing of amy oath is according to my religious belief unlawful; 
 and 1 do also solemnly, sincerely and truly affirm and declare," etc. 
 
 A witness producing documents under a snibpcema duces tecum need 
 not be sworn, if the party who calls him does not wish to examine 
 him. Davis v. Dale, Moo. & M. 514 : Perry v. Gibson, X A. & E. 
 48 : Summers v. Moseley, 2 C. & M. 477. 
 
 4. The Number of Witnesses requisite. 
 At common law, one witness was sufficient in all cases (with the 
 exception of perjury), both before the grand jury and at the trial. 
 
 2 Hawh. c. 46, s. 2; Post. 233. 
 
 In treason' or misprision of treason two witnesses are in general 
 required, both before the grand jury and at the trial : both of the 
 witnesses to the same overt act, or one of them to one overt act, and 
 another of them to another overt act of the same species of treason; 
 unless the defendant shall willingly, without violence, confess the 
 same. 7 (6 8 PF. 3, c. 3, ss. 2, 4. And if the jury do not give credit 
 to both of the witnesses, the defendant shall be acquitted. Per 
 Scroggs, C. J., in. R. v. Pahmr, 3 St. Tr. 56. But where the overt 
 act is composite, made up of several circumstances and passing 
 through several stages, it is not necessary that there should be two 
 witnesses to each circumstance and at each stage. It is enough 
 if the joint testimony of two or more witnesses establish the act 
 as a whole. R. v. MCagerty, 10 Cox, 603. And one witness is 
 sufficient to prove a collateral fact ; Post. 242 ; as, for instance, to 
 
288 Parol Evidence. 
 
 prove that the defendant is a natural-born subject, R. v. Vaughan, 5 
 Si. 2V. 29, or the like. 
 
 In high treason, -where the overt act alleged is the assassination 
 of the Queen, or any direct attempt against her life or person, one 
 ■witness is sufficient. 39 & 40 (?. 3, c. 93 ; 5 (6 6 Vict. c. 51, s. 1. 
 
 Upon an indictment for perjury there must be two witnesses ; one 
 alone is not sufficient, because there is in that case only one oath 
 against another. R. v. Muscat, 10 Mod. 194. But if the assign- 
 ment of peijury be directly proved by one witness, and strong cir- 
 cumstantial evidence be given by another, or be established by 
 written documents, this would be sufficient, it seems. R. t. Lee, 2 
 Rms. 660 : R. v. Shaw, L. & C. 579; 34 L. J. {M. C.) 169: see R. v. 
 Boulter, 2 Den. 396; 21 L. J. (M. C.) 67. And although every assign- 
 ment of peijuiy must be proved by two witnesses, (see R. v. Parker, 
 infra,) it is not necessary that eveiy fact which goes to make the 
 assignment of perjury should be so proved. R. v. Gardner, 8 0. c6 
 P. 737: R. V. Roberts, 1 C. & K. 607. Also, if the perjury consist 
 in the defendant's having swoi'n contrary to what he had before 
 sworn upon the same subject, this is not within the rule above men- 
 tioned; for the effect of the defendant's oath in the one case is neu- 
 tralized by his oath in the other; and proof by one witness will, 
 therefore, make the evidence against the defendant preponderate. 
 R. V. Knill, b B. & Aid. 929, n. And where the defendant had on 
 several occasions made statements (not on oath) to different persons, 
 contradictory to what he swore on the occasion on which the perjury 
 was imputed to him, and there -was also independent evidence tend- 
 ing indirectly to show that the latter statements were true, the de- 
 fendant was held to be properly convicted. R. v. Hooh, Dean. & 
 B. 606 ; 27 L. J. {M. C.) 222. But the mere contradiction of the 
 one oath of the defendant by the other is not enough. R. \. Harris, 
 bB.&AU. 926: R. v. Wheatland, 8 C. d P. 238. Where the per- 
 jury was assigned on an affidavit of the defendant that he had paid all 
 the debts under his bankruptcy, it was held that the nonpayment of 
 each debt must be proved by two witnesses. R. v. Parker, C. & 
 Mar. 639. 
 
 In all other cases one witness is sufficient. 
 
 5. Process against Witnesses. 
 
 In cases of felony, the witnesses are generally, and ought always 
 to be, bound over by i-ecognizance to appear at the trial and give 
 evidence ; and if they do not appear accordingly, the recognizance 
 may be estreated and the penalty levied. In cases of misdemeanor, 
 also, the witnesses are now bound over in the same manner. See 11 
 & 12 Vict. c. 42, s. 20. See also 19 & 20 Vict. c. 16, ss. 8 and 10, as 
 to cases where the indictment is removed for trial at the Central 
 Criminal Court, under that act. A magistrate has no power to issue 
 a warrant for the apprehension of a person to attend to find bail for 
 his appearance as a witness in a civil or criminal case. Evans v. 
 Rees, iP.<&D. 32 ; 12 A. <& E. 65; 9 L. J. (M. C.) 83. 
 
 But in all oases where the witnesses have not been so bound over, 
 and you are not certain that they will attend voluntarily, you may 
 compel their appearance at the trial, by subpoena. In ordinary cases 
 the common subpcma is sufficient. It may be sued out either at the 
 crown office in London, R. v. Ring, 8 T. R. 585, or with the clerk of 
 the peace, or clerk of assize of the court in which the defendant is 
 
Parol Evidence. 289 
 
 to be tried. It is sometimes more advisable to sue it out at the 
 crown office, on account of the readiness with which you may pro- 
 ceed afterwards against the witness by attachment, in case of his 
 non-attendance. See the form of the subpcena, 5 Burn^s J., 384 
 (30iA ed.). The names of four witnesses may be inserted in one 
 writ. 2 Cowp. 846. As soon as you have obtained the writ, make 
 out a copy of it for each witness, and serve it upon him personally, 
 at the same time showing him the writ. The service should be per- 
 sonal; for otherwise, if he disobey the suhpcena, he cannot be pro- 
 ceeded against as for a contempt. Small v. Whiimill, 2 Str. 1054. 
 And it should be served a reasonable time before the trial ; Ham- 
 mond V. Stewart, 1 Str. 510; but if the witness be in court at the 
 time of the trial, a service of the subpcena ticket upon him there 
 would perhaps be deemed sufficient, if he were subpoenaed on the 
 part of the defendant, see Cowp. 845 ; 1 W. Bl. 36, and would cer- 
 tainly be sufficient, if he were subpoenaed on the part of the prose- 
 cution. Indeed, in a criminal case a person who is present in court, 
 when called as a witness, is bound to give his evidence although he 
 has not been subpoenaed. .R. v. Sadler, 4 C & P. 218. 
 
 What we have now mentioned relates to the sei-vice of a subpcena 
 where the witness is in England. But by stat. 45 G. 3, c. 92, the 
 service of a writ of subpcena in any one pai't of the United Kingdom 
 shaU be as effectual to compel the appearance of a witness in any 
 other part of the same, as if the subpcena were served in that part of 
 the kingdom in which the defendant is required to appear ; and in 
 case of non-attendance, the court fi-om which the subpcena issued 
 may transmit a certificate thereof in the manner pointed out in the 
 statute ; and the court to which it is so transmitted may punish the 
 party for his default, in like manner as if he had refused to appear 
 to a subpcena issuing out of that court ; provided it appear that a 
 reasonable and sufficient sura of money, to defray the witness's 
 expenses of coming, attending to give evidence, and returning, were 
 tendered to him at the time he was served with the subpcena. Where 
 the witnesses reside in India, see stats. 13 G. 3, c. 63, ss. 40, 44 ; 1 
 W. 4, c. 22 ; and if the witnesses upon a prosecution for any offence 
 committed by a person in the public service reside abroad, see stat. 
 42 G. 3, c. 85. Where the subpcena, however, is served in England, 
 a tender of expenses does not seem to be necessary either on the 
 part of the crown or of the prisoner, B. v. Cooi, IC.SP. 321 ; 2 HawJo. 
 c. 46, s. 173 ; yet if the witness be so poor as not to be able to go 
 to the assizes or sessions at his own cost, the fact of the expenses 
 not having been tendered would probably be deemed by the court a 
 sufficient excuse for his non-attendance. 
 
 If any person (not being the defendant) have in his possession a 
 written instrument which may be requisite as evidence in the cause, 
 then, instead of the common subpcena, you must serve him with a 
 subpcena duces tecum, commanding him to bring it with him, and pro- 
 duce it at the trial. See tU form, Tidd's Forms, 290, s. 7 ; 1 Sellon, 
 452. It is sued out and served in the same manner as the common 
 subpcena. Upon being served with this subpcena the witness must 
 attend at the trial with the instrument required, and produce it in 
 s^iaence, unless he have some lawful and reasonable excuse for 
 withholding it ; of the validity of which excuse the court, and not the 
 witness, is to judge. Amey v. Long, 9 East, 473 : and see 5 Esp. 90. 
 It IS no excuse that the legal custody of the instrument belongs to 
 another, if it be in the actual possession of the witness ; Id.; Amey 
 
290 Parol Evidence. 
 
 V. Long, 1 Camp. 14, 180, m. ; 6 Esp. 116: Corsen v. Dubois, 1 flbZ(, 
 239; but if it tend to criminate himself, see 1 Esp. 105, or his client, 
 (if the witness be an attorney,) 4 Butt. 1637; (see a)i<e, ^. 276;) or 
 if it be his title-deed, Pickering v. Noyes, 2 D. <& E. 386 ; 1 J3. <£• C. 
 262 : R. V. Hunter, 3 C <£• P. 591, the court will not compel him to 
 produce it. If the witness, instead of bringing the papers, etc. 
 i-equired, deliver them to the opposite party, by whom they are 
 withheld, the court will allow secondary evidence of the contents of 
 them to be given, without a notice to produce the originals. Leeds 
 V. Cooh, 4 Esp. 256. A witness so producing documents need not be 
 sworn. (See ante, p. 287.) 
 
 If the witness be in civil custody at the time of the trial, the only 
 way of bringing liim into court to give evidence is by habeas corpus 
 ad testificandum. Tliis writ is obtained upon motion in eom-t or 
 application to a judge at chambers, founded upon an affidavit, stating 
 that he is a material witness. See R. v. Layer, 8 Mod. 86 ; see the 
 form, Tidd's Forms, 290, s. 8 ; CUtty's Forms, 60 ; 1 Sellon, 452. It 
 is not necessary, where the evidence of the witness is required on a 
 criminal trial, that the affidavit should state that he is willing to 
 attend. Comer, Cr. P. 118. The court will thereupon make a rule, 
 or the judge will grant his fiat for the writ. Engross the writ; see the 
 form, Tidd's Forms, 290, s. 10 ; Chitty's Forms, 61 ; and get a judge's 
 name indorsed on it. Cowp. 672. It must be directed to the officer in 
 whose custody the witness is. As soon as you get the writ signed, etc., 
 leave it with the officer to vAom it is directed; pay or tender to him his 
 reasonable charges for bringing up the witness, and he will bring him 
 into court on the day of trial, according to the emgency of the writ. A 
 prisoner in execution may now be brought up in this manner to 
 give evidence. Geery v. Hophins, 2 Ld. Raym. 851 : R. v. Bwbage, 
 3 Burr. 1440, although it was formerly holden otherwise. Barnes, 
 222; Comb. 17, 48. So, a sailor on board a king's ship may be 
 brought up by this writ, if he have been previously subpoenaed, and 
 be willing to attend. R. v. Roddam, Cowp. 672. But the court will 
 not grant the writ to bring up a prisoner of war; the proper way of 
 proceeding in that case is by application to the Secretary of State.. 
 Furley v. Newham, Doug. 420. So, where the application appeai-ed 
 to be a mere contrivance to remove a prisoner in execution, the 
 court refused to grant it. R. v. Burbage, 3 Burr. 1440. With regard 
 to witnesses in criminal custody at the time of the trial, by stat. 16 
 & 17 Vict. c. 30, s. 9, a Secretary of State, or any judge of the superior 
 courts, has the power, on application by affidavit, to issue a warrant 
 or order under his hand for bringing. up any prisoner or person 
 confined in any gaol, prison, or place, under any sentence, or under 
 commitment for trial, or otherwise (except under process in any civil 
 action, suit, or proceeding), before any court, judge, justice, or other 
 iudicature, to be examined as a witness in any cause or matter, civil 
 or criminal ; to be so brought under the same care and custody, and 
 to be dealt with in the like manner in all respects, as a prisoner 
 brought up for the like purpose under a writ of habeas corpus. 
 
 Privilege of Witnesses from Arrest."] — A person subpoenaed as a 
 witness, or bound over by recognizance, either to 'prosecute or give 
 evidence, enjoys a privilege from arrest whilst attending the court, 
 not only on the day mentioned in the subpce,na, etc., but also on every 
 day of the same sittings, assizes, or sessions, until the cause is tried ; 
 he is also privileged in like manner during a reasonable time before 
 
Parol Eoidmce. _ 291 
 
 and after the trial, whilst coming to or returning from the place where 
 the sittings, assizes, or sessions are held. See 1 H. Bl. 636 ; 2 Bl. 
 1113; 8 T.R. 536. And this privilege has also been holden to 
 extend to witnesses attending voluntarily, and not subpoenaed. See 
 Meeldns v. Smith, 1 H. Bl. 636. If a witness, under these circum- 
 stances, be arrested, the court out of which the'mbpoma issued, or 
 the judge of the court in which the cause has been or is to be tried, 
 will, upon application, order him to be discharged. See 3 Starh. 
 132. 
 
 Penalty for Non-attendance.'] — Where a,subpcena, sued out at the 
 crown office, has been served upon the witness, and he wilfully 
 neglects to attend at the sessions or assizes, etc., in obedience to it, 
 the court of Queen's Bench, upon application, will grant an attach- 
 ment against him, R. v. Bing, 8 T. B. 585, provided the witness 
 were served personally with the subpoena, Smalt v. Whitmill, 2 Str. 
 1054 : Wakejield's ease, Hardr. 313, and were served a reasonable 
 time before the trial ; Hammond v. Stewart, 1 Str. 510 : and see 
 1 Marshall, 410 ; and this, whether the cause were in fact called on 
 or not, if it satisfactorily appear that the witness would not have been 
 forthcoming when called on to give evidence. Barrow v. Humphreys, 
 3 B.SAld. 598 : Mullett v. Bunt, 1 C. & M. 762 : Dixon v. Lee, 
 1 C, M. & R. 646 : R. v. Stretch, 3 A. <& E. 503 : Lamont v. 0)-oole, 
 Q M. & W. 615. It is doubtful whether the justices at sessions, etc., 
 have authority to issue an attachment; the only mode of proceeding 
 against the witness in such a case seems to be by indictment. As 
 to the mode of proceeding where the subpoena has been served in 
 Ireland or Scotland, see ante. p. 289, and stat. 45 G. 3, c. 92. 
 
 Impireper interference with Witnesses.'] — Preventing a witness duly 
 summoned from attending court is a contempt. Commonwealth v. 
 Feely, 2 'Virg. Cas. 1. So, also, is the use of threatening language 
 to any person cognizant of facts in issue in a suit, with the view of 
 preventing him from giving testimony. Shaw v. Shaw, 2 Swab. & 
 Trist. 617. And the endeavouring to intimidate a witness from 
 giving evidence for the crown in a prosecution, is indictable as a 
 misdemeanor. B. v. Loughran, 1 Crawf. & D., C. C. 79; 2 Tayl. 
 Ev. 1136 (4iA ed.). ' 
 
 6. 'Witnessed Expenses, etc. 
 
 At common law, a witness in criminal cases was not entitled to 
 his expenses ; 2 HawJc. c. 46, s. 173 ; at least if he attended on the 
 part of the prosecution. This, in oases of felony, was provided for 
 by stats. 27 G?. 2, c. 3; 18 G. 3, c. 19 ; and 58 G?.. 3, c. 70, which did 
 not extend to cases of misdemeanor, and are now repealed. 
 
 In felonies by stat. 7 G. 4, c. 64, s. 22, the court before which any 
 person is prosecuted or tried for any felony, at the request of the 
 prosecutor, or of any other person who shall appear on recognizance 
 or subpoena to prosecute or give evidence, may order the treasurer of 
 the county, 7 G. 4, c. 64, s. 24, or if the offence be committed within 
 liberties, etc., which do not contribute to the county rates, the trea- 
 surer, overseer, or other officer having the collection and disburse- 
 ment of the rate within the liberty, etc., 7 G. 4, c. 64, s. 26; see R. v. 
 Treasurer of Oswestry, 12 Q. B. 239, to pay to the prosecutor the 
 costs and expenses incurred by him in preferring the indictment, and 
 
 o2 
 
292. Parol Evidence. 
 
 to the prosecutor and his witnesses a reasonable allowance for their 
 expenses, and for their trouble and loss of time in attending before 
 the examining magistrate, the grand jury, and otherwise carrying 
 on the prosecution, and though no bill be preferred, the court may 
 order to be paid to those who have lona fide attended the court, in 
 obedience to their recognizance or suhpcsna, a reasonable allowance 
 for their expenses and trouble and loss of time in attending before 
 the examining magistrates, and obeying the recognizance or subpoma. 
 The amount to be paid to the prosecutor and his witnesses for trouble 
 and loss of time, and expenses in attending befox-e the examining 
 magistrates, must be ascertained by the certificate of the magistrate 
 granted before the trial. 7 G. i, e. 64, s. 22. The other expenses 
 are allowed by the proper officer of the court; but the fees attendant 
 on the examination, and the allowance to the prosecutor and his 
 witnesses for attending before the magistrate, can only be allowed 
 upon the production of this certificate. And the court has no power 
 to allow the expenses of witnesses attending before the coroner, upon 
 an inquiry previous to the indictment. R. v. Rees, b C. (& P. 302: 
 R. V. Taylor, Id. 301. A party who is bound over to prosecute at a 
 superior court by a court of quarter sessions is entitled to his 
 expenses under the statute. R. v. Paine, T C. <& P. 135. And 
 where a bill has been preferred for felony, the court may allow the 
 costs of the prosecutor on his application (including those of the 
 witnesses), though neither he nor they be under recognizances, or, 
 as it seems, subpoenaed. R. v. Butterwich, IM.iS; Sob. 196. It may 
 be necessary to mention that the expenses are not allowed till after 
 the trial has actually taken place, and that therefore, when the trial 
 of a prosecution is put off, the court will make no order with 
 reference to the expenses. R. v. Hunter, 3 C & P. 591 : R. v. 
 Towng, 2 Cox, 280 ; hut see Flannery's case, 1 Lew. 133 : Bolam's 
 case, Rosa. Or. JEv. 220: R. v. Dwerryhouse, 2 Cox, 446; from which 
 it would appear that this rule, which, if strictly carried out, would 
 often work grievous hardship, is by no means inflexible. Upon 
 an indictment for felony, removed by certiorari into the Queen's 
 Bench at the instance of the prosecutor or prisoner, and tried at 
 Nisi Prius, no costs can be allowed either by the presiding judge or 
 the court of Queen's Bench. R. v. Treasurer of Exeter, 5 Man. & 
 Ry. 167. 
 
 By the same statute, in certain misdemeanors, namely, " Assaults 
 with intent to commit felony" — "Attempts to commit felony"— 
 " Eiots" — " Misdemeanors for receiving any stolen property, knowing 
 the same to have been stolen" — "Assaults upon peace officers in 
 the execution of their duty, or upon persons acting in their aid" — 
 "Neglect and breach of duty as a peace officer" — "Assaults com- 
 mitted in pursuance of any conspiracy to raise the rate of wages" — 
 " Knowingly and designedly obtaining any property by false pre- 
 tences" — " Wilful and indecent exposure of the person" — " Wilful 
 and corrupt perjury" — " Subornation of perjury," the like power was 
 given to the court to allow the expenses of the prosecutor and his 
 witnesses, and to order a reasonable compensation for their trouble 
 and loss of time, whether a bill were or were not prefeiTed : Sect. 23. — 
 That section contained a proviso that this power of the court should 
 not extend to the payment of expenses or compensation for trouble 
 and loss of time in attending before the examining magistrate ; but 
 this proviso is now repealed. 14 & 15 Vict. c. 55, s. 1. 
 By the 14 & 15 Vict. c. 55, s. 2, all the provisions of the said act of 
 
Parol Evidence. 293 
 
 the 7 (?. 4, c. 64, as amended by that act, authorizing and empower- 
 ing courts to order payment of costs and expenses, and compensation 
 for trouble and loss of time, in cases of the several misdemeanors 
 enumerated in the 7 G. 4, c. 64, s. 23, and concerning orders for pay- 
 ment of such costs, expenses and compensation, and the payment 
 thereof, and all the provisions of any other act for, concerning, or 
 applicable to the payment of such costs, expenses and compensation 
 in cases of the said misdemeanors, were to extend and be applicable 
 in the case of any of the misdemeanors hereinafter mentioned: — 
 namely, unlawfully and carnally knowing and abusing any girl, being 
 above the age of ten years, and under the age of twelve years ; un- 
 lawfully taking, or causing to be taken, any unmarried girl, being 
 under the age of sixteen years, out of the possession and against the 
 will of her father or mother, or of any other person having the lawful 
 care or charge of her; conspiring to charge any person with any felony, 
 or to indict any person of any felony; conspiring to commit any felony. 
 By the 3rd section of the same act, after reciting the 9 G. 4, c. 31, 
 s. 27, empowering justices of the peace to hear and determine com- 
 plaints of assault and battery, and, in case they shall find the assault 
 or battery complained of to have been accompanied by any attempt 
 to commit felony, or shall be of opinion that the same is from any 
 other circumstance a fit subject for a prosecution by indictment, to 
 abstain from any adjudication thereupon, and to deal with the case in 
 all respects in the same manner as they would have done before the 
 passing of the said act (which provision is re-enacted in the 24 S 25 
 Vict. c. 100, s. 46) : it is enacted, that in every case of assault so 
 brought / before such justices for summaiy decision, in which the 
 justices shall be of opinion that the same is a fit subject for prose- 
 cution by indictment, and shall thereupon bind the complainant and 
 witnesses in recognizance to prosecute and give evidence at the 
 assizes or sessions of the peace, every such court is thereby autho- 
 rized and empowered at its discretion to order payment of the costs 
 and expenses of the prosecutor and witnesses so appearing before 
 such court under such recognizance, together with compensation for 
 their trouble and loss of time, in the same manner as courts are 
 authorized and empowered to order the same in cases of felony. By 
 the 14th section of the 14 S 15 Vict. a. 19, in all prosecutions for any 
 ofience against any of the provisions of that act, the court before 
 which any such ofience should be prosecuted or tried was empowered 
 to allow the expenses of the prosecution in all respects as in cases of 
 felony. This section, however, though it is not itself expressly re- 
 pealed, has become inoperative by the repeal of all the sections of 
 that act whereby ofiences were created; see 24 c6 25 Vict. c. 95 
 (Sched.). And finally, by the 24 c6 25 Vict. c. 96, s. 121 (larceny, 
 etc.), c. 97, s. 77 (malicious injuries to property), c. 98, s. 54 (forgery), 
 and c. 100, s. 77 (offences against the person), the court, before which 
 any indictable misdemeanor against those acts respectively shall be 
 prosecuted or tried, may allow the costs of the prosecution in the 
 same manner as in cases of felony. In the. case of ofifences relating 
 to the coin, the court shall allow the expenses in cases prosecuted 
 by the treasury, and may allow them in other cases, but only in case 
 a conviction shall take place ; 24 <fc 25 Vict. c. 99, s. 42. 
 
 Where an indictment for a misdemeanor is removed by certiorari 
 by the prosecutor into the court of Queen's Bench, and tried at Nisi 
 Prius, the prosecutor and witnesses are not entitled to costs under 
 the 7 G. 4, c. 64. R. v. Johnson, 1 Mood. C. C. 173. See S. v. 
 
294 Parol Evidence. 
 
 Richards, 8 B. d; C. 420 ; 2 Man. & R. 405. It is doubtful also 
 whether, where a prosecutor is not bound over to prosecute at the 
 assizes, the court of assize has power to grant his expenses under the 
 7 G. 4, c. 64, s. 23 ; but in such a case, if the witnesses be subpoenaed, 
 the court of assize may grant their expenses under that section. R. 
 V. Jeyes, 3 A. t& E. 416. So, if the prosecutor have included his 
 name in a subpcena, though he is not bound over to prosecute, the 
 court may order him his costs as prosecutor as well as witness. R. 
 V. SJieering, 1 C.& P. 440. Where a prosecutor and witnesses were 
 bound by recognizance to appear against a prisoner at the assizes on 
 a charge of felony, but, by the advice of counsel, instead of an in- 
 dictment for felony, an indictment for a misdemeanor at common law 
 was preferi-ed, the judge made an order for the expenses of the at- 
 tendance of the prosecutor and the witnesses. R. v. Hanson, 2 CtH 
 K. 912. The court of Queen's Bench will not grant a mandamus to 
 compel the treasurer of a district to pay such expenses, in obedience 
 to the order of the court of assize : the proper remedy is to indict 
 the treasurer if he refuses to pay. R. v. Jeyes, supra; 1 Chit. Rep. 
 650. The entire order of the court must be served upon the treasurer, 
 and where the order made was to pay an aggregate sum, the details 
 being annexed, and the attorney tore off the half-sheet which con- 
 tained the details, and presented only the other, it was held that the 
 treasurer was justified in refusing to pay. R. v. Jones, 2 Mood. C. C. 
 171 ; 9 as P. 401. See 7 G. 4, c. 64, s. 26. 
 
 In felonies, and the misdemeanors mentioned in the 7 G. 4, c. 64, 
 s. 23, committed upon the high seas, the judge of the court of 
 Admiralty may order the assistant to the counsel for the Admiralty 
 to pay such costs, expenses, and compensation to the prosecutors and 
 witnesses, in the same manner as other courts may order the treasurer 
 of the county to pay the same ; 7 ff. 4, c. 64, s. 27 ; and the like power 
 is, by the 7 cfe 8 Vict. c. 2, given to the other courts which ai-e em- 
 powered thereby to try offences committed on the high seas. (Ante, 
 p. 30.) See also 17 <b 18 Vict. c. 104, ss. 267, 518. 
 
 Where an indictment or inquisition is transmitted or removed for 
 trial to the Central Criminal Court, under the provisions of the 19 & 20 
 Vict. c. 16, that court is empowered, by the 13th section of the act, to 
 order such expenses of the prosecutor and witnesses, and such other 
 expenses, and such of the several rewards payable in pursuance of any 
 statute made or to be made, as to such court shall seem reasonable 
 and sufficient, to be paid by and to the same persons and in the same 
 manner as if such court were holden under commissions of oyer and 
 terminer and gaol delivery for the county or place in which such in- 
 dictment shall have been found, or such inquisition shall have been 
 taken. By the 25th section of the same statute, where the trial at 
 the Central Criminal Court is ordered on the application of the crown, 
 the court of Queen's Bench, or a judge thereof in vacation, may issue 
 a certificate, on the production of which the Treasury may order the 
 payment to the defendant of a sum not exceeding 20Z. to enable him 
 to defray the charges of the attendance of his witnesses ; and by 
 s. 26, the Central Criminal Court may order reimbursement to the 
 defendant, if acquitted, of such sum as shall appear to have been 
 properly expended for the removal of the trial, to be paid by the 
 treasury — any sum advanced under s. 25 being allowed in such 
 payment. 
 
 As to the prosecutor's and witnesses' expenses, where the offence 
 was committed in the county of a city or town corporate, and the 
 
Parol Evidence. 295 
 
 offender tried in the next adjoining county, see 38 G. 3, c. 52 ; 51 
 G. 3, c. 100 ; 5 ce 6 W. 4, c. 76, s. 113 ; 14 ^- 15 Vict. c. 55, ss. 19 
 et seq. (ante, p. 27). 
 
 In addition to ■ these allowances, any court of oyer and terminer 
 and gaol delivery may, if any person shall appear to have been 
 active in or towards the apprehension of any person charged with 
 any of the following offences, order the sheriff of the county in 
 which the offence was committed, 7 G. 4, c. 64, s. 29 {see also 19 <& 
 20 Vict. c. 16, s. 13, supra)j to pay to such person such a sum of 
 money as shall seem reasonable and sufficient to compensate for his 
 expenses,.' exertions, and loss of time: — viz. in cases of " Murder" — 
 "Feloniously and maliciously shooting at, or attempting to discharge 
 any kind of loaded fire-arms at any other person" — " Stabbing" — 
 " Cutting" — " Poisoning" — " Administering anything to procure the 
 miscarriage of any woman " — " Rape" — " Burglary " — " Felonious 
 housebreaking "—" Robbery on the person "^" Arson" — "Horse 
 stealing" — "Bullock stealing" (which includes all cases of cattle 
 stealing of that particular description, e. g. ox, cow, heifer, &c. R. 
 v. Gillbrass, 1 C. & P. 444)—" Sheep stealing"—" Being accessory 
 before the fact to any of the offences aforesaid"—" Receiving stolen 
 property knowing it to have been stolen." 7 G. 4, c. 64, s. 28. The 
 like power is extended, by 14 & 15 Vict. c. 55, s. 8, to courts of ses- 
 sions of the peace, the compensation being limited to the sum of 51. 
 Such rewards are not confined to oases where the person appre- 
 lending has had an actual loss of time, or been at an expense. S. 
 V. Barnes, 7 C. & P. 166. If the facts on which the application is 
 grounded have not appeared in evidence, the judge will require them 
 to be laid before liim on affidavit. R. v. Jones, Id. 167. If any man 
 be killed in endeavom-ing to apprehend any person charged with any 
 of the offences before mentioned, the court may order the luider- 
 sheriff of the county to pay a sum of money to his widow, if he were 
 married ; or to his children, in case his wife be dead; or to his father 
 or mother, in case he shall have left neither wife nor child. 7 G. 4, 
 c. 64, s. 30. 
 
 It may be noticed here that there ai-e, in some cases, special statu- 
 tory provisions as to the person by whom, or the fiinds out of which, 
 the costs of a prosecution may be paid. Thus, by 7 f6 8 Vict. c. 101, 
 s. 59, it shall be lawful for any board of guardians or district board 
 to pay out of the funds in their hands the reasonable costs of the 
 prosecution of any person, who, according to the laws in force at the 
 time being, is charged with obstructing or assaulting any officer 
 engaged in the administration of the poor laws, or with fraudulently 
 obtaining, stealing, purloining, embezzling, wasting, or injuring, or 
 wilfully misapplying, any property applicable to or connected with 
 the relief of the poor, or with any offence directly affecting the admi- 
 nistration of the poor laws, and the reasonable costs of prosecuting 
 any officer who may have been employed in the administration of the 
 poor laws, for any neglect or breach of any duty of his office, or for 
 any maltreatment or abuse of any poor person. So much of these 
 costs as shall not be repaid by the offending party, or fi:om the 
 county, liberty, or borough rates are to be charged to the funds 
 specified in s. 59, supra, as amended by 28 & 29 Vict. c. 79, s. 9. 
 And where a prosecution is conducted by guardians or overseers 
 under the 24 S 25 Vict. c. 100, s. 73, post, the costs of the prosecution 
 (so far as the same ate not allowed under any order of court) shall 
 be paid out of the common fund of the union, or out of tlie funds in 
 
296 Parol Evidence. 
 
 the hands of the guardians or overseers. By 24 <& 25 Vict. c. 100, 
 s. 74, post, in case of a conviction, on indictment, of assault, the 
 defendant may be adjudged to pay to the prosecutor his actual and 
 necessary costs of the prosecution, and such moderate allowance for 
 loss of time as the court shall think reasonable. As to the costs of 
 prosecutions for offences against the bankrupt laws, see 32 S 33 Vict. 
 e. 62, s. 17, post. As to the costs of prosecutions against directors, 
 officers, managers or members of joint-stock companies, directed or 
 sanctioned under ss. 167 or 168 of the 25 <& 26 Vict. c. 89, see those 
 sections, post. As to the costs in the case of an indictment or 
 information by a private prosecutor for the publication of any de- 
 famatory libel, see 6 (fi 7 Vict. c. 96, s. 8. As to the costs of prose- 
 cutions for bribery or undue influence^t parliamentary elections, see 
 17 & 18 Vict.c. 102, ss. 10, 12, 13. ji^^ ^_i^zn-.-^W^ 
 
 The court is now empowered, in its discretion, to order payment of 
 the expenses of the witnesses for the prisoner, where they have 
 been bound by recognizance, under s. 3 of 30 S 31 Vict. c. 35, and 
 appear to give evidence on his behalf, and such expenses are to be 
 allowed as part of the expenses of the prosecution. 30 S 31 Vict. 
 c. 35, s. 5. 
 
 [As to the payment of witnesses' expenses in cases of larceny or 
 embezzlement summarily determined under 18 c6 19 Vict. c. 126, 
 or 31 <& 32 Vict. c. 116, s. 2, see the 14th section of the first-mentioned 
 statute, post, p. 312.] 
 
 7. Examination of Witnesses. 
 
 It may be necessary to premise, that, when the cause is called on, 
 or at any other period during the trial, the court, at the request of 
 the defendant, R. v. Vaughan, Holt, 689; 5 St. Tr. 20; and see 4 St. 
 Tr. 191, or indeed at the request of either party, will order such of 
 the witnesses of the opposite party as have not yet been examined, 
 or who are not under examination, to leave the court until they shall 
 be called for in their order, so that each witness may be examined out 
 of the hearing of the other witnesses on the same side who are to be 
 examined after him. Southey v. Nash, 7 C. & P. 632. The attorney 
 for either party is not within this rale. Pomeroy v. Baddeley, By. & 
 M. 430. It has been said that if, after such an order, a witness be 
 present during the examination of the other witnesses, he cannot be 
 examined; Attorney-General v. Bulpit, 9 Price, 4; but the conduct 
 of the witness seems to be no ground for depriving the crown, or the 
 defendant, of a witness, and the practice is to allow him to be ex- 
 amined, Bubiect to observation as to his conduct in disobeying the 
 order; R. v. Colley, M. & M. 329 ; although this was formerly held 
 to be a matter for the discretion of the judge. Parker Y.M'WilUom, 
 6 Bing. 683: Beamon v. Ellice, 4: C.& P. 585: Cooh v. ifethercote, 6 
 C. & P. 741 : Thomas v. David, 1 C.&P. 351. It seems now, how- 
 ever, to be the better opinion, that the judge has no right to reject 
 the testimony of a witness who has remained in court after an order 
 to withdraw; Chandler v. Home, 1 M. & Roh. 423: Cobiettv. Hvdson, 
 \ E. & B.14,; except, perhaps, in revenue cases. 2 Tayl. Ev. 1188, 
 1189 {Ath ed.). 
 
 Although in strictness it is not necessaiy for the prosecutor to call 
 every witness whose name is on the back of the indictment, it has . 
 been usual so to do, that the defendant may cross-examine them; 
 R. V. Simmonds, 1 C. & P. 84: R. v. Beezley, A C. & P. 220: B. v. 
 
Parol Evidence. 297 
 
 Bull, 9 C. & P. 22; and if the counsel will not, the judge in his dis- 
 cretion may. R. v. Holden, S C. <& P. 606. See R. v. Stroner, 1 C. 
 & K. 650. However, the prosecutor is not hound to call them all ; 
 though he ought, it has been said, to have them iu court, that they 
 may be called for the defence, if the prisoner chooses. R. v. Wood- 
 head, 2 C. & K. 520: i?. v. Casmdy, 1 F. & F. 79. If the counsel for 
 the prosecution, at the instance of the prisoner's counsel, calls a 
 witness, but does not ask him a question, the former is entitled to 
 i-e-examine the witness after he has been examined by the prisoner's 
 counsel. R. v. Harris, 7 C. cD P. 581 : see R. v. Beezley, 4 C & P. 
 
 220, post, p. mx. 
 
 It should also be mentioned, that, during the progress of the trial, 
 the judge may question the witnesses; and that, even though the 
 counsel for the prosecution has closed his case, and the counsel for 
 the defendant has taken an objection to the evidence, the judge may 
 make any further inquiries of the witness that he thinks fit, in order 
 to answer the objection. R. v. Remnant, R. & R. 136. Where, 
 after the examination of witnesses to facts on behalf of a prisoner, 
 the judge (there being no counsel for the prosecution) called back 
 and examined a witness for the prosecution, it was held that the pri- 
 soner's counsel had a right to cross-examine again if he thought it 
 material. R. v. Watson, 6 C. <& P. 653. 
 
 Where there are two prosecutions against the same party for 
 felony, the judge will not, even by consent, take the evidence on the 
 first trial as given on the second; but the witnesses may be re- 
 sworn in the second case, and their evidence read over to them from 
 the judge's notes. R. v. Foster, 7 C. & P. 495. Where, however, 
 on the trial of a prisoner, the jury not being able to agree, were 
 dischai-ged, and the prisoner was again tried before another jmy, 
 and the judge, at the request of the prisoner and of his counsel, and 
 with the consent of the counsel for the crown, instead of again taking 
 the evidence viva voce, read over to the witnesses the evidence taken 
 by himself at the first trial, asking each witness if he had anything 
 to add or alter in his evidence, and also informing the counsel for 
 the prisoner and the counsel for the crown that if either of them 
 wished to ask the witness any question he could do so, this mode of 
 taking the evidence on the second trial was strongly disapproved by 
 the Judicial Committee of the Privy Council. R. v. Bertrand, L. R., 
 1 Priv. Com. 520; Att.-Gen. of New South Wales v. Bertrand, 36 
 L. J., Pnv. Qmn. 51. S. C. See R. v. ThomhilL 8 C.&P. 575 (ante, 
 i>. 231). ' ^ ' 
 
 Examination.'] — ^After the witness has been sworn, the counsel for 
 the party who calls him proceeds to examine him. In doing this, 
 two things are principally to be attended to : 1st, that the questions 
 be pertment to the matter immediately in issue ; and 2ndly, that 
 ihey be not leading questions. 
 
 _ First. The questions must be pertinent to the matter immediately 
 m issue. No question should be asked of a witness upon a direct ex- 
 amination, the probable answer to which cannot have a tendency to 
 prove the offence or defence, or- other matter put in issue by the 
 pleadmgs. In the case of circumstantial evidence the courts of ne- 
 cessity allow of a greater latitude m this respect ; but still, in this 
 case, the questions must be such as are likely to elicit evidence of 
 facts from which the jury may reasonably presume the guilt or inno- 
 ■cenco of the prisoner. Upon an indictment for a conspiracy, general 
 
 5 
 
298 Parol Evidence. 
 
 evidence of a conspiracy charged may be reqeived in the first in- 
 stance, although it cannot affect the defendant, unless afterwards 
 brought home to him or to an agent employed by him. The Queeris 
 case, 2 Brod. & B. 302. (See ante, pp. 209, 210.) And the same rule 
 applies where a defendant seeks, by such general evidence, in the 
 first instance, to affect the prosecutor with a conspiracy to suborn 
 witnesses for the destruction of the defence, (provided the proposed 
 evidence be previously opened to the com-t,) as in the case of a pro- 
 secution for a conspiracy. Id. So, if A. commit a burglary, and B. 
 stay outside the house for the purpose of preventing an interruption; 
 upon the trial of B., the prosecutor first proves the offence committed 
 by A., and then brings the guilt home to B. by proving his share in 
 it. In these cases, however, the matter to be proved naturally 
 branches itself into two propositions, that a certain conspiracy 
 existed, and that the defendant was engaged it it ; that A. com- 
 mitted the burglary, and that B. aided and assisted him in the com- 
 mission of it. 
 
 Secondly. It is a general rule, that, in a direct examination of a 
 witness, he shall not be asked leading questions, or, in other words, 
 questions framed in such a manner as to suggest to the witness the 
 answers requii-ed of him. To this rule, however, there are a few ex- 
 ceptions. To identify a person whom the witness has already de- 
 scribed, the person may be pointed out to him, and he may be asked, 
 in direct terms, if that be the person he meant. R. v. Watsm, 2 
 Starh. 116: R. v. De Berenger, 1 Starh. Em. 125. Where a witness 
 swears to a certain fact, and another witness is called for the purpose 
 of contradicting him, the latter may be asked in direct terms whether 
 that fact ever took place. Courteen v. Touse, 1 Camp. 43. Again, 
 if the witness appear evidently to be hostile to the party who has 
 called him, the counsel may put leading questions to him, having first 
 obtained permission of the court to do so. Peake, Ev. 198 ; 2 Phil. 
 Ev. 462: Clarke v. Saffrey, Ry. & M. 126: cmd see Basten v. Carew, 
 Id. 127: R. v. CJiapman, 8 C. & P. 558: R. v. Ball, 8 C. (& P. 745. 
 And, lastly, qviestions which are merely introductory to others that 
 are material are in general allowed to be asked in direct terms, with- 
 out objection. 
 
 If an irrelevant or leading question be put, the counsel on the 
 other side should immediately interpose and object to it. So, if a 
 witness be asked whether a certain representation was made, the 
 opposite counsel may interpose, and ask him whether the representa- 
 tion in question were by parol or in writing ; for, if the latter, the 
 writing must be produced. The Queen's case, 2 Brod. & B. 292. 
 
 We have seen (a«ie, p. 269) that a witness can be allowed only 
 to speak of facts within his own knowledge and I'ecoUection, except 
 in matters of science, in which case his opinion is admissible evi- 
 dence. See R. V. Wright, R. & R. 456. He cannot, therefore, be 
 admitted to read his evidence ; 5 St. Tr. 445 ; but he will be allowed 
 to refresh his memory from any book or paper made by himself, 
 or seen and examined by him, shortly after the fact oocm-red to which 
 it relates, if he can afterwards swear to the fact from his recollection. 
 Doe V. PerJeins, 3 T. R. 749 : Kensington v. Inglis, 8 East, 289 : 
 Borcnigh v. Martin, 2 Camp. 112 : Bolton v. Tomlin, 6 A. & E. 856. 
 If he knew the fact, however, only from seeing it in the book or 
 paper, the original book or paper must be given in evidence, and 
 proved by other means. 3 T. R. 749. In like manner, depositions 
 made by an old witness have been allowed to be read to him, for the 
 
Parol Evidence. 299 
 
 purpose of refresliing his memory as to dates, etc. Vcmgltan v. 
 Martin, 1 Esp. 440. A witness cannot refresh his memorj' with a 
 copy of an instrument which might itself be used for refreshing his 
 memory, unless the copy were made by himself, or in his presence, 
 and he knew it to be correct. Burton v. Plummer, 4 Neiv. & M. 315; 
 1A.&E. 341. 
 
 It may be necessary to observe here, that when a witness is under 
 the examiaation of a junior counsel, the leading counsel may inter- 
 pose, take the witness into his own hands, and finish the examination ; 
 but after one counsel has brought his examination to a close, no 
 other counsel on the same side can put a question to the witness. 
 Doe V. Roe, 2 Camp. 280. 
 
 Cross-Examination.] — When the direct examination is finished, the 
 witness may then be cross-examined by the counsel for the opposite 
 party. Or, if the party calling a witness do not think proper to ex- 
 amine him after he is called and sworn, the witness may nevertheless 
 le cross-examined by the counsel for the opposite party. M. v. Brooh, 
 2 Stark. 472. See Morgan v. Bridges, Id. 314 : Phillips v. Eames, 
 1 Esp. 357. (See ante, p. 297.) Where a witness was called, and 
 had only answered an immaterial question, when he was stopped by 
 the judge. Gurnet/, B., ruled that the opposite party had no right to 
 a cross-examination. Creeves/ v. Can; 1 C. <& P. 64. Where A., B. 
 and C. were jointly indicted, and separately defended, and at the 
 close of the case for the prosecution C. was acquitted, and was then 
 called as a witness for A., and gave evidence tending to criminate B., 
 it was held that B.'s counsel had a right to cross-examine C, and to 
 reply. S. v. Burdett, Dears. 431 ; 24 L. J. (Jf. C.) 63: see B. v. 
 Woods, 6 Cox, 224. 
 
 When a witness is produced, the first thing that claims the atten- 
 tion of the counsel for the opposite party is, whether the witness be 
 competent, and if not, then in what manner the objection to his com- 
 petency must be made. {See ante, p. 270.) 
 
 Formerly, it was holden that the objection for incompetency must 
 have been made before the witness was sworn in chief; but it has 
 been generally allowed to be made at any time during the trial. Stone 
 V. Blackburn, 1 Esp. 37 : Turner v. Pearte, 1 T. R. 717. However, 
 it is still always advisable'to make the objection before the witness 
 has been examined in chief, and if he can be examined as to it, to 
 examine him on the voir dire; and more recent cases appear to render 
 it necessary that the objection should, in strictness, be taken at that 
 time ; see Martshome v. Watson, 5 Bing. N. C. 477 : Wollaston v. 
 Sahewill, 3 Scott, N. B. 693 ; unless the incompetency appears only 
 in the com-se of his examination in chief ; Tardley v. Arnold, 10 
 M. & W. 141 : Jacobs v. Layborn, 11 M. & W. 685. And the opposite 
 party cannot, after the witness has been sworn and examined, adduce 
 other evidence to show his incompetency. Dewdney v. Palmer, 4 
 M. & W. 664. If a judge has admitted a witness as competent to 
 give evidence, but upon proof of subsequent facts affecting the ca- 
 pacity of the witness, and upon observation of his subsequent de- 
 meanor, the judge changes his opinion as to his competency, the 
 judge may stop the examination of the witness, strike his evidence 
 out of his notes, and direct the jury to consider the case exclusively 
 upon the evidence of the other witnesses. R. v. Whitehead, L. R., 
 1 C. C. R. 33; 35 L. J. {M. C.) 186. 
 
 The next thing that claims the opposite counsel's attention, in the 
 
300 Parol Evidence. 
 
 course of the examination, is, whetlier parol evidence be tlie best evi- 
 dence of the facts to which the witness deposes ; and if not, whether 
 grounds have been laid for its admission as secondary evidence; 
 whether the questions be relevant and pertinent to the matter in 
 issue ; and whether they be leading questions. If the evidence of 
 the witness be objectionable in any of these respects, the counsel 
 should immediately interpose and make his objection. 
 
 Supposing, however, the witness and his evidence not open to these 
 preliminaiy objections, the opposite counsel must then proceed to 
 cross-examine him, if, in his judgment, a cross-examination be neces- 
 sary or advisable. In giving his evidence a witness tells the truth, 
 wholly or partially, or tells a falsehood. If he tell the whole truth, 
 a cross-examination may be dangerous, as it may have the effect of 
 rendering his story more circumstantial, and impressing the jury with 
 a stronger opinion of its truth ; it is better, in such a case, either not 
 to cross-examine him at all, or to confine your questions to his cre- 
 dibility, by impugning his means of knowledge, his disinterestedness, 
 or his integrity. (See ante, pp. 277, 278.) 
 
 If the witness tell only part of the truth, then the opposite counsel, 
 if the residue be favourable to his client, will immediately proceed to 
 cross-examine him as to it ; but, if unfavourable, the counsel will 
 either refrain altogether from cross-examining him, or will confine 
 his questions to the witness's credibility, as above mentioned. 
 
 If, on the other hand, the evidence of the witness be false, then the 
 whole force of the cross-examination must be directed to his credi- 
 bility (see ante, p. 277); and you may afterwards prove the truth by 
 other witnesses. 
 
 In cross-examining a witness, the counsel may ask him leading 
 questions ; that is, he may lead the witness, so as to bring him 
 directly to the point in which he requires the answer ; and this 
 whether the witness be a willing or an adverse one ; see Parian v. 
 Moon, 7 C & P. 408 ; but he will not be allowed to put into the 
 witness's mouth the very words he is to echo back again. Per 
 Buller, J., in R. v. Hardy, 24 How. St. Tr. 755. The questions, how- 
 ever, must be either relevant and pertinent to the matter in issue, or 
 calculated to elicit the witness's title to credit. It is not usual to 
 cross-examine witnesses to character, unless the counsel cross- 
 examining have some distinct charge oh which to cross-examine 
 them ; see R. v. Hodgkiss, 7 C. <& P. 298 ; and if the only evidence 
 called on the prisoner's part is evidence as to character, though the 
 counsel for the prosecution is in strictness entitled to a reply, it is 
 not usual to exercise it, except in extreme cases. See R. v. Siannard, 
 7 a& P. 673: R. v. Whiting, Id, 771. 
 
 When, in cross-examining a witness, you show him a letter, and he 
 admits it to be of his handwriting, the ordinary course is to have the 
 letter read as part of your evidence, after you have opened your case. 
 But formerly if it became necessary to have the letter read, in order 
 to found certain questions with relation to the contents of the letter 
 to be propounded to the witness, the court, upon application, would 
 allow the letter to be read at the time of the cross-examination, sub- 
 ject, of course, to the consequences of the letter being considered an 
 part of your evidence. The Queen's case, 2 Brod. & B. 288. It was 
 formerly necessary that you should produce the letter as your evi- 
 dence, and have it read, in order to found any question to the wit- 
 ness upon it. lb. {Seep. 281, ante.) But this rule is abolished by 
 28 Vict. c. 18, s. 5, p. 281, ante ; and you may now cross-examine a 
 
Parol Evidence. 301 
 
 ■witness upon a letter or other statement made by him in writing 
 without reading it or putting it in as your evidence. If a witness 
 refresh his memory from entries in a book, the opposite counsel may 
 cross-examine on those entries without making them his evidence, 
 and the jury may see them if they think fit ; but, if the opposite 
 counsel cross-examine as to other entries in the same book, he makes 
 them his evidence. Gregory v. Tavemer, G C. <& P. 281. If the 
 cross-examining counsel put a paper into the witness's hands, and 
 put questions on it, and anything comes of those questions, the 
 opposite counsel lias a right to see the paper, and cross-examine on 
 it ; but, if the cross-examination founded on the paper entirely fails 
 and nothing comes of it, the opposite counsel cannot demand to see 
 the paper. JJ. v. Duncomhe, 8 C. (S> P. 369. As to cross-examining 
 on the depositions, see ante, p. 281 et seq. 
 
 As to the cross-examination of a witness with regard to a.former 
 statement made by him relative to the subject-matter of the indict- 
 ment or proceeding, and inconsistent with his testimony at the 
 trial, and the proof of such statement, see 28 Vict. c. 18, s. 4, ante, p. 
 281. 
 
 As to the cross-examination of a witness as to whether he has been 
 convicted of felony or misdemeanor, and proof of such conviction, 
 see 28 Vict. c. 18, s. 6, ante, p. 280. 
 
 If, upon the trial of an indictment, it appear, on cross-exami- 
 nation of one of the witnesses for the prosecution, that J. S. was 
 employed by the prosecutor for the purpose of procuring and exa- 
 mining evidence and witnesses in support of the indictment, the 
 defendant cannot give evidence of J. S.'s having offered a bribe to 
 a certain person, to induce him to give evidence touching the matter 
 of the indictment, unless such person have been examined as a wit- 
 ness. The Queen's case, 2 Brod. <& B. 302. 
 
 Be-examination.l — If any new fact arise out of the cross-examina- 
 tion, the witness may be examined as to it by the counsel who first 
 examined him. In the same manner he may be re-examined when 
 necessary, in order to explain any part of his cross-examination. In 
 The Queen's case, it was holden, that if a witness, upon his cross- 
 examination, admit his having used certain expressions in a conver- 
 sation with a person not a pai-ty to the cause, the opposite counsel, 
 in re-examining the witness, is confined to such questions as may 
 elicit the meaning of the expressions, and the motives of the witness 
 for using them. But where a witness deposes to certain expressions 
 being used by a party to the cause, the counsel for that party is 
 entitled to re-examine the witness as to the whole of the conver- 
 sation in which the expressions occurred ; because the expressions 
 are given in evidence, in such a case, as an admission of the party, 
 and the whole of his admission should be taken together. 2 Brod. & 
 B. 294. If a witness whose name is on the back of the indictment 
 be called merely to allow the prisoner to cross-examine him, any 
 question put by the prosecutor's counsel afterwards must be con- 
 sidered as a re-examination, and nothing can be asked which does 
 not arise out of the cross-examination. R. v. Beezley, 4 C & P. 
 220. 
 
BOOK II. 
 
 PLEADING, PEACTICE, AND EVIDENCE IN PAKTICULAE 
 
 CASES. 
 
 PART I. 
 
 OFFENCES AGAINST INDIVIDUALS. 
 
 CHAPTER I. 
 
 OFFENCES AGAINST THE PKOPEETY OF INDIVIDUALS. 
 
 Sect. 1. Larceny. 
 
 2. Embezzlement 
 
 3. False Pretences and 
 
 Cheating. 
 
 4. Burglary. 
 
 Sect. 6. Arson. 
 
 6. Malicious Injuries. 
 
 7. Forgery. 
 
 8. False Personation. 
 
 Sect. 1. 
 
 L A K C E N Y. 
 
 Statutes. 
 
 14 (& 15 Vict. c. 100, s. 5 — Sow stolen Instrument may he described 
 in Indictment.'] — Ante, p. 56. 
 
 Sect. 18 — Sow Money and Banh Notes may be described in Indict- 
 ment — Not necessary to prove particular species of Coin or particular 
 nature of Banh Note.l — Anie,p. 59. 
 
 24 & 25 Vict. c. 96, s. 1 — Interpretation of Terms — Valuable Security 
 — Property.] — In the interpretation of this act, the term " valuable 
 security" shall include any order, exchequer acquittance, or other 
 security ■whatsoever entitling or evidencing the title of any person 
 or body corporate to any share or interest in any public stock or 
 fund, whether of the United Kingdom, or of Great Britain or of 
 Ireland, or of any foreign state, or in any fund of any body corporate, 
 company, or society, whether within the United Kingdom or in any 
 foreign state or country, or to any deposit in any bank, and shall 
 also include any debenture, deed, bond, bill, note, warrant, order or 
 other security whatsoever for money or for payment of money, 
 whether of the United Kingdom, or of Great Britain, or of Ireland, 
 
Larceny. 303 
 
 or of any foreign state, and any document of title to lauds or goods 
 as hereinbefore defined: 
 
 The term "property" shall include every description of real and 
 personal property, money, debts, and legacies, and all deeds and in- 
 struments relating to or evidencing the title or right to any property, 
 or giving a right to recover or receive any money or goods, and shall 
 also include, not only such property as shall have been originally in 
 the possession or under the control of any party, but also any pro- 
 perty into or for which the same may have been converted or ex- 
 changed, and any thing acquired by such conversion or exchange, 
 whether immediately or otherwise. 
 
 Sect. 2 — Distinction between Grand and Petty Larceny abolished.'] — 
 Every larceny, whatever be the value of the property stolen, shall 
 be deemed to be of the same nature, and shall be subject to the same 
 incidents in all respects as grand larceny was before the 21st day of 
 June, 1827 [i. e. before the passing of the 7 <£■ 8 (?. 4, c. 29, of the 
 second section of which statute this clause is a re-enactment] ; and 
 eveiy court, whose power as to the trial of larceny was before that 
 time limited to petty larceny, shall have power to tiy every case of 
 larceny, the punishment of which cannot exceed the punishment 
 hereinafter mentioned for simple larceny, and also to tiy all acces- 
 sories to such larceny. 
 
 Sect. 3 — Larceny hy Bailees.'] — Whosoever, being a bailee of any 
 chattel, money, or valuable security, shall fraudulently take or con- 
 vert the same to his own use, or the use of any person other than the 
 owner thereof, although he shall not break bulk or otherwise deter- 
 mine the bailment, shaU be guilty of larceny, and may be convicted 
 thereof upon an indictment for larceny; but this section shall not 
 extend to any offence punishable on summary conviction. [As to 
 larceny hy partners or joint owners of the partnership or joint property, 
 see 31 c6 32 'Vict. c. 116, s. l,post,p. 308.] 
 
 Sect. 4 — Punishment for Simple Larceny.] —Whosoever shall be 
 convicted of simple larceny, or of any felony hereby made punishable 
 like simple larceny, shall (except in the cases hereinafter otherwise 
 provided for) be liable, at the discretion of the coui-t, to be kept in 
 penal servitude for the term of three years [now five years, 27 c6 28 
 'Vict. c. 47, s. 2, ante, p. 173], — or to be imprisoned for any term not 
 exceeding two years, with or without hard labour, and with or with- 
 out solitary confinement, and, if a male under the age of sixteen 
 years, with or without whipping. 
 
 Sect. 5 — Several Counts for different Larcenies.] — It shall be lawful 
 to insert several counts in the same indictment against the same 
 person for any number of distinct acts of stealing, not exceeding 
 three, which may have been committed by him against the same 
 person within the space of six months from the first to the last of 
 such acts, and to proceed thereon for all or any of them. 
 
 Sect. 6— Election.] — If, upon the trial of any indictment for larceny, 
 it shall appear that the property alleged in such indictment to have 
 been stolen at one time was taken at different times, the prosecutor 
 shall not by reason thereof be required to elect upon which taking he 
 will proceed, unless it shall appear that there were more than three 
 takings, or that more than the space of six months elapsed between 
 
304 Larceny. 
 
 the first and the last of such takings ; and in either of such last- 
 mentioned cases the prosecutor shall be required to elect to proceed 
 for such number of takings, not exceeding three, as appear to have 
 taken place within the period of six months from the first to the last 
 ■of such takings. 
 
 Sect. 7 — Larceny after previous Conviction for Felony.'] — ^Whoso- 
 ever shall commit the offence of simple larceny after a previous con- 
 viction for felony, vrhether such conviction shall have taken place upon 
 an indictment, or under the provisions of the act passed in the session 
 held in the eighteenth and nineteenth years of Queen Victoria, chap- 
 ter one hundred and twenty-six, shall be liable, at the discretion of 
 the court, to be kept in penal sei'vitude for any term not exceeding 
 ten years and not less than three years [now seven years, 27 d; 28 
 Vict. c. 47, s. 2, ante, p. 173], — or to be imprisoned for any term not 
 exceeding two yeai-s, with or without hard labour, and with or with- 
 out solitary confinement, and, if a male under the age of sixteen 
 years, with or without whipping. 
 
 Sect. 8 — Larceny after Conviction of an indictahle Misdemeanor 
 ■under this Aet.] — Whosoever shall commit the offence of simple lar- 
 ceny, or any offence hereby made punishable like simple larceny, 
 after having been previously convicted of any indictable misde- 
 meanor pimishable under this act, shall be liable, at the discretion of 
 the court, to be kept in penal servitude for any term not exceeding 
 seven years and not less than three years \now Jive years, 27 & 28 
 Vict. c. 47, s. 2, ante, p. 173], — or to be imprisoned for any term not 
 •exceeding two years, with or without hard labour, and with or with- 
 out solitary confinement, and, if a male under the age of sixteen 
 years, with or without whipping. 
 
 Sect. 9 — Larceny after two summary Convictions.'] — Whosoever shall 
 commit the offence of simple larceny, or any offence hereby made 
 punishable like simple larceny, after having been twice summai-ily 
 convicted of any of the offences punishable upon summary conviction, 
 under the provisions contained in the act of the session held in the 
 seventh and eighth years of King George the Fourth, chapter twenty- 
 nine, or the act of the same session, chapter thirty, or the act of the 
 ninth year of King G-eorge the Fourth, chapter fifty-five, or the act 
 of the same year, chapter fifty-six, or the act of the session held in 
 the tenth and eleventh years of Queen Victoria, chapter eighty-two, 
 or the act of the session held in the eleventh and twelfth yeai's of 
 •Queen Victoria, chapter fifty-nine, or in sections three, four, five, 
 and six of the act of the session held in the' fourteenth and fifteenth 
 years of Queen Victoria, chapter ninety-two, or in this act, or the 
 act of this session, intituled " An Act to consolidate and amend the 
 Statute Law of England and Ireland relating to Malicious Injuries to 
 Property," (whether each of the convictions shall have been in 
 respect of an offence of the same desci-iption or not, and whether 
 such convictions or either of them shall have been or shall be before 
 or after the passing of this act), shall be guilty of felony, and being 
 convicted thereof shall be liable, at the discretion of the comt, to be 
 kept in penal servitude for any term not exceeding seven years, and 
 not less than three years [now five years, 27 <& 28 Vict. c. 47, s. 2, 
 ante, p. 173], — or to be imprisoned for any term not exceeding two 
 years, with or without hard labour, and with or without solitary 
 
Larceny. 305 
 
 confinement, and, if a male under the age of sixteen years, with or 
 without whipping. 
 
 Sect. 12— No Acquittal if Embezzlement proved.'] — Post, tit. "Em- 
 
 Sect. 100— Mestitution of Property.] — If any person guilty of any 
 such felony or misdemeanor as is mentioned in this act, in stealing, 
 taking, obtaining, extorting, embezzling, converting, or disposing of, 
 or in knowingly receiving, any chattel, money, valuable security, or 
 other property whatsoever, shall be indicted for such ofience by or 
 on behalf of the owner of the property, or his executor or adminis- 
 trator, and convicted thereof, in such case the property shall be 
 restored to the owner or his representative; and in every case in 
 this section aforesaid, the court before whom any person shall be 
 tried for any such felony or misdemeanor, shall have power to award 
 from time to time writs of restitution for the said property, or to 
 order the restitution thereof in a summary manner : provided, that if 
 it shall appear before any award or order made that any valuable 
 security shall have been bona fide paid or discharged by some person 
 or body corporate liable to the payment thereof, or, being a negoti- 
 able instrument, shall have been bond fide taken or received by 
 transfer or delivery by some person or body corporate, for a just and 
 valuable consideration, without any notice or without any reasonable 
 cause to suspect that the same had, by any felony or misdemeanor, 
 been stolen, taken, obtained, extorted, embezzled, converted, or dis- 
 posed of, in such case the court shall not awai'd or order the restitu- 
 tion of such security. Provided also, that nothing in this section 
 contained shall apply to the case of any prosecution of any trustee, 
 banker, merchant, attorney, factor, broker, or other agent intrusted 
 with the possession of goods or documents of title to goods, for any 
 misdemeanor against this act. [See -B. v. Stanton, 7 C.& P. 431 : R. 
 V. Powell, Id. 640. Where goods had been obtained by false pretences, 
 and pavmed by the defendant to a bond fide pavmee, an order was 
 made under this section on the pavmee for their restitution to the 
 original owner. R. v. Stancliffe, 11 Cox, 318. Where, after the 
 trial and conviction of a prisoner for larceny, the judges who presided 
 at the trial made an order, directing that property found in his posses- 
 sion when he was apprehended should be disposed of in a particular 
 manner, such property not being part of that which had been stolen, nor 
 connected thereioith, it was held that the order was bad, as the judges 
 had no jurisdiction to make it. R. v. Corporation of the City of London, 
 E. B. & E. 509; 27 L. J. (M. C.) 231: R. v. Pierce, Bell, 235. The 
 court of Queen's Bench has no power to award a writ of restitution in a 
 summary manner of stolen property. R. v. London (Lord Mayor, &c. 
 of), L. R., 4 Q. B. 371: Walker v. London {Lord Mayor, t&c. of), 
 38 L. J. (M. C.) 107. S. C. _ See also 18 S 19 Vict. c. 126, s. 8 
 (post, p. 311), giving power to justices to order restitution on convictions 
 for larceny, etc., under that act.] 
 
 Sect. 103 — Apprehension of Offenders.] — Any person found com- 
 mitting any offence punishable, either upon indictment or upon 
 summarjr conviction, by virtue of this act, except only the offence of 
 angling in the daytime, may be immediately apprehended without a 
 warrant by any person, and forthwith taken, together with such 
 pr9perty, if any, before some neighbouring justice of the peace, to be 
 dealt with according to law; and if any credible witness shall prove 
 
306 Larceny. 
 
 upon oath before a justice of the peace a reasonable cause to suspect 
 that any person has in his possession or on his premises any pro- 
 perty whatsoever on or with respect to which any offence, punishable 
 either upon indictment or upon summary conviction by virtue of 
 this act, shall have been committed, the justice may grant a warrant 
 to search for such property as in the case of stolen goods; and any 
 person to whom any property shall be offered to be sold, pawned, or 
 delivered, if he shall have reasonable cause to suspect that any 
 such offence has been committed on or with respect to such pro- 
 perty, is hereby authorized, and, if in his power, is required, to 
 apprehend and forthwith to take before a justice of the peace the 
 party offering the same, together with such property, to be dealt 
 with according to law. 
 
 Sect. 104.] — Any constable or peace officer may take into custody, 
 without warrant, any person whom he shall find lying or loitering in 
 any highway, yard, or other place, during the night, and whom he 
 shall have good cause to suspect of having committed, or being about 
 to commit, any felony against this act, and shall take such person, as 
 soon as reasonably may be, before a justice of the peace, to be dealt 
 with according to law. 
 
 Sect. 109 — Summary Conviction a Bar to other Proceedings^ — In 
 case any person convicted of any offence punishable upon summary 
 conviction by virtue of this act shall have paid the sum adjudged to 
 be paid, together with costs, under such conviction, or shall have 
 received a remission thereof from the crown, or from the lord 
 lieutenant or other chief governor in Ireland, or shall have suffered 
 the imprisonment awarded for nonpayment thereof, or the imprison- 
 ment adjudged in the first instance, or shall have been so discharged 
 from his conviction by any justice as aforesaid, in every such case 
 he shall be released from all further or other proceedings for the 
 same cause. 
 
 Sect. 114 — Venue.']— li any person shall have in his possession in 
 any one part of the United Kingdom any chattel, money, valuable 
 security, or other property whatsoever, which he shall have stolen 
 or otherwise feloniously taken in any other part of the United King- 
 dom, he may be dealt with, indicted, tried, and punished for larceny 
 or theft in that part of the United Kingdom where he shall so have 
 such propei-ty, in the same manner as if he had actually stolen or 
 taken it in that part; and if any person in any one part of the 
 United Kingdom shall receive or have any chattel, money, valuable 
 security, or other property whatsoever which shall have been stolen 
 or otherwise feloniously taken in any other part of the United King- 
 dom, such person knowing such property to have been stolen or 
 otherwise feloniously taken, he may be dealt with, indicted, tried, 
 and punished for such offence in that part of the United Kingdom 
 where he shall so receive or have such property, in the same manner 
 as if it had been originally stolen or taken in that part. 
 
 Sect. 115 — Offences committed within Jurisdiction of Admiralty.'] — 
 All indictable offences mentioned in this act which shall be com- 
 mitted within the jurisdiction of the admiralty of England or Ireland 
 shall be deemed to be offences of the same nature, and liable to the 
 same punishments, as if they had been committed upon the land in 
 England or Ireland, and may be dealt with, inquired of, tried, and 
 determined in any county or place in which the offender shall be 
 
Larceny. 307 
 
 apprehended or be in custody; and in any indictment for any sucli 
 offence or for being an accessory to any such offence the venue in 
 the margin shall be the same as if the offence had been committed 
 in such county or place, and the offence itself shall be averred to 
 have been committed " on the high seas ;" provided, that nothing 
 herein contaiaed shall alter or affect any of the laws relating to the 
 government of her Majesty's land or naval forces. 
 
 Sect. 116 — Indictment for subsequent Offence.] — In any indictment 
 for any offence punishable imder this act, and committed after a pre- 
 vious conviction or convictions for any felony, misdemeanor, or 
 offence or offences punishable upon summary conviction, it shall be 
 sufficient, after charging the subsequent offence, to state that the 
 offender was at a certain time and place or at certain times and 
 places convicted of felony, or of an indictable misdemeanor, or of an 
 offence or offences punishable upon summary conviction (as the case 
 may be), without otherwise describing the previous felony, misde- 
 meanor, offence or offences ; and a certificate containing the sub- 
 stance and effect only (omitting the formal part) of the indictment 
 and conviction for the previous felony or misdemeanor, or a copy of 
 any such summary conviction, purporting to be signed by the clerk 
 of the court or other officer having the custody of the records of the 
 court where the offender was first convicted, or to which such sum- 
 mary conviction shall have been returned, or by the deputy of such 
 clerk or officer (for which certificate or copy a fee of five shillings 
 and no more shall be demanded or taken), shall, upon proof of the 
 identity of the person of the offender, be sufficient evidence of such 
 conviction, without proof of the signature or official character of the 
 person appearing to have signed the same; and the proceedings 
 upon any indictment for committing any offence after a previous 
 conviction or convictions shall be as follows; (that is to say,) the 
 offender shall, in the first instance, be arraigned upon so much only 
 of the indictment as charges the subsequent offence, and if he plead 
 not guilty, or if the court order a plea of not guilty to be entered on 
 his behalf, the jury shall be charged, in the first instance, to inquire 
 concerning such subsequent offence only: and if they find him guilty, 
 or if on ai-raignment he plead guilty, he shall then, and not before, 
 be asked whether he had been previously convicted as alleged in 
 the indictment, and if he answer that he had been so previously 
 convicted the court may proceed to sentence him accordingly, but 
 if he deny that he had been so previously convicted, or stand mute 
 of malice, or wiU not answer directly to such question, the jury shall 
 then be charged to inquire concerning such previous conviction or 
 convictions, and in such case it shall not be necessary to swear the 
 jury again, but the oath already taken by them shall for all pui-poses 
 be deemed to extend to such last-mentioned inquiry: provided, that 
 if upon the trial of any person for any such subsequent offence such 
 person shall give evidence of his good character, it shall be lawful 
 for the prosecutor, in answer thereto, to give evidence of the convic- 
 tion of such person for the previous offence or offences before such 
 verdict of guilty shall be returned, and the jury shall inquire con- 
 cerning such previous conviction or convictions at the same time 
 that they inquire concerning such subsequent offence. 
 
 Sect. 117 — Fine amd Sureties.] — Wlienever any person shall be 
 convicted of any indictable misdemeanor punishable under this act, 
 
S08 Larceny. 
 
 the court may, if it shall think fit, in addition to oi- in lieu of any of 
 the punishments by this act authorized, fine the ofifender, and require 
 him to enter into his own recognizances and to find sureties, both or 
 either, for keeping the peace and being of good behaviour; and in 
 case of any felony punishable under this act the court may, if it shall 
 think fit, require the offender to enter into his own recognizances, 
 and to find sureties, both or either, for keeping the peace, in addition 
 to any punishment by this act authorized : provided, that no person 
 shall be imprisoned under this clause for not finding sureties for any 
 period exceeding one year. 
 
 Sect. 118 — Place and Mode of Imprisonment for Larcenies, etc.] — 
 Whenever imprisonment with or without hard labour maybe awarded 
 for any indictable offence under this act, the court may sentence the 
 offender to be imprisoned, or to be imprisoned and kept to hard 
 labour in the common gaol or house of correction. 
 
 Sect. 119 — Solitary Confinement and Whipping.'] — Whenever soli- 
 tary confinement may be awarded for any indictable offence under 
 this act, the court may direct the offender to be kept in solitary con- 
 fineraent for any portion or portions of his imprisonment, or of his 
 imprisonment with hard labour, not exceeding one month at any one 
 time, and not exceeding three months in any one year; and when- 
 ever whipping may be awarded for any indictable offence under this 
 act, the com-t may sentence the offender to be once privately whipped, 
 and the number of strokes and the instrument with which they shall 
 be inflicted shall be specified by the court in the sentence. 
 
 Sect. 121 — Costs.] — The court before which any indictable mis- 
 demeanor against this act shall be prosecuted or tried may allow 
 the costs of the prosecution in the same manner as in cases of felony; 
 and every order for the payment of such costs shall be made out, 
 and the sum of money mentioned therein paid and repaid, upon the 
 same terms and in the same manner in all respects as in cases of 
 felony. 
 
 30 (& 31 Vict. c. 35, «. 9 —Money foimd on Prisoner to be given to 
 Purchaser of Property not hnown to he stolen, on restitution of Pro- 
 perty.] — Where any prisoner shall be convicted, either summarily 
 or otherwise, of larceny or other offence, which includes the stealing 
 of any property, and it shall appear to the court by the evidence that 
 the prisoner has sold the stolen property to any person, and that 
 such person has had no knowledge that the same was stolen, and 
 that any moneys have been taken from the prisoner on his appre- 
 hension, it shall be lawful for the court, on the application of such 
 purchaser, and on the restitution of the stolen property to the pro- 
 secutor, to order that out of such moneys a sum not exceeding the 
 amount of the proceeds of the said sale be delivered to the said pur- 
 chaser. 
 
 31 & 32 Vict. c. 116, s. 1 — Larceny or Embezzlement by Partners 
 or Joint Owners of the Partnership or Joint Property.] — If any person, 
 being a member of any copartnership, or, being one of two or more 
 beneficial owners of any money, goods, or effects, bills, notes, secu- 
 rities, or other property, shall steal or embezzle any such money, 
 goods, or effects, bills, notes, securities, or other property of or 
 
Larceny. 309 
 
 belonging to any such copartnership or to such joint beneficial 
 owners, every such person shall be liable to be dealt with, tried, 
 convicted, and punished for the same as if such person had not been 
 or was not a member of such copartnership or one of such beneficial 
 
 18 & 19 Vict. c. 126*, a. 1 — Summary Jurisdiction in certain 
 Larcenies^ — Where any person is charged before any justices of the 
 peace assembled at such petty sessions as hereinafter provided with 
 having committed simple larceny, and the value of the whole of the 
 property alleged to have been stolen does not, in the judgment of 
 such justices, exceed five shillings, or with having attempted to 
 commit larceny from the person, or simple larceny, it shall be lawful 
 for such justices to hear and determine the charge in a summary 
 way, and if the person charged shall confess the same, or if such, 
 justices, after hearing the whole case for the prosecution and for the 
 defence, shall find the charge to be proved, then it shall be lawful 
 for such justices to convict the person charged, and commit him to 
 the common gaol or house of correction, there to be imprisoned, with 
 or without hard labour, for any period not exceeding three calendar 
 months, and if they find the offence not proved they shall.dismiss the 
 charge, and make out and deliver to the person charged a certificate 
 under their hands, stating the fact of such dismissal ; and every such 
 conviction and certificate respectively may be in the forms (A.) and 
 (B.) in the schedule to this act, or to the like effect: Provided 
 always, that if the person charged do not consent to have the case 
 heard and detennined by such justices, or if it appear to such justices 
 that the offence is one which, owing to a previous conviction of the 
 person charged, is punishable by law with transportation or penal 
 servitude, or if such justices be of opinion that the charge is, from 
 any other circumstances, fit to be made the subject of prosecution by 
 indictment, rather than to be disposed of summarily, such justices 
 shall, instead of summarily adjudicating thereon, deal with the case 
 in all respects as if this act had not been passed : Provided also, that 
 if upon the hearing of the charge such justices shall be of opinion 
 that there are circumstances in the case which render it inexpedient 
 to inflict any punishment, they shall have power to dismiss the person 
 charged, without proceeding to a conviction. 
 
 Sect. 2 — Consent of Accused necessary to Summary Determination of 
 Charge.'] — Where the justices before whom any person is charged as 
 aforesaid propose to dispose of the case summarily under the fore- 
 going_ provisions, one of such justices, after the examinations of all 
 the witnesses for the prosecution have been completed, and before 
 calling upon the person charged for any statement which he may 
 wish to make, shall state to such person the substance of the charge 
 against him, and shall then say to him these words, or words to the 
 like effect: "Bo you consent that the charge against you shall be 
 tried by us, or do you desire that it shall be sent for trial by a jury 
 at the sessions or assizes" (as the case may be) ; and if the person 
 charged shall consent to the charge being summarily tried and 
 determined as aforesaid, then the justices shall reduce the charge 
 
 * AU the provisions of this act are now ex- ot clerks or servants ; and this act is to he 
 
 tended and applicable to the offence of em- read as if the said offence of embezzlement 
 
 hezzlement by clerks or servants, or persons had been included therein : 81 * 32 Yicl. c. 
 
 employed tor the purpose or in the capacity 116, s. 2. 
 
310 Larceny. 
 
 into writing, and read the same to such person, and shall then ask 
 him whether he is guilty or not of such charge ; and if such person 
 shall say that he is guilty, the justices shall then proceed to pass 
 such sentence upon him as may by law be passed, subject to the 
 provisions of this act in respect to such offence ; but if the person 
 charged shall say that he is not guilty, the justices shall then inquire 
 of such person whether he has any defence to make to such charge, 
 and if he shall state that he has a defence, the justices shall hear 
 such defence, and then proceed to dispose of the case summarily. 
 
 Sect. 3 — Summary Jurisdiction in Cases of Persons pleading Guilty 
 to certain Larcenies.'] — Where any person is charged before any 
 justices at such petty sessions as aforesaid with simple larceny 
 (the property alleged to have been stolen exceeding in value five 
 shillings), or stealing from the person, or larceny as a clerk or 
 servant, and the evidence, when the case on the part of the prose- 
 cution has been completed, is, in the opinion of such justices, suffi- 
 cient to put the person charged on his trial for the offence with which 
 he is charged, such justices, if the case appear to them to be one 
 which may properly be disposed of in a summary way, and may be 
 adequately punished by virtue of the powers of this act, shall reduce 
 the charge into writing, and shall read it to the said person, and shall 
 then ask him whether he is guilty or not of the charge ; and if such 
 person shall say that he is guilty, such justices shall thereupon cause 
 a plea of guilty to be entered upon the proceedings, and shall convict 
 him of such offence, and commit him to the common gaol or house of 
 correction, there to be imprisoned, with or without hard labour, for 
 any term not exceeding six calendar months ; and eveiy such con- 
 viction may be in the form (C.) in the schedule to this act, or to the 
 like effect : Provided always, that the said justices, before they ask 
 such person whether he is guilty or not, shall explain to him that he 
 is not obliged to plead or answer before them at all, and that if he do 
 not plead or answer before them he will be committed for trial in the 
 usual course. 
 
 Sect. 4 — Defence h/ Counsel or Attorney. 1 — In eveiy case of sum- 
 maiy proceeding under this act, the person accused shall be allowed 
 to make his full answer and defence, and to have all witnesses 
 examined and cross-examined by counsel or attorney. 
 
 Sect. 5 — Power of Remand.'] — Where any person is charged before 
 any justice or justices with any offence mentioned in this act, and 
 in the opinion of such justice or justices the case may be proper to 
 be disposed of by justices in petty sessions under this act the justice 
 or justices before whom such person is so charged may, if he or they 
 see fit, remand such person for further examination to the next petty 
 sessions, in like manner in all respects as a justice or justices are 
 authorized to remand a party accused under the act 11 & 12 Vict. 
 c. 42, s. 21, or under the Petty Sessions Act (Irekmd), 1851, s. 14. 
 
 Sect. 6 — Forfeited Recognizances.] — If any person suffered to go at 
 large npon entering into such recognizance as the justice or justices 
 are authorized under the last-mentioned act to take, on the remand 
 of a party accused, do not afterwards appear pursuant to such recog- 
 nizance, then the justices before whom he ought to have appeared 
 shall certify (under the hands of two of them) on the back of the 
 
Larceny. 311 
 
 recognizance, to the clei-k of the peace of the county or place, the 
 fact of such non-appearance, and such recognizance shall be pro- 
 ceeded upon in like manner as other recognizances, and such cer- 
 tificate shall be deemed sufficient prima facie evidence of such 
 non-appearance. 
 
 Sect. 7 — Convictions and Acquittals, how proved.'] — The justices 
 adjudicating under this act shall transmit the conviction, or a dupli- 
 cate of a certificate of dismissal, with the -written charge, the depo- 
 sitions of the witnesses for the prosecution and for the defence, and 
 the statement of the accused, to the next court of general or quarter 
 sessions for the county or place, there to be kept by the proper officer 
 among the records of the court ; and a copy of such conviction or of 
 such certificate of dismissal, certified by the proper officer of the 
 court, or proved to be a true copy, shall be sufficient evidence to 
 prove a conviction or dismissal for the offence mentioned therein in 
 any legal proceeding whatever. 
 
 Sect. 8 — Restitution of Property stolen.'] — It sliall be lawful for the 
 justices, by whom any person is convicted under this act, to order 
 restitution of the property stolen, taken or obtained by false pretences, 
 in those cases in which the court before whom the person convicted 
 would have been tried but for this act may be by law authorized to 
 order restitution. [See also 30 cC 31 'Vict. c. 35, s. 9, ante, p. 308.] 
 
 Sect. 9 — Petty Sessions to be open Courts.] — Every petty sessions 
 for the purposes of this act shall be an open public coui-t, and shall 
 be the petty sessions holden for a petty sessional division [this pi'o- 
 vision is not to apply to petty sessions holden in or for the liberties of 
 the cinque ports or any part thereof, or to any other liberty or place 
 not forming and not being within a petty sessional division; 19 & 20 
 Vict. c. 118, s. 1; Mt by 27 & 28 Vict. c. 80, s. 1, the 19 & 20 Vict. 
 c. 118, s. 1, is repealed as to the cinque ports; and by s.2 of the 27 & 
 28 Vict. c. 80, '■'■ every sitting of two or more justices of the peace legally 
 acting in and for the liberties of the cinque ports or any part thereof, 
 or of the district of Romney Marsh, at any place at which such sitting 
 may for the time being be appointed to be held, shall be deemed to be a 
 'petty sessions of the peace' or ' court of petty sessions,' and the district 
 for which the same is holden shall be deemed to be a 'petty sessional 
 division,' and any officer for the time being performing the duties 
 usually performed by the cleric to the Justices of petty sessions, shall be 
 deemed to be a clerk to the justices of petty sessions, within the meaning 
 of s.d of 18 & 19 Vict. c. 126"] ; arid a written or printed notice of 
 the days and hours for holding such petty sessions shall be posted or 
 affixed by the clerk to the justices of petty sessions upon the outside 
 of some conspicuous part of the building or place where the same 
 are held. 
 
 Sect 11 — Effect of Conviction.] — Every conviction by justices in 
 petty sessions under this act shall have the same effect as a 
 conviction upon indictment for the same offence would have had, 
 save that no conviction under tliis act shall be attended with any 
 forfeiture. 
 
 Sect. 12— Proceedings a Bar to further Prosecution.] — Every person 
 who obtains a certificate of dismissal or is convicted under lias act 
 
312 Larceny. 
 
 shall be released from all fiirther or other criminal proceedings for 
 the same cause. 
 
 Sect. 13 — Proceedings not to he quashed for want of Form.] — No 
 conviction, sentence, or proceeding under this act shall be quashed 
 for want of form ; and no warrant of commitment upon a conviction 
 shall be held void by reason of any defect therein, if it be therein 
 alleged that the offender has been convicted, and there be a good 
 and valid conviction to sustain the same. 
 
 Sect. 14 — Payment of Expenses.'] — Where any charge is summarily 
 adjudicated upon under this act, or an offender is under this act 
 convicted by justices in petty sessions upon a plea of " guilty," it 
 shall be lawful for the justices by whom such charge has been 
 adjudicated upon or offender convicted, upon the request of any 
 person who has preferred the charge, or appeared to prosecute or 
 give evidence against the person charged, if such justices think fit so 
 to do, to grant a certificate to such person of the amount of the 
 compensation which such justices may deem reasonable for his 
 expenses, trouble and loss of time therein, subject nevertheless to 
 the regulations made, or to be made as hereinafter mentioned: and 
 every such certificate shall, when granted in England, have the effect 
 of an order of court for the payment of the expenses of a prosecu- 
 tion made under the act 7 G. 4, c. 64, and the acts amending the 
 same; and when granted in Ireland shall have the effect of an order 
 of court for the payment of the expenses of a pi'osecution made 
 under the act 55 G. 3, c. 91, and the acts amending the same; and 
 the amount mentioned in such certificate shall be paid in like manner 
 as the money mentioned in such order of court ; and all certificates 
 to be granted under this act shall be subject to the like regulations 
 made or to be made in relation thereto, as the certificates mentioned 
 in the said act of 7 G. 4, to be granted by examining magistrates, 
 are or may be subject to under the act 14 & 15 Vict. c. 65: Provided 
 also, that the amount of the fees payable to the clerks of the 
 magistrates in petty sessions, in respect of any proceeding under 
 this act, and of the fees payable to the clerks of the peace for filing 
 the depositions, conviction, or certificate of dismissal aforesaid, and 
 of all such expenses of apprehending the person charged, and 
 detaining him in custody, and of such other expenses as are now by 
 law payable when incurred before a commitment for trial, may be 
 added to the certificate for compensation aforesaid, and paid in the 
 like manner. 
 
 Sect. 17 — Not to affect Jwoenile Offenders Acts?^ — Nothing in this 
 act shall affect the provisions of the act 10 & 11 Vict. c. 82, "for the 
 more speedy trial and punishment of Juvenile Offenders," or of the 
 act 13 <£- 14 Vict. c. 37, " for the further extension of Summary Juris- 
 diction in Cases of Larceny," or of the Summary Jurisdiction (Ire- 
 land) Act, 1851 ; and this act shall not extend to persons punishable 
 under the said acts, so far as regards offences for which such persons 
 may be punished thereunder. 
 
 Sect. 23 — Interpretation of Terms.] — In the interpretatiou of this 
 act, " county" shall be construed to include riding, parts, liberty and 
 division of a county ; " borough" to include city, county of a city or 
 town, and town corporate ; " property" to include everything included 
 
Larceny. , 313 
 
 under the words " chattel, money, or valuable security," as used in 
 the act 1 &% O. 4, c. 29 ; and in the case of any " valuable security," 
 the value of the share, interest or deposit to which the security may 
 relate, or of the money due thereon or secured thereby, and remain- 
 ing unsatisfied, or of the goods or other valuable thing mentioned 
 in the warrant or order, shall be deemed to be the value of such 
 security. 
 
 Indictment. 
 
 Suffolk, to wit: The jurors for our lady the Queen upon their 
 oath present, that J. S., on the 1st day of June, in the year of our 
 
 Lord , three pairs of shoes, and one waistcoat, of the goods and 
 
 chattels of J. N., feloniously did steal, take, and carry away; against 
 the peace of our lady the Queen, her crown and dignity. 
 
 If the defendant has heen guilty of other distinct acts of stealing 
 (not exceeding three), committed hy him against the same person within 
 the space of six calendar months, one or two other counts (cts the case 
 may he), in the following form, may (under 24 & 25 Vict. c. 96, s. 5, 
 ante, p. 303) he added:— AtlA the jurors aforesaid, upon their oath 
 aforesaid, do further present, that the said J. S. afterwards, and within 
 the space of six calendar months from the time of the committing of 
 the said offence in the first count of this indictment charged and 
 stated, to wit, on the first day of August, in the year aforesaid, six 
 silver tea-spoons, of the goods and chattels of the said J. N., felo- 
 niously did steal, take, and carry away ; against the form of the sta- 
 tute in such case made and provided. 
 
 Felony : penal servitude for Jive [27 S 28 Vict. c. 47, s. 2, ante, p. 173] 
 years or imprisonment not exceeding two years, with or without hard 
 labour, and vnth or without solitary confinement; 24 & 25 Vict. c. 96, 
 s. 4 (ante, p. 303) ; such confinement not exceeding one month at any 
 one time, nor three months in any one year; Id. s. 119 (ante, p. 308) ; 
 and, if a male under sixteen years, with or without whipping ; Id. s. 4 
 (ante, p. 303) ; the offender, if sentenced to whipping, to be once privately 
 whipped, and the number of strokes, and the instrument with which they 
 shall be inflicted, to he specified in the sentence. Id. s. 119 (ante, 
 p. 308). The defendant may also be required to enter into his ovm 
 recognizances, and to find sureties, both or either for keeping the peace. 
 Id. s. 117 (ante, p. 307). If the defendant have previously heen twice 
 convicted summarily under the 7 ^ 8 G. 4, c. 29, the 1 & % G. 4, 
 c. 30, the 9 G. 4, cc. 65, 56, the 10 & 11 Vict. c. 82, the 11 & 12 Vict. 
 t. 59, the 14 & 15 Vict. c. 92, ss. 3, 4, 5 and 6, the 24 & 25 Vict. c. 96, 
 or the 24 & 25 Vict. c. 97, he may have sentence of penal servitude for 
 a term not exceeding seven nor less than five years, or imprisonment for 
 not more than two years, with or without hard labour, and with or 
 without solitary confinement, and, if a male under the age of sixteen 
 years, with or without whipping. Id. s. 9 (ante, p. 304). 27 & 28 
 Vict. c. 47, s. 2 (ante, p. 173). As to the punishment of simple larceny 
 after a previous conviction for felony, see 24 & 25 Vict. c. 96, s. 7 (ante, 
 p. 304) ; and as to the prunishment of simple larceny after a previous 
 conviction of an indictable misdemeanor punishable under the Larceny 
 Act, see Id. s. 8 (ante, p. 304). As to the statement and proof of the 
 former convictions, see 24 c6 25 Viet, c.%, s. 116 (ante, p. 307). 
 
 As to the sentence where the defendant is already under sentence for 
 another crime, seeT <& 8 G. 4, c. 28, s. 10 (ante, p. 173). 
 
 If it he proved that' the defendant took the property in such manner 
 as to amount in law to embezzlement, he shall not by reason thereof be 
 
 "w. p 
 
314 Larceny. 
 
 entitled to be acquitted, but tliejwy may return as their verdict that the 
 defendant is not guilty of larceny, but is guilty of embezzlement, 24 & 
 25 Vict. c. 96, s. 72, and he may he punished accordingly. But a 
 general verdict of guilty cannot be sustained upon evidence of em,bezzle- 
 ment only. R. v. Gorbutt, Dears. & B. 166 ; 26 L. J. (M. C.) 47. 
 
 Evidence.* 
 
 J'. &] — It is immaterial whether this be the correct name of the 
 defendant or not. The prosecutor has only to prove that the 
 defendant is the person who actually committed the offence; which 
 is done either by identifying him as the party who committed it, or 
 by circumstantial evidence. {See ante, p. 198.) 
 
 On the first day of June, etc.'} — The time here stated need not be 
 proved as laid : if the offence be proved to have been committed at 
 any time before or after, provided it be some day before the finding 
 of the indictment (ante,j>. 198), and at any place within the county, 
 or other extent of the court's jurisdiction (ante, p. 199), it will be 
 sufficient. Or, if it be proved that the larceny was actually com- 
 mitted by the defendant in another county, or in another part of the 
 United Kingdom, and that he carried the goods at any distance of 
 time through or into the county or other extent of the court's juris- 
 diction, it will be sufficient; unless the nature of the property be 
 changed, and the indictment be for stealing the article in its original 
 state. So, it will be sufficient if the offence be either begun or 
 completed in the county in which the defendant is indicted ; or be 
 committed within five hmidred yards of the boundary of such county. 
 And where a larceny is committed on a person, or with respect to 
 property in or upon any coach, etc., or vessel, during a journey or 
 voyage, it will be sufficient if the coach or vessel, in the progress of 
 the journey or voyage, passed thi-ough the county or by the boundary 
 of the county in which the defendant is indicted. (See ante, p 35.) 
 
 Three Pairs of Shoes, etc.2 — The species of goods must be proved 
 as laid ; for instance, upon this indictment, if the prosecutor were 
 to fail in proving that shoes, or a waistcoat, were stolen, the de- 
 fendant must be acquitted, although there were indisputable evi- . 
 dence of his having stolen other articles, unless the indictment were 
 amended according to the evidence, under 14 <£- 15 Vict. c. 100, s. 1. 
 (See ante, p. 206.) But it is not necessary that the prosecutor should 
 prove all the aa-ticles mentioned in the indictment to have been stolen; 
 if he -prove the defendant to have stolen any one 'of them (as, for 
 instance, if he prove that the defendant stole the waistcoat, or 
 one pair of the shoes), it will be sufficient. (Ante, p. 202.) Goods 
 maybe described by the name by which they are known in trade; as, 
 for instance, a set of new handkerchiefs in the piece may be described 
 as so many handkerchiefs, though they are not separated from each 
 other, if the pattern designate each, and they are considered in trade 
 as so many handkerchiefs. R. v. Nibbs, R. & R. 25. Coin may be 
 described simply as money, without specifying any particular coin, 
 and the allegation will be sustained by proof of any amount of coin, 
 though the particular species of coin of which such amount was com- 
 
 * The evidence is considered, throughout naembered that accessories before the fact 
 this book, -with reference to principal of- are now triable in aU respects as principals: 
 fenders ; it is always, however, to he re- 24 d: 25 Vict, c. 94, «. 1 (ante, p. 13). 
 
Larceny. 315 
 
 posed shall not be proved. 14 <& 15 Vict. c. 100, s. 18 (ante, p. 59). 
 See R. V. Bond, 1 Den. 517; 19 L. J. {M. C.) 138. Ingots of tin, 
 or a bar of iron, may be described as so many pounds weight of 
 tin or kon ; but where an article has obtained, in common parlance, 
 a name of its own, it would be wrong to describe it by the name of 
 the material of which it is composed. R. v. Mansfield, C. & Mar. 
 140. An indictment for a larceny of live animals need not state them 
 to be alive, because the law will presume them to be so, unless the 
 contrary be stated ; but if, when stolen, the animals were dead, that 
 fact must be stated; for as the law would otherwise presume them to 
 be alive, the variance would be fatal, unless amended. R. v. Ed- 
 wards, R. & R. 497: R. v. Halhway, 1 C. & P. 128. See R. v. Wil- 
 liams, 1 Mood. C. C. 107. But if an animal have the same appellation 
 whether it be alive or dead, and it make no difference as to the charge 
 whether it were alive or dead, it may be called, when dead, by the 
 appellation applicable to it when alive ; and it need not be stated to 
 be dead. R. y. Puckering, 1 Mood. C. C. 242. Where an indictment 
 charged a defendant with stealing " one bushel of chaff, one bushel 
 of oats and one bushel of beans," and the evidence was that the ar- 
 ticles wei-e mixed together, Bayley, J., held the description insuffi- 
 cient, and said that it should have been " a certain mixture, consisting 
 of one bushel of chaff, etc." R. v. Kettle, 3 Chit. Cr. L. 947. But in 
 a recent case, Alderson, B., doubted the propriety of this ruling, and 
 expressed an opinion, that although substances chemically mixed 
 ought to be so described, substances mechanically mixed ought to be 
 described by the names applicable to them before the mixture. R. 
 V. Bond, 1 Den. 617 ; 19 L. J. (M. C.) 138. An indictment against 
 A. for stealing, and B. for receiving a mixture of grain, is not sus- 
 tained by evidence which shows that two sorts of grain, then separate, 
 were stolen by A., mixed by him, and aftei-wards sold by him to B. 
 R. V. Robinson, i F. S F. 43. Although it is necessary to prove 
 that the prosecutor's goods have been taken, that may be proved by 
 circumstances, although the witnesses for the prosecution cannot 
 swear to the loss of the articles said to have been stolen, nor that the 
 property found upon the prisoner and alleged to have been stolen is 
 the prosecutor's. R. v. Burton, Dears. 282; 23 L. J. (M. C.) 62, ante, 
 p. 236.. See also R. v. Mochford, 11 Cox, 16. 
 
 Before the stat. 14 <& 15 Vict. c. 100, ss. 16, 17, where several 
 articles were mentioned in the indictment, the prosecutor must have 
 proved that they were aU taken at the same tune, or at several 
 times so near to each other as to form parts of one continuing 
 transaction ; otherwise the court would have put the prosecutor to 
 elect for which act of larceny he would prosecute, and obliged him 
 to confine his evidence to that. R. v. Smith, Ry. & M. 295 ; see R. 
 v. Ellis, 6 B.(& C. 145. The court, however, would not thus put 
 the prosecutor to his election, merely because the goods might have 
 been, and probably were, stolen at different times, if, from anything 
 appearing in the case, it were not impossible that they might all 
 have been stolen at one time. R. y. Dunn, 1 Mood. C. C. 146: R. v. 
 Hinley, 2 3L & Roh. 524. {See ante, p. 70.) But it was enacted bj 
 the above statute (s. 16), and this enactment is repeated in the 24 & 
 25 Vict. c. 96, s. 5, that it shall be lawful to insert several counts in 
 the same indictment against the same person, for any number of dis- 
 tinct acts of stealing, not exceeding three, which may have been 
 committed by him against the same person within the space of six 
 months from the first to the last of such acta, and to proceed thereon 
 
 p2 
 
316 Larceny. 
 
 for any or all of them. See, S. v. Lonsdale, 4 F. & F. 56, ante, p. 71. 
 And by s. 6 of the latter, re-enacting s. 17 of the former statute, if 
 upon the trial of any indictment for larceny it shall appear that the 
 property alleged in such indictment to have been stolen at one time 
 ■was taken at different times, the prosecutor shall not by reason 
 thereof be required to elect upon -which taking he will proceed, 
 unless it shall appear that there were more than three takings, or 
 that more than the space of six months elapsed between the first and 
 the last of such takings ; and in either of such last-mentioned cases 
 the prosecutor shall be required to elect to proceed for such number 
 of takings, not exceeding three, as appear to have taken place within 
 the period of six months from the first to the last of such takings. 
 See R. V. Firth, L. R., 1 C. C. R. 172 ; 38 L. J. (M. C.) 64, ante, pp. 
 72, 216. 
 
 The goods taken must, in the absence of any express statutable 
 enactment, appear in evidence to \>6 personal goods ; for none other 
 can be the subject of larceny at common law. 
 
 First. Things real, or which savour of the realty, cannot be the 
 subject of larceny at common law ; and so strict was the rule in this 
 respect that a larceny could not be committed even of title-deeds, 1 
 Hale, 510; 1 Hawh. c. 33, s. 35 ; 2 Str. 1137, or any other chai-ter 
 or writing concerning the realty, R. v. Westheer, 1 Leach, 12: iJ.v. 
 Walher, 1 Mood. C. C. 155, or even of the box in which they were 
 kept. IHale, 610; i Inst. 109. But now, to steal, or for any fraudu- 
 lent purpose to take from its place of deposit for the time being, or 
 from any person having the lawful custody thereof, or unlawfully or 
 maliciously to cancel, obliterate, injure or destroy the whole or any 
 part of any record, writ, return, panel, process, interrogatory, depo- 
 sition, aflidavit, rule, order, or warrant of attorney, or of any original 
 document whatsoever of or belonging to any court of record, or 
 relating to any matter civil or criminal, begun, pending, or terminated 
 in any such court; or of any bill, petition, answer, interrogatory, 
 deposition, affidavit, order or decree, or of any original document 
 whatsoever of or belonging to any court of equity, or relating to any 
 cause or matter begun, depending, or terminated in any such court, 
 or of any original document relating to the business of any office or 
 employment under her Majesty, and being or i-emainiug in any office 
 appertaining to any court of justice, or in any of her Majesty's castles, 
 palaces or houses, or in any government or public office, is a felony, 
 punishable by penal.servitude or imprisonment. 24 cfe 25 Vict. c. 96, 
 s. 30. And to steal, or fi-audulently destroy or conceal, either during 
 the life of the testator or after his death, any will, codicil, or other 
 testamentary instrument, whether the same relate to real or personal 
 estate, or to both. Id. s. 29, or to steal or fraudulently destroy, etc. 
 the whole or any part of any document of title to lands. Id. s. 28, 
 see also s. 1, is now a felony, punishable in like manner; without 
 prejudice, however, to any remedy which the party aggrieved by 
 the offence may have, either at law or in equity. Id. s. 29. Lands, 
 tenements and hereditaments (either corporeal or incorporeal), can- 
 not, in their nature, be taken and carried away. Of things, also, 
 which adhere to the freehold, as com, grass, trees, and the like, or 
 lead or other thing attached to a house, no larceny can be committed 
 at common law; but the severance of them was, and in many cases 
 still is, a mere trespass, and the subject of a civil action only. But it 
 was always holden at common law, that if the owner, or a stranger, 
 sever them, and another man come and steal them— or if the thief 
 
Larceny. 317 
 
 sever them at one time, and at another come and take them away — • 
 it is a larceny. 3 Inst. 109; 1 Hale, 510. And now, stealing, or 
 severing with intent to steal, the ore of any metal, or any lapis cala- 
 minaris, manganese, or mundicls:, or any wad, black cawke or black 
 lead, or any coal or cannel coal, from any mine, bed, or vein thereof 
 respectively, is felony, and punishable with imprisonment not exceed- 
 ing two years, with or without hard labour, and with or without soli- 
 taiy confinement. 24 & 26 Vict. c. 96, s. 38. To steal or cut, break, 
 root up, or otherwise destroy or damage, with intent to steal, the 
 whole or any part of any tree, sapling or shrub, or any underwood, 
 above the value of \l., i-espectively growing in any park, pleasure 
 ground, garden, orchard, or avenue, or in any ground adjoining or 
 belonging to any dwelling-house, or above the value of 51. in any 
 other situation, is felony, and punishable as simple larceny; Id. s. 32 ; 
 when the injury amounts to Is. at the least, summary punishment 
 may be imposed by fine not exceeding 5Z. above the injury done, upon 
 the first conviction: by imprisonment with hard labour, not exceeding 
 twelve months, upon the second conviction: and the third offence, 
 after two previous convictions, is felony, punishable as simple larceny. 
 Id. s. 33. To stealer cut, break, or throw down, with intent to steal, 
 any part of any live or dead fence, or any wooden post, pale, or rail, 
 set up or used as a fence, or any stile or gate, or any part thereof 
 respectively, is punishable on summary conviction by a fine not ex- 
 ceeding 51. over and above the value of the article stolen, and for the 
 second offence by imprisonment not exceeding twelve months. Id. 
 s. 34. To have possession of the whole or any part of any sapling or 
 shrub, or any underwood, or any pai-t of any live or dead fence, or 
 any post, pale, rail, stile, or gate, or any part thereof respectively, of 
 the value of Is., without satisfactorily accounting for that possession, 
 is punishable on summary conviction by a fine not exceeding 21. over 
 and above the value of the article. Id. s. 35. To steal, or destroy or 
 damage with intent to steal, any cultivated root or plant used for the 
 food of man or beast, or for medicine, or distilling, or dyeing, or for 
 or in the course of manufacture, growing in any land open or enclosed, 
 not being a garden, orchard, or nursery-ground, Id. s. 37, is punish- 
 able, upon summary conviction, by fine not exceeding 20s. over and 
 above the value of the articles, or by imprisonment not- exceeding 
 one month. To steal, or destroy or damage with intent to steal, any 
 plant, root, fi-uit, or vegetable production, growing in any garden, 
 orchard, nursery ground, hothouse, greenhouse, or conservatory, is for 
 the first offence punishable upon summaiy conviction by imprison- 
 ment, with or without hard labour, not exceeding six months, or by 
 fine not exceeding 20Z.: but the second offence is felony, punishable 
 as simple larceny. Id. s. 36. And lastly, to steal, or rip, cut or 
 ■fareak, with intent to steal, any glass or woodwork belonging to any 
 building whatsoever, or any lead, iron, copper, brass, or other metal, 
 or any utensil or fixture, whether made of metal or other material, 
 respectively fixed to any building, or anything made of metal fixed in 
 any land, being private property, or for a fence to any dwelling- 
 house, garden, or area, or in any square, street, or other place dedi- 
 cated to public use or ornament, is felony, punishable as simple 
 larceny. Id. s. 31. The offender cannot, upon an indictment for 
 this statutable felony, be convicted of simple larceny. S. v. Gooch, 
 SC.SP. 293; see R. v. Millar, 7 C. <C P. 665. 
 
 Secondly. Bonds, bills, etc. being mere choses in action, are not the 
 subject of larceny at common law, for they ai-e of no intrinsic value. 
 
3l 8 Larceny. 
 
 Cahje's case, 8 Co. 33; 1 Hawk. c. 33, s. 35. So_, it was held by ten 
 judges (Parke, B., dissenting), that, even on an indictment for steal- 
 ing a piece of paper the defendant could not be convicted of stealing 
 an agreement, though unstamped, for building certain cottages, the 
 ■work under which agreement was actually in progress. M. v. Watts, 
 Dears. 326; 23 L. J. (M. C.) 56. But by stat. 24 & 25 Vict. c. 96, 
 s. 27, to steal, or for any fraudulent purpose destroy, cancel or 
 obliterate the whole or any part of any valuable security, other than 
 a document of title to lands, is felony, of the same nature and degree, 
 and punishable in the same manner as if the offender had stolen any 
 chattel of like value with the share, interest or deposit to which the 
 security so stolen may relate, or with the money due on the security 
 so stolen, or secured thereby and remaining unsatisfied, or with the 
 value of the goods or other valuable thing represented, mentioned, 
 or referred to in or by the security. The term " valuable security" 
 shall include any order, exchequer acquittance, or other security 
 whatsoever entitling or evideneing the title of any person or body 
 corporate to any share or interest in any public stock or fund, whether 
 of the united kingdom, or of Great Britain or of Ireland, or of any 
 foreign state, or in any fond of any body corporate, company or 
 society, whether within the united kingdom or in any foreign state 
 or countiy, or to any deposit in any bank, and shall also include ajiy 
 debentm-e, deed, bond, bill, note, warrant, order, or other security, 
 whatsoever for money or for payment of money, whether of the united 
 kingdom, or of Great Britain or of Ireland, or of any foreign state, 
 and any document of title to lands or goods as hereinbefore defined. 
 Id. s. 1. Such documents cannot properly be described in the in- 
 dictment as " goods and chattels." B. v. Powell, 2 Den. 403; 21 
 L. J. {M. C.) 78. By stat. 7 TT. 4 c6 1 Vict. c. 36, s. 36, if any person 
 employed under the post-office shall steal, or for any purpose what- 
 ever embezzle, secrete, or destroy a post-letter, it is felony, punish- 
 able by penal servitude or imprisonment ; or if the letter contain a 
 chattel or money, or valuable security, by penal servitude for fife. 
 So, to steal any chattel, money, or valuable security out of a post- 
 letter, is felony, punishaljle by penal servitude for life. 7 W. idl 
 Vict. c. 36, s. 47. If any person in the public service or in the pohee 
 shall steal or embezzle any valuable security with which he is en- 
 trusted, or of which he is in possession by virtue of his employment, 
 it is felony, punishable by penal servitude or imprisonment. 24 (& 
 25 Vict. c. 96, ss. 69, 70. 
 
 Thirdly. Larceny at common law cannot be committed of things 
 which are not the subject of property, as of a corpse; R. v. Eayms, 
 2 East, P. C. 652 ; but it is a high misdemeanor to disinter a dead 
 body for the purpose of dissection, or to sell and dispose of it for 
 gain or profit. B. v. Lynn, 2 T. R. 733 : R. v. Gillies, R. & R. 366. 
 See B. V. Oundick, D. & R. N. P. 13. So, of things in which no per- 
 son has any determinate property, as treasure trove, waifs, etc. till 
 seized, it has been said that larceny cannot be committed; 1 Hale, 
 610 ; 1 Hawk. c. 33, s. 24 ; but it would seem that the true owner, 
 though unknown, has stiU a property in them, before seizure by the 
 lord, unless there be circumstances to show an intended dereliction 
 of the property. 2 East, P. C. 606, 607. The same has been said 
 of wreck. But now, to plunder or steal any part of any ship or 
 vessel in distress, wrecked, stranded, or cast on shore, or any goods, 
 merchandize, or articles of any kind, belonging to such ship or 
 vessel, is felony, punishable with penal servitude for not more than 
 
Larceny, 319 
 
 fourteen nor less than five [27 & 28 Viet. c. 47, s. 2 (ante, p. 173)] years, 
 or imprisonment for not more than two years; 24 & 25 Vict. c. 96, s. 64; 
 and to be in possession of, or to offer or expose for sale, any such goods, 
 etc., without being, able satisfactorily to account for the possession 
 thereof, is punishable vipon summary conviction by fine. Id. s. 65. 
 Again, no larceny at common law can be committed of such animals 
 in which there is no property either absolute or qualified; as of 
 beasts that axaferce naturm and unreclaimed, such as deer, hares and 
 conies in d, forest, chase or warren ; fish in an open river or pond ; 
 or wild fowls, rooks, for instance, Hannan v. MocJcett, 2 B. & C. 934; 
 4Z). & R. 518, at their natural liberty. 1 Hah, 511; Fast. 366. 
 But if they are reclaimed or confined, or are practically under the 
 cave and dominion of the prosecutor, and may serve for food, it is 
 otherwise; for of deer so inclosed in a park that they may be taken 
 at pleasure, fish in a trunk or net, pheasants or partridges in a mew; 
 1 Hale, 611 ; 1 Hawh. c. 33, s. 39: R. v. Head, 1 F. & F. 350; 
 young pheasants, hatched by a hen, and under the care of the hen 
 in a coop, although the coop is in a field at a distance from the 
 dwelling-house, and although the pheasants are designed ultimately 
 to be turned out and to become wild; B. v. Carry, 10 Cox, 23; 
 partridges about three weeks old and able to fly a little, which have 
 been hatched and reared under a common hen, and afterwards remain 
 about the prosecutor's premises with the hen as her brood and sleep 
 under her wings at night, although neither the hen nor the partridges 
 are in a coop or otherwise confined; R. v. ShicMe, L. R., 1 C. C. R. 
 158; 38 L. J. (M. C.) 21; or pigeons which, though they have free 
 access to the open air, are tame and reclaimed, and return to their 
 bouse or box;,.H. v. Howell, 2 Den. 362, n.: R. v. Broohs, A C. d P. 
 131 : R. V. Cheafor, 2 Den. 361; 21 L. J. {M. C.) 43; lai-ceny may 
 be committed. Swans, it is said, if lawfully marked, are the subject 
 of larceny at common law, although at large in a public river ; Dalt. 
 Just. c. 156 ; or whether marked or not, if they be in a private river 
 or pond. Id. So all valuable domestic animals, as horses, and all 
 animals domitce natures, which serve for food, as swine, sheep, poul- 
 tr}', and the like, and the product of any of them, as eggs, milk from 
 the cow while at pasture. Fast. 99, wool pulled from the sheep's 
 back feloniously; R. v. Martin, 1 Leach, 111 ; and the flesh of such 
 as are/ercE natures, may be the subject of larceny. 1 Hale, 511 : see 
 R. V. Gallears, 1 Den. 501; 1 C & K. 981, 982; 19 L. J. (M. C.) 13. 
 But as to all other animals which do not serve for food, such as dogs, 
 ferrets, though tame and saleable, R. v. Spearing, R. & R. 250, and 
 other creatm-es kept for whim and pleasure, stealing these does not 
 amount to larceny at common law. 1 Hale, 512; Laml. Eiren. 267; 
 Dalt. Just. 372: R. v. Robinson, Bell, 34; 28 L. J. (M. C.) 58. But 
 now, to course, hunt, snare, or carry away or kill or wound, or 
 attempt to kill or wound, any deer kept or being in the inclosed part 
 of any forest, chase or purlieu or in any inclosed land wherein deer 
 are usually kept, is felony, punishable as simple larceny; and if 
 committed in the uninclosed part of any forest, chase or purlieu, the 
 first ofience is punishable upon- summary conviction by fine not ex- 
 ceeding 50Z., and the second, after a previous conviction, is felony, 
 and punishable as simple larceny. 24 <& 25 Vict. c. 96, ss. 12, 13. 
 Summary punishment may also be imposed by fine, not exceeding 
 20/., upon any person who shall have in his possession, or upon his 
 premises with his knowledge, any deer, or the head, skin or other 
 pai-t thereof, or any snare or engine for the taking of deer, without 
 
320 Larceny. 
 
 satisfactorily accounting for sucTi possession ; Id. s. 14 ; or who shall 
 set or use any snare or engine -whatsoever for thfe purpose of taking 
 or killing deer in any part of any forest, chase, or purlieu, whether 
 inclosed or not, or in any fence or bank dividing the same from any 
 land adjoining, or in any inclosed land where deer are usually kept, 
 or shall destroy any part of the fence of any land where deer are 
 then kept. Id. s. 15. To take or kill hares or rabbits in the night- 
 time, in any warren or ground lawfully used for the breeding or 
 keeping of the same, is a misdemeanor; and to take and kill them 
 in any warren or ground in the day-time, or at any time to set any 
 snare or engine for the taking of them, is punishable upon summary 
 conviction by fine not exceeding 51. 24 <& 25 Vict. c. 96, s. 17. 
 Stealing any beast or bird ordinarily kept in a state of confinement, 
 not being the subject of larceny at common law ; Id. s. 21 ; or know- 
 ingly being in possession thereof, or of the skin or plumage thereof. 
 Id. s. 22, is in like manner punishable on summary conviction by fine 
 not exceeding 20Z., and for the second offence by imprisonment not 
 exceeding twelve months. Killing, wounding, or faking any house- 
 dove or pigeon, under such circumstances as shall not amount to 
 larceny at common law (see H. v. Brooks, i C. S P. 131), is punish- 
 able upon summary -conviction, by fine not exceeding 21., over and 
 above the value of the bird. Id. s. 23. Stealing or being in pos- 
 session of stolen dogs is now a misdemeanor, punishable summarily 
 before justices, for the first offence, by fine or imprisonment, and on 
 indictment for the second offence, by imprisonment not exceeding 
 eighteen months. Id. ss. 18, 19. To take or destroy any fish in any 
 ■water which shall run through or be in any land adjoining or belong- 
 ing to the dwelling-house of any person being the owner of such 
 water, arid having a right of fishery therein, is a misdemeanor; and 
 to take and destroy fish in any other water, being private property, 
 or in which there shall be any private right of fisheiy; and to take 
 and desti'oy fish by angling in the day-time, in either description of 
 water, is punishable upon summary conviction by fine, vaiying 
 according to the nature of the offence. Id. s. 24. And lastly, to 
 steal any oysters or oyster-brood from any oyster-bed, laying or 
 fishery, being the property of another, and sufiiciently marked out 
 or known as such, is larceny; and to use any dredge or any net, 
 instrument or engine whatsoever, within the limits of such oyster 
 fisher'v, for the purpose of taking oysters or oyster-brood, although 
 none be taken, or to drag upon the soil of any such fishery with any 
 net, instrument, or engine, is a misdemeanor. Id. s. 26. See further 
 as to the property in oysters and mussels, 31 c& 32 Vict. c. 45, ss. 61, 
 52, 65, post. 
 
 Gas passing through the consumer's pipes is the subject of larceny 
 by him, if he fraudulently appropriate it at a point before that at 
 which by his contract he is entitled to use it. R. v. White, Dears. 
 203; 22 L. J. (M. C.) 123: R. v. Firth, L. R., 1 C. C. R. 172; 38 
 L. J. {M. C.) 54. 
 
 Value.] — So long as the distinction between grand and petty lar- 
 ceny existed, it was necessary, in order to convict the defendant of 
 the former offence, to prove that the articles or some of them stolen 
 at the same time exceeded the value of 12d; but this distinction is 
 now abolished, and eveiy simple larceny, whatever be the value of 
 the property, is now of the same nature and subject to the same in- 
 cidents as grand larceny was formerly ; ante, p. 303. And although. 
 
Larceny, 321 
 
 to make a thing the subject of larceny, it must be of some value, yet 
 it need not be of the value of some coin known to the law, that is to 
 say, of a farthing at the least. R, v. Morris, 9 C. S P. 349. And 
 now, in indictments for offences in cases where the value or price of 
 the goods, etc., is not of the essence of the offence, no statement of 
 value or price is necessary in the indictment. 14 S 15 Vict. c. 100, 
 s.2i(ante,pp. 126, 127). 
 
 Of the Goods aiwl Chattels of J. N.'] — It must be proved upon the 
 trial, that the goods stolen are the absolute or special property of the 
 person thus named in the indictment. If he be misnamed, if the 
 name thus stated be not either his real name or the name by which he 
 is usually known, or if it appear that the owner of the goods is 
 another and a different person from him thus named as such in the 
 indictment, the variance, unless amended, will be fatal, and the de- 
 fendant must be acquitted., See ante, pp. 39, 202. So, if he be de- 
 scribed in the indistment as a certain person to the jurors unknown, 
 and it appear in evidence that his name is Itnown. See R. v. Walker, 
 3 Camp. 264: R. v. RoUnson, 1 Holt, 595; 2 East, P. C. 651. If 
 the name by which the prosecutor is usually known be used, it will 
 be suificient: as where "John Walter Hancock" was called in an 
 indictment " John Hancock," by which name he was itsiially called 
 and known, Parlce, J., held it to be sufficient ; R. v. Berrimann, 5 
 C. (& P. 601 ; so, where " Richard Jeremiah Pratt" was in like 
 manner called " Richard Pratt," it was holden to be suflScient ; be- 
 cause by that name he was generally known ; R. v. , & C. & P. 
 
 408; and where a prosecutrix was named in the indictment by a name 
 which she had assumed, and by which alone she was known in the 
 neighbourhood, the judges held it sufficient. R. v. Norton, R. & R. 
 510. Again, though the name of the prosecutor be misspelt, if it be 
 idem sonans, it will be sufficient. Thus " Segrave" for " Seagrave," 
 Williams \. Ogle, 2 Str. 889; "Benedetto" for " Beniditto," Ahtibol 
 V. Beniditto, 2 Taunt. 401 ; Whyneard" for " Winard," pronounced 
 " Winnyard," R. v. Foster, R. & R. 412; " M'Nicole" for " M'NicoU," 
 R. V. Wilson, 1 Den. 284; 17 L. J. {M. C.) 82, is no variance; but 
 " M'Caun and " M'Carn," R. v. Tannet, R. & R. 351 ; " Shakespeare" 
 and " Shakepear," R. v. Shakespeare, 10 East, 83 ; " Tabart" and 
 " Tarbart," Bingham v. Dickie, 5 Taunt. 814 ; and " Shutliff" and 
 " ShrrtUff," 1 Chit. 216, have been decided not to be the same in 
 sound. "Whether the names are or are not idem sonantia, is a 
 question for the jm-y. R. v. Davis, 2 Den. 231 ; 20 L. J. {M. C.) 
 
 It has already been observed, that where goods are stolen out of 
 the possession of a bailee, .they may be described in the indictment 
 as the property of the bailor or of the bailee ; ante, p. 41 ; 2 Hale, 
 181 ; although the goods were never in the real owner's possession, 
 but in that of the bailee merely ; R. v. Remnant, R. & R. 136 ; R. 
 V. Wymer, 4 C. & P. 391. As, for instance, goods left at an inn; R. 
 V. Todd, 2 East, P. C. 653; or entrusted to a person for safe keeping, 
 R. V. Taylor, 1 Leach, 356: R. v. Statham, Id.; see R. v. Ashley, 
 I C.&K. 198 ; orto a carrier to carry; R. v. Deakin, 2 East, P. C. 
 653 ; cloth to a tailor to make into clothes ; linen to a laundress to 
 wash ; R. v. Packer, Id. ; 1 Leach, 357 ; goods pawned, and the like, 
 may be laid to be the goods and chattels of the person to whom they 
 are so entrusted, etc., or of the owner, at the option of the prosecutor. 
 See 2 Hale, 181 ; 1 Hale, 513 ; 2 East, P. C. 652 ; 1 Hawk. c. 33, 
 
 p5 
 
322 Larceny, 
 
 s. 47. So, where cattle were alleged in the indictment to be the pro- 
 perty of a person, who, it appeared in evidence, was merely the 
 agister, and not the actual owner, the judges held it to be sufficient. 
 S. V. Woodward, 2 East, P. C. 663. So, where A. had taken a house, 
 in which B., his relation, carried on a trade for the benefit of A. and 
 his family, having himself neither a share in the profits nor a salary, 
 but having authority to sell any part of the stock, and to buy goods 
 for the shop, accounting to A., it was held that B. was a bailee of the 
 goods of the shop, and that they might be laid as his property. R. 
 V. Bird, ^ C. & P. 44. So, where the defendant, while a canal was 
 being cleaned out, took away some iron from the bed of the canal 
 (there being no evidence of the general property in the iron), it was 
 held to be well laid as the property of the canal company. R. v. 
 Rowe, Bell, 93; 28 L. J. {M. C.) 128. And although the goods have 
 in fact been parted with by the bailee, but under a mistake, as his 
 special property in them is not thereby devested, if a larceny of them 
 be then committed they may still be laid to be the property of such 
 bailee. R. v. Vincent, 2 Den. 464 ; 21 L. J. (M. C.) 109. Where a 
 bailor steals his own goods from his bailee, they must be described 
 as the goods of the bailee. R. v. Willdnson, R. & R. 470 : Jil. v. 
 Bramley, Id. 478. The property must not, however, be laid in one 
 who has neither the actual nor constructive possession of the goods. 
 R. V. Adams, R. <& R. 225. Thus, if it appear that the person named 
 as owner is merely servant to the real owner, the defendant must be 
 acquitted, unless the indictment be amended; 2 East, P. C. 652: R. 
 V. Hutchinson, R. & R. 412; for the servant has not a special property 
 in the goods, the possession of the servant being the possession of 
 the master. A boy of fourteen, living and working with his father, 
 whom the father left in charge of a stall of goods, was held not to be 
 a bailee in whom the property of goods stolen from the stall could be 
 laid. R. V. Green, Dears. <Sb B. 113; 26 L. J. (M. C.) 17. Where, 
 however, the money has never been in the possession of the master, 
 as where it was received by the servant for him, but he is robbed of 
 it before his arrival at home, it should be laid as the property of the 
 servant not of the master. R. v. Rudich, 8 C. <& P. 237. So where 
 the person named as owner appears to be a married woman (unless 
 /there has been a judicial separation, 20 c6 21 Vict. c. 85, s. 25, or 
 unless the wife has obtained a protection order. Id. s. 21), the de- 
 fendant must, unless the ii^dictment be amended, be acquitted, be- 
 cause in law the goods are the property of the husband; 1 Sale, 613; 
 even though she be living apart from him, upon an income arising 
 from property vested in trustees for her separate use; because the goods 
 cannot be the property of the trustees, nor can they be the property 
 of the wife, for in law she can have no property. R. v. French, 
 R. & R. 491 : see R. v. Wilford, R. & R. 517. But where goods 
 were stolen from a feme sole, and before indictment she married, 
 it was holden that describing her as the owner of the goods, by her 
 maiden name, was sufficient. R. v. Turner, 1 Leach, 536. A married 
 womaii was sent by her husband to sell sheep, and receive the money; 
 she did so, and was robbed of 51., part of the price of the sheep ; it 
 was holden that the money was propei-ly described as the property of 
 her husband. B. v. Roberts, 1 C.& P. 485. Goods let with a ready- 
 furnished lodging must be described as the goods of the lodger, and 
 not as the goods of the original owner; for the owner neither has 
 nor is entitled to the possession, and cannot maintain trespass. iJ.v. 
 Belstead, R.dR. ill: R. v. Brunmick, 1 Mood. C. C. 26. But if a 
 
Larceny. 323 
 
 larceny be committed by the lodger, then the goods maybe described 
 as the property of the owner or person letting to hire. 24 & 25 
 Vict. c. 96, s. 74: see R. v. Healey, 1 Mood. C. C. 1. Goods seized 
 under a writ otfi.fa. may be described as the property of the party 
 against whom the writ issued ; for, though they are in cuslodid legis 
 the original owner continues to have a property in them until they 
 are sold. R. v. Eastall, 2 Russ. 163. So, if A. steal the goods of 
 B., and C. steal the same goods from A., the goods may be described 
 as the goods of either ; of A., because he had the possession, and of 
 B., because the property of the true owner is not devested by the 
 tortious taking. R. v. Wilkins, 1 Leach, 522, 523. Clothes or other 
 necessaries furnished by a father to his child may, it seems, be laid 
 to be the property either of the father or of the child, particularly if 
 the child be of tender age; R. v. Hayae, 12 Co. 113 ; 2 East, P. C. 
 654 ; but it is safer, perhaps, to allege them to be the property of 
 the child. See R. v. Forsgate, 1 Leach, 463, 464, n. : R. v. Hughes, 
 C. & Mar. 593. .The prisoner worked in a mill in the same room 
 with three fellow-workmen, and was sent by them on pay night for 
 the wages of the four to the cashier of the works. The cashier 
 gave the money for the four to the prisoner, who never gave any 
 of it to his fellow-workmen. He was indicted for the larceny, and 
 it was held that the property in the money should be laid in the 
 workmen, and not in the proprietors of the works. R. v. Barnes, 
 L. R., 1. C. a R. 45 ; 35 L. J. {M. C.) 204. 
 
 Where goods are the property of several, they must be so described 
 in the indictment. But we have seen {ante, p. 42) that where goods 
 stolen are the property of partners in trade, joint tenants, parceners, 
 or tenants in common (including joint stock companies and trustees), 
 they may be described as the goods and [chattels of one or more of 
 the partners, and another, or others, as the case may be ; 7 ff. 4, 
 <;. 64, s. 14; and that, with a view to this description, it is not neces- 
 sary that a strict legal partnership should exist. Thus, where D. and 
 C. carried on business in partnership, and the widow of C. upon his 
 death acted as partner, without taking out administration, and the 
 stock was aftei-wards divided between her and the surviving partner, 
 but before the division part of the stock was stolen, it was holden 
 sufficient to describe the goods as the joint property of the surviving 
 partner and the widow, although it was objected that the children of 
 €. should have been named as joint proprietors, or that the goods 
 should have been described as the joint property of the ordinary and 
 the survivmg partner. R. v. Gahy, R. & R. 178. And where a 
 father and son took a farm upon their joint account, and kept a flock 
 of sheep, then? joint property, and the father, upon the death of his 
 son, managed thefarm for the joint benefit of himself and his son's 
 children, who were infants, it was holden, upon an indictment for 
 stealing sheep bred from the joint stock, some before and some after 
 the son's death, that the property was well laid in the father and the 
 son's children. R. v. Scott, R. <& R. 13. It has been already observed 
 (ante, p. 43), that the words " another or others," in the statute re- 
 quire attention, and that if property is described as belonging to A. 
 and another, there being more partners than two, or vice versa, the 
 variance will be fatal unless amended. Where goods are vested in 
 a body of persons not incorporated, they must not be described as 
 the property of the body, but of the individuals who constitute it, or 
 some of them, as in the case of partners, trustees, and unincorporated 
 joint-stock companies. R. v. Sherrington, 1 Leach, 513: if. v. 
 
324 Larceny, 
 
 Beacall, 1 Mood. C. C. 15. Where a Bible and hymn-book, which 
 had been presented to a Methodist society, was stolen from the 
 Methodist chapel, and were described as the property of John 
 Bennett and others, Bennett being one of the society, and also one 
 of the trustees of the chapel, Parke, B., held it to be coiTect. R. 
 V. Bolton, 5 C. <& P. 537. But when the goods of a corporation are 
 stolen, they must be laid to be the property of the corporation, m 
 their corporate name, and not in the names of the individuals who 
 compose it ; B. v. Patrick, 2 £ast, P. C. 1059 ; 1 Leach, 253 ; and 
 there is a difference upon this subject between an ancient corpora- 
 tion and a corporation newly erected ; an ancient corporation may 
 by usage have a special name differing in substance from that by 
 which they were origLaally incorporated, and they may plead and be 
 impleaded by that name ; but a corporation created within memory 
 must plead and be impleaded by the name by which they were incor- 
 porated. Hoh. 211; Noy, 54; 2 Brownl. 292; Latch, 229; 11 Co. 
 94 ; Dy. 279 ; 3 Mod. 6 ; Cro. Eliz. 351 ; 2 Bac. Ahr., Corp. (C. 3) : 
 and see also 10 Co. 87, In accordance with the rule that where 
 goods of a corporation are stolen, they should be laid to be the 
 property of the corporation in their corporate name, when goods of 
 a joint-stock company incorporated under the 25 & 26 Vict. c. 89, are 
 stolen, they should be laid as the property of the company by its 
 corporate name. See s. 18 of that statute. 
 
 Provision is likewise made by stats. 7 G. 4, c. 46, s. 9, and 1 <£■ 2 
 Vict. c. 85, for the description of property belonging to joint-stock 
 banking co-partnerships : as to which see ante, p. 43. 
 
 If a larceny be committed of goods and chattels provided for or at 
 the expense of any county, riding and division, they may be described 
 as belonging to the inhabitants of such coilnty, etc., without specifying 
 the names of any. 7 G. 4, c. 64, s. 15. Goods and chattels provided 
 for the use of the poor of any parish, township or hamlet, to be 
 used in the workhouse, or poor-house, or by the master or mistress 
 thereof, or the workmen or servants therein, may be described as 
 belonging to the overseers of the parish, etc., for the time being, 
 without specifying their names; or, if it be the workhouse of a 
 union or parish under the operation of the 4 <£ 5 TF. 4, c. 76, as the 
 property of the guardians of the poor of the union or parish. 5 t6 6 
 W. 4, c. 69, s. 7 ; 7 G. i, c. 64, s. 16. So, materials, tools or imple- 
 ments for making, altering or repairing highways (not being turn- 
 pike roads) may be described as belonging to the surveyors of the 
 highways of the parish, etc., for the time being, without specifying 
 their names. 7 G. 4, c. 64, s. 16. Property under turnpike trusts, 
 materials, tools or implements provided for making, altering or 
 repairing a turnpike road, may be described as belonging to the 
 trustees or commissioners of such road, without specifying their 
 names. 7 G. 4, c. 64, s. 17. And property under the management 
 of the commissioners of sewers may be described as belonging to the 
 commissioners of sewers within whose view, cognizance or manage- 
 ment it shall be, without specifying their names. 7 G. 4, c. 64, s. W. 
 The property of friendly societies must now be described as the 
 property of the trustee or trustees for the time being. 18 c6 19 Viet, 
 c. 63, s. 18; B.V. Loose, Bell, 269; 29 L. J. {M. C.) 132; ante, jp. 45. 
 If it is desciibed ^s the property of" A. B. and others," who are in fact 
 trustees of the society, but the indictment does not allege them to be 
 such trustees, the indictment may be amended by adding the words 
 " trustees of, &c." R. V.Marks, 10 Cox, 367. The property in money, &c., 
 
Larceny. 325 
 
 belonging to industrial and provident societies, registered under tlie 
 25 c6 26 Vict. c. 87, or 30 d; 31 Vict. c. 117, should be laid in the so- 
 ciety by its corporate name ; ante, p. 45. The property in money, 
 etc. belonging to savings banks may be laid in the trustee or trus- 
 tees for the time being " in his, her, or their proper name, without 
 further description." 26 <& 27 Vict. c. 87, s. 10. It seems also that 
 it may be laid in " A. B. (one of the trustees) and others" under 
 7 Gr. 4, c. 64, s. 14 : R. v. Bull, 1 Cox, 137. Clothes, linen or other 
 goods belonging to the hospital at Chelsea, or the commissioners 
 thereof, may be described as belonging to the " lords and others, 
 commissioners of the royal hospital for soldiers at Chelsea, in the 
 county of Middlesex." 7 G. 4, c. 16, s. 31. Moneys, chattels or 
 valuable securities stolen or embezzled by persons in the public 
 service, or by constables or other persons employed in the police of 
 any county, city, borough, district, or place whatsoever, may be 
 described as the property of the Queen. 24 (6 25 Vict. c. 96, ss. 69, 
 70. And post-letters, etc., etc., stolen or fraudulently retained, may 
 be described as the property of the postmaster-general. 7 TF. 4 c6 
 1 Vict. c. 36, s. 40. In indictments for stealing or embezzling pro- 
 perty vested in the trustee of a bankrupt by virtue of his appoint- 
 ment, such trustee may be designated as " the trustee of the property 
 of A. B., a bankrupt," without insertingthe proper name of the trustee. 
 32 <& 33 Vict. c. 71, s. 83, par. 7. See also 14 (& 15 Vict. c. 100, s. 24, 
 ante, p. 47. 
 
 Feloniously.'] — The taking and cariying away must be felonious, 
 that is, done animo furandi; or, as the civil law expresses it, lucri 
 causa; 4 JBl. Com. 232. This, indeed, is not very definite: but larceny 
 (at common law) may correctly be defined thus: the wrongful or 
 fraudulent taking and carrying away the personal goods of another, 
 from any place, with a felonious intent to convert them to the taker's 
 own use, and make them permanently his own property, without 
 the consent of the owner; 2 East, P. C. c. 16, s. 2, p. 553; the word 
 " felonious" being explained to mean that there is no colour of right 
 to excuse the act; and the " intent" being to deprive the owner, not 
 temporarily, but permanently of his property. R. v. Thurhorn, 1 Den. 
 388; 2C.&K. 831; 18 L. J. (Jf. C.) 140: R. v. Guernsey, 1 F. & F. 
 394. If the sheep of A. stray into the flock of B., and B., not know- 
 ing it, drive them home along with his own flock, and shear them, 
 this is no felony; but it would be otherwise li he did any act for the 
 purpose of concealing them, for that would indicate his knowledge of 
 their being the sheep of another. 1 Hale, 506. If, under colour of 
 arrear of rent, although none be actually due, I distrain or seize my 
 tenant's cattle, this may be a trespass, but is no felony. 1 Hale, 509. 
 If I take an estray, upon a claim of right to it as lord of the manor, 
 it is no felony, however groundless my claim may be. Id. A cre- 
 ditor who violently assaults his debtor, and so forces him then and 
 there to pay him his debt, cannot be convicted of robbery, there 
 being no felonious intent. R. y. Hemmings, 4 F. & F. 50. If a 
 servant take his master's horse without his knowledge, and bring 
 him home again ; if a man take his neighbour's plough that is left 
 in the field, and use it upon his own land, and then return it; these 
 may be trespasses, but are not felonies, 1 Hale, 599, because the re- 
 turning the thing taken sufficiently evinces that the party, when he 
 took it, had no intention to deprive the owner of it, or to convert it 
 to his own use. Returning the goods, however, can be considered 
 
326 Larceny. 
 
 merely as evidence of the defendant's intention when he took them; 
 for if it appear that he took them originally with the intent of de- 
 priving the owner of them, and of appropriating them to his own use^ 
 his afterwards returning them will not purge the offence. See 1 
 Hawh. c. 34, s. 2; 1 Hale, 633. In R. v. Phillips, 2 East, P. C. 662, 
 663, it was proved that the defendants took two horses out of the 
 prosecutor's stable at night without his leave, and having ridden them 
 about thirty miles, left them at an inn, desiring care to be taken of 
 them, and saying that they should return in three hours; the defen- 
 dants were taken on the same day at the distance of fourteen miles 
 fi-om the inn, walking in a direction from it: the jury found the de- 
 fendants guilty, but at the same time found specially that the de- 
 fendants meant merely to ride the horses the thirty miles, and to 
 leave them there, without an intention to retm-n for them, or other- 
 wise dispose of them; and ten of the judges held that this was no 
 felony, as there was no intention in the prisoners to change the 
 property, or make it their own. So, where the servant of a tanner 
 took out of his master's warehouse dressed skins of leather, with 
 intent to bring them in and charge them as his own work (which 
 they were not), and to get paid by his master for them, this was held 
 to be no larceny. R. v. Holloway, 1 Den. 370; 2 C. & K. 942; 18 
 L. J. (M. C.) 60: see R. v. Webh, 1 Mood. C. C. 431: R. v. Poole, 
 Dears. & B. 345; 27 L. J. (M. C.) 53. See also and compare R. v. 
 Richards, 1 C. & K. 532, ^osi,^. 328. But where the jury found the 
 defendant guilty of larceny in stealing plate, but recommended him 
 to mercy on the ground that 'they believed he ultimately intended 
 (not saying when he so intended) to return the property, this state- 
 ment was held not to qualify the verdict, so as to bring the case 
 within the principle of the above decisions. R. v. Trehilcock, Dears. 
 & B. 453; 27 L. J. (M. C.) 103. And where A. took B.'s goods 
 wrongfully, and offered them for sale to B., as the goods of another, 
 he was held guilty of larceny. R. y.Sall, 1 Den. 381; IC.&K. 947; 
 18 L. J. {M. C.) 62: see R. v. Manning, Dears. 21; 22 L. J. (M. C.) 
 21. Where, upon an indictment for larceny, it appeared that the 
 prisoner had clandestinely taken the goods alleged to have been 
 stolen from a young woman, for the mere purpose of inducing her 
 to call for them, that he might have an opportunity of soliciting her 
 to commit fornication with him, the judges held this not to be a 
 felonious taking. R. v. Dickinson, R. <& R. 420. So, where the 
 captain of a ship, taken as a prize, secreted some of the cargo, and 
 clandestinely removed it from thd ship, it being doubtful whether he 
 did so for his own benefit or for that of his owners, he was recom- 
 mended for a free pardon; but the majority of the judges were of ' 
 opinion that if the goods had been secreted for his own benefit, it 
 would have amounted to larceny. R. v. Van Mviyen, R. & R. 118. 
 And where a person stole certain articles, and also took a horse, not 
 with an intention to steal it, but merely to get off more conveniently 
 with the property, this was holden not to be a felonious stealing of 
 the horse. R. v. Crump, 1 C. & P. 658. Where the prosecutor met 
 the prisoner, whom he knew to be a poacher, and seized him, and the 
 prisoner, being rescued, seized the gun of the prosecutor, and ran 
 away with it, and subsequently was heard to say that he would sell 
 it, and the gun was never afterwards heard of, Vaughan, B., upon an 
 indictment for stealing the gun, told the jury that it would not be 
 felony if the prisoner took the gun under .an impression at the time 
 that it might be used so as to endanger his life, and not with an inten- 
 
Larceny. 327 
 
 tion of disposing, of it, although he might afterwards have determined 
 to dispose of it; and the jury being of opinion that he had no intention 
 of disposing of the gun at the time he took it, acquitted the prisoner. 
 R. V. Holloway, b C. & P. 524. Where A., at the instigation of a 
 police officer, concerted with three persons to commit a felony, in 
 order that the officer might apprehend them, and upon their convic- 
 tion receive the reward, which was to be divided between the officer 
 and A., and A. with the others did commit the felony, it was holden 
 by the majority of the judges, that A. had not the felonious intention 
 necessaiy to make him a principal, although he acted from a bad 
 motive, namely, the reward, because he was present not to aid and 
 assist, but to detect, and had no intention that the felony should be 
 successful. R. v. Dannelly, R. & R. 310; 2 Marsh. 571. There are 
 cases, however, which go to establish that it is not necessary that 
 the taking should be lacri causa, if it be fraudulent, and with intent 
 wholly to deprive the owner of the property. Thus, where a prisoner, 
 to screen his accomplice, who was indicted for horse stealing, broke 
 into the prosecutor's stable and took away the horse, which he backed 
 into a coal-pit and killed, and it was objected at the trial that this 
 was not larceny, because the taking was not with an intention to 
 convert the horse to the use of the taker, animofurandi et lucri causa; 
 seven of the judges held that it was larceny, and six of that majority 
 were of opinion that, to constitute larceny, it was not essential that 
 the taking should be lucri causa, if it be fraudulent, and with intent 
 wholly to deprive the owner of the property; but some of this majority 
 thought that the object of the prisoner might be deemed a benefit, and 
 the taking lucri causa. R. v. Cabbage, R. & R. 292. Again, where 
 the pi'isoners, servants in husbandry, opened the granaiy of their 
 master by means of a false key, and took thereout two bushels of 
 beans to give to their master's horses, in addition to the quantity 
 usually allowed, this was holden larceny by a majority of the judges; 
 but it was alleged by some of the judges that the additional quantity 
 of beans would diminish the work of the men who had to look after 
 the horses; and therefore the lucri causa, to give themselves ease, was 
 an ingredient in the offence. R. v. Morfitt, R. & R. 307. See R. v. 
 Gruncell, 9 C. & P. 365: R. v. Handley, C. & Mar. 547: R. v. 
 Privett, 1 Den. 193; 2 C. & K. 114; which latter cases established 
 that this was larceny, even if the intent of obtaining a private 
 benefit be negatived. The law, however, upon this subject has now 
 been altered by 26 & 27 Vict. c. 103, s. 1, which enacts, that " if any 
 servant shall, contrary to the orders of his master, take from his 
 possession any com, pulse, roots, or other food, for the purpose of 
 giving the same or of having the same given to any horse or other 
 animal belonging to or in the possession of his master, the servant 
 so offending shall not by reason thereof be deemed guilty of or be 
 proceeded against for felony, but shall, on conviction of such offence 
 before two justices of the peace, at their discretion, either be im- 
 prisoned, with or without hard labour, for any term not exceeding 
 three months, or else shall forfeit and pay such penalty as shall 
 appear to them to be meet, not exceeding the sum of hi., and if such 
 penalty shall not be paid, either immediately after the conviction, or 
 within such period as the said justices shall at the time of the convic- 
 tion appoint, the servant so offending shall be imprisoned, with or 
 without hard labour, for any term not exceeding three months, unless 
 .such penalty be sooner paid : Provided always, that if upon the 
 hearing of the charge the said justices shall be of opinion that the 
 
328 Larceny. 
 
 same is too trifling, or that there are circumstances in the case 
 which render it inexpedient to inflict any punishment, they shall 
 have power to dismiss the charge without proceeding to a conviction: 
 Provided also, that if upon the trial of any servant for feloniously 
 taking from his master any corn, pulse, roots, or other food con- 
 sumable by horses or other animals, such servant shall allege that 
 he took the same under such circumstances as would constitute an 
 offence punishable under this act, and thereof shall satisfy the jury 
 charged with his trial, then it shall be lawful for such jury to return 
 a verdict accordingly; and thereupon the court before which such 
 trial shall take place, shall proceed to award such punishment 
 against such servant as may be awarded by two justices of the peace 
 on the conviction of any person under the provisions of this act: 
 Provided also, that in case of rfon-payment of any penalty to be 
 imposed by the court on such servant, he shall be imprisoned, with 
 or without hard labour, for any term not exceeding three months, as 
 the court shall order, unless such penalty be sooner paid." Where 
 the defendant was supplied by his master with pig-iron to be put 
 into a furnace to be melted, being paid according to the weight of 
 the metal which ran out of the furnace into bars, and he put in also 
 other iron belonging to his master, whereby the weight of the melted 
 iron, being thus increased, he gained a larger remuneration, it was 
 held that if he did this with the felonious intent of converting the 
 iron to a purpose for his own profit, it was a larceny. R. v. Richards, 
 IC. & K. 532. See and compare R. v. HoUoway, 1 Den. 370; 18 L.J. 
 (-/I/. C) 60, ante, p. 326. So, the secreting and destroying of a post- 
 letter in the hope of suppressing inquiries supposed by the defendant 
 to be made in it respecting her character, was held to be larceny. 
 R. V. Jones, 1 Den. 188; 2 C. & K. 236. Money was given to the 
 prisoner by the prosecutor, his master, for the purpose of paying a 
 turnpike toll on his journey about his master's business. Some days 
 afterwards the prisoner was asked by his master if he had paid the 
 toll. He said that he had not, having gone by another road by 
 which he had evaded the turnpike, and that he had spent the money 
 on beer for himself and his mates. The prisoner was convicted of 
 larceny of the money, but it not appearing, on a case reserved as to 
 whether these facts proved a larceny, that the question of felonious 
 intent had been distinctly left to the jury, the conviction was quashed. 
 R. V. Deering, 11 Cox, 298. Cockbum, C. J., Bramwell, B., and 
 M. Smith, J., seemed to be of opinion that the facts did not disclose 
 any felonious intent. Id. 300, 301. 
 
 In all cases of larceny, the questions whether the defendant took 
 the goods knowingly or by mistake — -whether he took them honafide 
 under a claim of right, or otherwise — and whether he took them with 
 an intent to return them to the owner, or fraudulently, with an intent 
 to deprive the owner of them altogether, and to appropriate or con- 
 vert them to his own use — are questions entirely for the consideration 
 of the jury, to be determined by them upon a view of the particular 
 facts of the case. 
 
 Tafe.]— There must be a talcing of the goods, either actual or con- 
 structive, in order to constitute larceny. Therefore, if a wife carry 
 away and convert to her own use the goods of her husband, it-is no 
 larceny, for husband and wife are one person in law, and consequently 
 there can be no taking so as to constitute larceny; 1 Hale, 514; and 
 the same if the husband be jointly interested with others in the pro- 
 
Larceny. 329 
 
 perty so taken. R. v. Willis, 1 Mood. C. C. 375. The prisoner 
 assigned his goods by deed to trustees for the benefit of his creditors. 
 No manual possession was taken by the trustees under the assign- 
 ment, but the prisoner himself remained in possession of the goods, 
 and whilst in such possession he removed the goods, intending 
 &audulently to deprive the creditors of them. The jury found the 
 prisoner guilty of larceny, at the same time finding that the goods 
 were not in the prisoner's custody as the agent of the trustees. 
 Under these circumstances it was held that the verdict of guilty was 
 wrong, as the prisoner being in lawful possession of the goods could 
 not be convicted of larceny. B. v. Pratt, Dears. 360. So, if a man 
 take his own goods, it is no, larceny, unless they be in the hands of 
 a bailee, and the taking of them have the effect of charging the 
 bailee. Where thirty bales of nux vomica, which paid no duty upon 
 exportation, but a large duty if intended for home consumption, de- 
 posited by A. with B., who gave the usual bond to the custom-house, 
 were sent by B., under the care of C, to be shipped on board a 
 foreign vessel for exportation, and A., by collusion with C, took the 
 nux vomica from the bales, substituted cinders for it, and shipped the 
 bales on board the vessel, this was holden, by a majority of the 
 judges, to be larceny, because the taking rendered B. chargeable to 
 the custom-house, and liable to a suit upon his bond. E. v. Wilhin- 
 son, R. &R. 470. So, if there be joint-tenants or tenants in common 
 of a personal chattel, and one of them carry away and dispose of it, 
 this was no larceny at common law; 1 Hale, 513; there is, in fact, 
 no taking, for he is already in possession; it was merely the subject 
 of an action of account, or bill in equity. But if he had taken it out 
 of the possession of a person in whose hands it was for safe custody, 
 and the effect of the taking would have been to charge the bailee, 
 that was held to be a larceny at common law; as where a member 
 of a benefit society entered the room of the person with whom a box 
 containing the funds of the society was deposited, and took and car- 
 ried it away, this was holden to be larceny, the bailee being answer- 
 able to the society for the funds. R. v. Bramley, R. & R. 478. So 
 also, where the prisoner, a member of an industrial society, fraudu- 
 lently took money from the shop of the society, which was under 
 the management of H., another member, who was responsible for all 
 moneys coming into his possession, the prisoner was held to have 
 been rightly convicted of larceny on an indictment laying the pro- 
 perty in the money in H. R. r. Webster, L. & C. 11; 31 L. J. {M. 
 C.) 17. So, where the prisoner, a member of a co-operative society 
 and one of the committee of management, fraudulently took money 
 from the society's shop, where B., a servant of the society, sold its 
 goods and received payments and was accountable for the money, 
 theprisoner was held to have been rightly convicted of larceny on 
 an indictment laying the property in the money in B. R. v. Burgess, 
 L. <& a 299; 32 L. J. (M. C.) 185. And now by 31 & 32 Vict. 
 c. 116, i-. 1 (ante, p. 308), if any person being a member of any co- 
 partnership, or being one of two or more beneficial owners of any 
 money, goods, or effects, bills, notes, securities or other property, 
 shall steal any such money, goods, or effects, bills, notes, securities, 
 or other property of or belonging to any such co-partnership or to 
 such joint beneficial owners, every such person shall be liable to be 
 dealt with, tried, convicted and punished for the same as if such 
 person had not been or was not a member of such co-partnership or 
 one of such beneficial owners. See R. v. Smith, L. R., 1 C. C. R. 
 266; 39 L. J. {M. C.) 11%, post, Ut. "Receiving Stolen Goods." 
 
330 LarcBKif, 
 
 If a man lose goods, and another find them, and, not knowing the 
 owner, convert them to his own use, this has been said to be no lar- 
 ceny, 3 Inst. 108; 1 Hawk. c. 33, s. 2, even although he deny the 
 finding of them or secrete them. 1 Hale, 506. But this doctrine 
 must be talsen with great limitation, and can only apply where the 
 finder bond fide supposes the goods to have been lost or abandoned 
 by the owner, and not to a case in which he colours a felonious 
 taking under that pretence. Id. : 2 East, P. C. 664: R. v. Kerr, 8 
 C. & P. 176 : R. V. Reed, C. & Mar. 306: R. v. Peters, XC.&K.'iAh: 
 R. V. Mole,, Id. 417. The true rule of law resulting from the autho- 
 rities on this subject has been recently pronounced to be, that "if a 
 man find goods that have been actually lost, or are reasonably sup- 
 posed by him to have been lost, and appropriates them, with intent 
 to take the entire dominion over them, really believing, when he 
 takes them, that the owner cannot be found, it is not larceny; but if 
 he takes them with the like intent, though lost, or reasonably sup- 
 posed to be lost, but reasonably believing that the owner can be 
 found, it is larceny." R. v. Tlmrborn, 1 Den. 388 ; 2 C. <& K. 831; 
 18 L.J. (M. C.) 140: see R. v. Dixon, Dears. 580 ; 25 L. J. {M. C.) 
 39 : R. V. ChHstopher, Bell, 27 ; 28 L. J. (M. C.) 35. In a still more 
 recent case, R. v. Moore, L. <£ C.l; 30 L. J. {M. C.) 77, on an 
 indictment for stealing a bank-note, the jury found, that the prose- 
 cutor had dropped the note in the defendant's shop; that the de- 
 fendant had found it there ; that at the time he picked it up he did 
 not know, nor had he reasonable means of knowing, who the owner 
 was ; that he afterwards acquired knowledge who the owner was, 
 and after that converted the note to his own use; that he intended, 
 when he found the note to take it to his own use, and deprive the 
 owner of it, whoever he was; and that he believed, when he found 
 it, that the owner could be found. It was held that, upon these 
 findings, the defendant was rightly convicted of larceny. It is to be 
 obsei'ved that in the last-mentioned case, although the prisoner at 
 the time he found the bank-note did not know, nor had reasonable 
 means of knowing, who the owner was, yet that he did believe at the 
 time of the fimding that the owner could be found. The recent case 
 of R. V. Glyde, L. R., 1 C. C. R. 139; 37 L. J. (M. C.) 107, shows 
 that the belief by the prisoner at the time of the finding of the chattel 
 that he could find the owner is a necessary ingredient in the offence, 
 and that it is not sufficient that he intended to appropriate the 
 chattel at the time of finding it, and that he acquired the knowledge 
 of who the owner was before he converted it to his own «se. In 
 that case the prisoner found a sovereign on the. highway, believing 
 it had been accidentally lost ; but, nevertheless, with a knowledge 
 that he was doing wrong, he at once determined to appropriate it, 
 notwithstanding it should become known to him who the owner was. 
 The owner was speedily made known to him, and the prisoner 
 refused to give up the sovereign. There was, however, no evidence 
 that he believed, at the time of finding the sovereign, that he could 
 ascertain who the owner was, and the prisoner was therefore held 
 not to be guilty of larceny. In R. v. Deaves, 11 Cox, 227, the facts 
 were that the prisoner's child, having found six sovereigns in the 
 street, brought them to the prisoner, who counted them and told 
 some bystanders that the child had found a sovereign. The prisoner 
 and the child then went down the street to the place where the child 
 had found the money, and found a half-sovereign and a bag. On 
 the same evening, about two hours after the finding, the prisoner 
 
Larceny, 331 
 
 was told that a woman had lost money, upon which tlie prisoner told 
 her informant to mind her own business and gave her half-a-sove- 
 reign. It was held by the majority of the Irish Court of Criminal 
 Appeal, that this case could not be distinguished from R. v. Glyde, 
 mpra, that there was nothing to show that at the time the child 
 brought her the money the prisoner knew the property had an 
 owner, or, at all events, to show that she was under the impression 
 that the owner could be found, and that therefore the conviction of 
 the prisoner for larceny must be quashed. It is clearly larceny, if 
 the defendant, at the time he appropriates the property, knows the 
 owner; and therefore, where a bureau was given to a carpenter 
 to repair, and he found money secreted in it, which he kept and 
 converted to his own use, it was holden to be a larceny ; Cartwright 
 V. Green, 8 Ves. 405; 2 Leach, 952. Bo, if a hackney coachman 
 convert to his own use a parcel left by a passenger in his coach 
 by mistake, it is felony, if he know the owner, or if he took him 
 or set him down at any particular place where he might have 
 inquired for him. JR. v. Wynne, 2 East, P. C. 664 ; 1 Leach, 413 : 
 B. V. Lamh, 2 East, P. C. 664 : M. v. Lear, 1 Leach, 415, n. So, 
 in every case where the property is not, properly speaking, lost, but 
 only mislaid, under circumstances which would enable the owner to 
 know where to look for and find it (as where a purchaser at a stall 
 of the defendant in a market left his purse on the stall), the person 
 who fraudulently appropriates property so mislaid is guilty of lar- 
 ceny. £. V. West, Dears. 402 ; 24 L.J. (M. C.) 4. Where a person 
 purchased at an auction a bureau, in which he afterwards discovered, 
 in a secret drawer, a purse of money, which he appropriated to his 
 own use, it was held that, if he had express notice that the bureau 
 only, and not its contents, if any, were sold to him, or if he had no 
 reason to believe that anything more than the bureau itself was sold, 
 the abstraction of the money was a felonious taking, and he was 
 guilty of larceny ; but that, if he had reasonable ground for believ- 
 ing that he bought the bureau with its contents, if any, he had a 
 colourable right to the property, and it was no larceny. Merry v. 
 Green, T M. & W. 623; 10 L. J. (M. C.) 154. And in every case in 
 which there is any mark upon the property by which the owner may 
 be traced, and the finder, instead of restoring the property, converts 
 it to his own use, such conversion will amount to larceny. R. v. 
 Jaraes, 2 Russ. 12 : R. v. Pope, 6 C. d P. 346 : R. v. Mok, 1 C. & K. 
 417 : R. V. Preston, 2 Den. 353 ; 21 L. J. (M. C.) 41. But unless 
 at the time of the finding the defendant had the means of knowledge 
 who the owner was, or reasonably believed that he could be found, 
 and had also at the time of the finding an intention of appropriating 
 the property to his own use, his subsequent appropriation of the pro- 
 perty, with such means of knowledge, will not of itself be such a 
 conversion as to amount to larceny. R. v. Thurhom, ante, p. 330: 
 R. V. Preston, supra: R. v. TorJc, 1 Den. 335; 18 L. J. (M. C.) 38; 
 2C.&K. 841: R. V. Dixon, Dears. 580 ; 25 L. J. (Jf. C.) 39 : R. v. 
 Christopher, Bell, 27; 28 L. J. (if. C.) 35. A boy having found a 
 lost cheque, the prisoner by some pretence got it from him, and 
 kept it in hopes of getting a reward, but not being satisfied with the 
 reward offered by the owner, he refused to deliver it either to the 
 owner or to the boy. Under this state of facts it was held that the 
 prisoner could not be convicted of stealing the cheque either from 
 the owner or the boy. B. v. Gardner, L. & C. 243 ; 32 L. J. (M. C.) 
 35. 
 We have just said that the taking may be actual or constructive : 
 
332 Larceny. 
 
 actual, where the goods have been actually taken out of the owner's 
 possession, against his will or without his consent, and which requires 
 no fm-ther comment or illustration: constructive, where the owner 
 delivers the goods, but either he does not thereby divest himself of 
 the legal possession, or the possession of the goods has been ob- 
 tained from him by fraud, and in pursuance of a previous intent to 
 steal them. As this subject of constructive taking has given rise to 
 some very nice distinctions, it may be necessary to consider it with 
 some minuteness : I shall therefore class the cases decided upon it 
 under the following heads : — 1. Where, by the delivery the owner 
 of the goods passes not only the possession, but the right of propeily 
 also. 2. Where the possession has been obtained animo furandi. 
 3. Where the possession was oi'iginally obtained bona fide, and 
 without a felonious intent. 4. Where the delivery does not alter 
 the possession in law. 
 
 First. As to the cases where, by a delivery of the goods, not only 
 the possession, but the right of property also, passes. — It is a settled 
 and well-established principle, that if the owner, (of his own free will, 
 R. V. Macgrath, L. K, 1 C. C. R. 206 ; 39 L. J. {M. C.) 7,) part with 
 the property in the goods taken, there can be no felony in the taking, 
 however fraudulent were the means by which the delivery of the goods 
 was procured ; 2 Russ. C. & M., by Greaves, 196 (ith ed.) ; 2 East, 
 P. C. 668 ; and it is clear that no subsequent conversion, by the 
 person in whom the right of property has thus vested, can be con- 
 strued into larceny, whatever the intent of the party may be. As, 
 for instance, where goods are sold upon credit and delivered, no 
 conversion of them by the vendee can amount to larceny. Where 
 the defendant bought a horse at a fair of the prosecutor, to whom he 
 was known, and having mounted the horse, said to the prosecuton 
 that he would return immediately and pay him, to which the prose? 
 cutor answered, " Very well :" the defendant rode the horse away, 
 and never returned ; this was holden to be no larceny, because the 
 property, as well as the possession, was parted with. R. v. Harvey, 
 1 Leach, 467 ; 2 East, P. C. 669. So, where the defendant sent to a 
 hatter, in the name of one of his customers, for a hat, and it was 
 accordingly delivered to the messenger upon the credit of the cus- 
 tomer ; the judges held that this was not larceny, the owner having 
 parted with his property in the hat. R. v. Adams, R. & R. 225. So, 
 where a woman obtained from the prosecutor, in the name of one of 
 his neighbours, half-a-guinea's worth of silver, and said that she 
 would return presently with the half-guinea, it was holden not to be 
 larceny for the same reason. R. v. Cohman, 2 East, P. C. 672. So, 
 where A. allowed B. to take a sovereign away to get change for it, 
 and he never retm-ned, this was held no larceny of the sovereign. R. 
 v. Thomas, 9 C. & P. 741. So, where the defendant sent a letter to 
 the prosecutor in the name of another person, requesting the loan of 
 31. for a few days, and obtained the money accordingly ; eleven of 
 the judges held this to be no felony, because it appeared that the 
 property in the money was intended to pass by the delivery. B. v. 
 AtJcinson, 2 East, P. C. 673. So, where the defendant obtained goods 
 of a tradesman by means of a forged order from a customer. B. v. 
 Adams, 1 Den. 38. And where the prosecutor was inveigled by a 
 set of sharpers to bet with them, and, by a preconcerted trick one of 
 them won from him the money in question, which he paid, imagining 
 it to have been won fairly : the judges held that it was no larceny, 
 the prosecutor having parted with his property in the money under 
 the idea that it had been fairly won, R. v. Nicholson, 2 Leach, 610. 
 
Larceny. 333 
 
 And where the goods are obtained not from the owner, but from his 
 servant, who has an authority co-equal with his master, and parts with 
 fiis master's goods, intending to part with the property in them, 
 such goods cannot be said to be stolen, inasmuch as the servant 
 intends to part with the property in them, and has authority to do so. 
 R. V. Pnnce, L. R., 1 C. C. E. 150; 38 L. J. (M. C.) 8. If, how- 
 ever, the servant's authority is limited, then he can only part with 
 the possession and not with the property ; if he is tricked out of 
 the possession, the offence so committed will be larceny. In B. v. 
 Longstreeih, 1 Mood. C. C. i3T,post,p. 338, the carrier's servant had 
 no authority to part with the goods, except to the consignee. His 
 authoHty was not to act generally in the master's business, but 
 limited in that way. The offence was in that case held to be larceny 
 on that ground, and this distinguishes it from B. v. Jachson, 1 3£ood. 
 C. C. 119, infra, which the same judges, or at any rate some of them, 
 had shortly before decided. 'There, the servant from whom the 
 goods were obtained, had a general authority to act for his master, 
 and the person who obtained the goods was held not to be guilty of 
 larceny. See the judgment of Blackhum, 3.,mB. v. Prince, L.R.,X 
 C. C. B. 155; 38 L. J. (M. C.) 11. And therefore where a person 
 obtained money from the cashier of a bank by presenting, knowing 
 to be forged, a forged order purporting to be drawn by a customer 
 of the bank, this was holden not to be larceny, because the cashier, 
 in paying the money, was acting within the scope of his general 
 authority. B. v. Prince, uK supra. So, where the defendant bought 
 goods and desired them to be sent to him with a bill and a receipt, 
 and the shopman who brought them left them, upon being paid for 
 them by two bills, which, however, afterwards turned out to be mere 
 fabrications ; the judges held that this was not larceny, because the- 
 prosecutor had parted with the property, as well as the possession, 
 upon receiving what was deemed at the time by his servant to be 
 payment. iJ. v. Parte, 2 Xeacft, 614; 2 Sasi, P. C. 671. Where the 
 servant of a pawnbroker, who had a general authority from his master 
 to act in his business, delivered up a pledge to the pawner upon 
 receiving a parcel, which he supposed to contain diamonds, and under 
 that belief parted with the pledge entirely, but the parcel contained 
 stones of no value, this was holden to be no larceny. B. v. Jachson, 
 1 Mood. 0. C. 119. And see B. v. Barnes, 2 Den. 59; 20 L.J. 
 (M. C.) 34 : B. V. Essex, Dears. & B. 371 ; 27 L. J. (M. C.) 20, ace. 
 Secondly. Where the possession of the goods has been obtained 
 anirno fwandi. — Where a man, having the animus furandi {see ante, 
 p. 325), obtains, in pursuance thereof, possession of the goods by 
 some trick or artifice (the owner not intending to part with his entire 
 right of property, but with the temporary possession only, Cr.L. Com., 
 ith Bep., p. 50), this is considered such a taking (even although there 
 be a delivery in fact) as to constitute larceny. Where the defendant 
 offered to give the prosecutor gold for bank notes, and npon the pro- 
 secutor's laying down some bank notes, for the purpose of having 
 them changed for gold, the defendant took them up, and went away 
 with them, promising to return immediately with the notes, but 
 never in fact retm-ned ; Wood, B., said that the property in the notes 
 had never been par-ted with at all, and left it to the jury to say, 
 whether the defendant had the animus furandi at the time he took 
 the notes, and said, that if they were of that opinion the case clearly 
 amounted to larceny. B. v. Oliver, 4 Taunt. 274, cit. 2 Leach, 1072 : ' 
 see R. V. Bodway, 9 C. & P. 784. Wliere the defendant agreed to 
 
334 Larceny. 
 
 discount a bill for the prosecutor, and the bill was given to him for 
 that purpose ; he told the prosecutor that if he then sent a person 
 ■with him to his lodgings, he would give him the amount, deductm'g 
 the discount and commission ; a person was sent accordingly, hut, 
 upon reaching the lodgings, the defendant left the messenger there, 
 and went out on pretence of getting the money, but never returned : 
 the judge left it to the jury to say whether the defendant obtained 
 possession of the bill with intent to steal it, and whether the prose- 
 cutor meant to part with his property in the bill, before he should 
 have [received the money for it : the jmy being of opinion in the 
 afBrmative on the first proposition, and in the negative on the second, 
 convicted the prisoner, and the judges afterwards held the conviction 
 to be right. R. v. AichUs, 2 East, P. C. 675 ; 1 Leach, 294 Where 
 the defendant obtained from a silversmith two cream-ewers, in order 
 that the customer of the silversmith, with whom the defendant said 
 he lived, might select which he liked best, and absconded with them, 
 but the silversmith did not charge for either of the ewers, and did 
 not at the time of the delivery intend to charge for either of them 
 until he had ascertained which would be chosen, this was holden by 
 Bayley, J., to be larceny, because the possession only, and not the 
 right of property, had been parted with ; R. v. Davenport, MS., 1 
 Arch. Peel's Acts, 5 ; but if the prisoner had in fact been sent by the 
 customer to the silversmith, the possession would have been in the 
 prisoner, and the subsequent conversion would not have been 
 larceny ; and upon this ground, in a case similarly circumstanced, 
 but in which there was no evidence that the prisoner had not actually 
 been sent for the goods, Patteson, J., directed an acquittal : for nm 
 constat that the prisoner had not been sent for the goods as she had 
 stated, and delivered them to the person who sent her. B. v. Savage, 
 5 C. (& P. 143. Where the defendant prevailed upon a ti-adesman 
 to take goods to a particular place, under pretence that the price 
 would then be paid for them, and afterwards induced liim to leave 
 the goods in the care of a third person, from whom the defendant 
 got the goods without paying the price, the tradesman swore that he 
 did not intend to part with the goods until they were paid for, 
 and the jury found that the defendant, ah initio, intended to get the 
 goods without paying for them ; this was holden to be larceny, B. 
 V. Campbell, 1 Mood. C. C. 179. So, where the defendant induced a 
 tradesman to send his goods by a servant to a particular place, with 
 change for a crown piece, and on the way met the servant, and 
 giving him a counterfeit crown piece, induced him to part with the 
 goods and change, which he had no authority to do without receiving 
 payment ; this was holden to be larceny. M. v. Small, 8 C.<& P. 46. 
 So, where the prisoners ordered goods of the prosecutor, and the 
 latter sent them to their house by his servant with strict injunctions 
 not to part with them without receiving the price, and the prisoners 
 gave the servant a cheque which they knew to be worthless, upon 
 which he left the goods with them ; this was holden to be larceny. 
 B. v. Stewart, 1 Cox, 174. If the owner had himself carried the 
 goods and parted with them as the servant did, no doubt it would 
 have been a case of false pretences ; or if the servant had had a 
 general authority to act, it would have been the same as if the 
 master acted. But in this instance he had a limited authority which 
 he chose to exceed. If the prisoners intended to get possession of 
 these goods by giving a piece of waste paper, which they had no 
 reasonable ground to believe would be of use to anybody, and the 
 
Larceny. 335 
 
 servant had received positive instructions not to leave the goods with- • 
 out cash payment, the charge of larceny is made out. PerAlderson,B., 
 in M. V. Stewart, supra. See also R. v. Longstreeth, 1 Mood. C. C. 137, 
 post, p. 338. So, where the defendant having bargained for goods, 
 for which, by the custom of trade, the price should have been paid 
 before they were taken away, took them away without the consent 
 of the owner, and at the time he bargained for them did not intend 
 to pay for them, but meant to get them into his own possession, and 
 dispose of them for his own benefit ; this was holden to be larceny. 
 jB. v. Gilbert, 1 Mood. C. G. 185. And where the defendant, intending 
 ah initio to get goods by fraud, had them put into liis cai-t upon the 
 express condition that they should be paid for before they were taken 
 out of the cart, and then took them out of the cart without paying 
 for them, and converted them, this was holden to be larceny. JR,. v. 
 PraU, 1 Mood. C. 0. 250: S. v. Cohen, 2 Den. 249. So, obtaining 
 money or goods by the practice of ring dropping (as it is termed) 
 has been holden to be larceny. Thus, where the defendant, in the 
 presence of the prosecutor, picked up a purse in the street, contain- 
 ing a receipt for 147^. for a " rich hrilliant diamond ring" and also 
 the ring itself; it was then proposed that the ring should be given 
 to the prosecutor, upon his depositing his watch and some money, 
 as a security that he would return the ring as soon as his proportion 
 of the value of it should be paid to him by the defendant ; the pro- 
 secutor accordingly deposited his watch and money, which were 
 taken away by some of the defendant's confederates ; but the ring 
 turned out to be of the value of 10s. only, and the watch and money 
 were never returned : it was left to the jury to say, whether this was 
 not an artful and preconcerted scheme to get possession of the pro- 
 secutor's watch and money; and the jury being of that opinion, 
 convicted the defendant. R. v. Patch, 1 Leach, 238. In R. v. Moore, 
 1 Leach, 314 ; 2 East, P. G. 679, the defendant being convicted of 
 larceny under the same circumstances, and the case being reserved 
 for the opinion of the judges, nine of them were of opinion that this 
 practice of ring-dropping amounted to larceny; and they distin- 
 guished it from the case of a loan; for here, although the possession 
 was parted with, the property in the goods was not. See also R. v. 
 Watson, 2 Leach, 640 ; 2 East, P. C. 680. On the same principle 
 it has been held, that a gipsy who obtains and keeps money or 
 goods by a false pretence of witchcraft, the person from whom she 
 obtains them merely intending to part with the possession and 
 expectmg them to be returned, is guilty of larceny. R. v. Bunce, 1 
 F. & F. 523. Where the defendant, in the presence of the prose- 
 cutor, picked up a purse containing a watch-chain and two seals, 
 which the defendant and his confederate represented to be gold, and 
 worth 18Z., and the prosecutor purchased the defendant's share for 
 7/., intending to part with the property in the money as well as the 
 possession of it ; Goleridge, J., held that this was not larceny. R. v. 
 Wilscm, S C. (& P. 111. Where the defendants decoyed the prose- 
 cutor into a public-house, and then introduced the play of cutting, 
 and one of them prevailed on the prosecutor, who did not play on 
 his own account, to cut the cards for him ; and then, under the pre- 
 tence that the prosecutor had cut the cards for himself, and lost, 
 another of them swept his money off the table, and went away with 
 it, it was considered to be a case in which it should be left to the 
 jury to determine quo amimo the money was obtained; and which 
 would be a felony should they find that the money was obtained 
 
336 Larceny. 
 
 upon a preconcerted plan to steal it. R. v. Homer, 1 Leach, 270 ; 
 Cold. 295. So, where the prosecutor was induced, by a preconcerted 
 plan, to deposit his money with one of the defendants, as a deposit 
 upon a pretended bet, and the stakeholder afterwards, upon pretence 
 that one of his confederates had won the wager, handed the money 
 over to him ; and it was left to the jury to say, whether, at the time 
 tine money was taken, there was not a plan that it should be kept, 
 under the false colour of winning the bet, and the jury found that 
 there was; this was held to be larceny; because, at the time the de- 
 fendants obtained the money from the prosecutor, he parted with 
 the possession only, and the property was to pass eventually only if 
 the other party really won the wager. B. v. Rohson, R. & R. 413. 
 Where two men, J. and W., acting in concert, and intending to de- 
 fraud the prosecutor, entered his shop, and by means of an artifice 
 induced him to draw a cheque on his banker for 42Z., payable in the 
 name of the prisoner J., and then to accompany J. to the hank to 
 see it paid, on the understanding that they were to return to finish 
 the transaction by the payment to the prosecutor of 42 sovereigns, 
 and that the prisoner W. was to remain at the shop till they went 
 to and returned from the bank ; at the bank, by the prosecutor's 
 desire, and in his presence, the banker handed four 101. notes and 
 two sovereigns to the prisoner J. ; the prosecutor and J. then left 
 the bank together, and while on their way back to the shop J. ab- 
 sconded with the notes and the two sovereigns, which he and W., 
 who had in the meantime gone off from the shop, appropriated to 
 their own use : this was held to be a larceny by both prisoners of 
 the notes and the two sovereigns, the prosecutor never having parted 
 with the property in and possession of them, and J. having no more 
 than the bare custody of them until the payment to the prosecutor 
 of the 42 sovereigns. R. v. Johnson, 2 Den. 310 ; 21 L. J. (M. C.) 
 32. Where the defendant by false representations induced the pro- 
 secutrix to buy from him a dress for 25s., promising that if she would 
 do so he would give her another dress worth 12s.; then took a guinea 
 from her hand, gave her a dress worth much less than a guinea, and 
 refused to give her the other dress he had promised : this, it being 
 found by the jury that it was part of the defendant's scheme to ob- 
 tain the money by means of a pretended sale, was held to be larceny. 
 R. V. Morgan, Dears. 395. Where the prisoner went into a shop 
 and asked for change for half-a-crown, and the shopman gave him 
 two shillings and sixpence, the prisoner held out the half-crown, and 
 the shopman just took hold of it by the edge, but never actually got 
 it into his custody, and the prisoner ran away with the change and 
 the half-crown ; upon an indictment for stealing the two shillings 
 and sixpence, Parke, J., held it to be larceny, but doubted whether 
 an indictment would lie for stealing the half-crown. R. v. Williams, 
 & C. (& P. 390. So also, where A. and B. went into a shop, and A. 
 put down sixpence in silver and sixpence in copper, and asked the 
 prosecutrix to give him one shilling in change, upon which she took 
 one shilling from the till, and put it on the counter beside the six- 
 pence in silver and the sixpence in copper. A. then said to the 
 prosecutrix that she might as well give him a florin and take it all. 
 She took a florin from the till and put that on the counter, expecting 
 she was to receive two shillings of the prisoner's money, and the 
 prisoner went away with the florin. The prosecutrix did not dis- 
 cover her mistake till she was putting the change into the till, 
 - but at the same moment B. distracted her attention by asking the 
 
Larceny. 337 
 
 price of some article. It was held that the prosecutrix never 
 intended to part with her property in the florin, till she had received 
 two shillings of the prisoner's money, and that the offence was lar- 
 ceny. R y. M^Kale, L. R., 1 C. C. R. 125; 37 L. J. (Jf. C.) 97. 
 Where a hosier, by the desire of the defendant, took a parcel of 
 silk stockings to his lodging, out of which the defendant chose six 
 pairs, which were laid on the back of a chair, the defendant then 
 sent the prosecutor back to his shop for some articles, and, while he 
 was absent, absconded with the stockings; the judges held, that 
 this amounted to larceny, the defendant having clearly obtained pos- 
 session of the goods animo furandi. R. v. Sharpless, 1 Leach, 93 ; 
 2 East, P. C. 675. So where, the prosecutor having told his sen^ant 
 in the defendant's hearing to go to S. and pay him some money, the 
 defendant offered to take it, falsely stating that he lived a few doors 
 from S., which statement induced the prosecutor to deliver the money 
 to the defendant to take to S., instead of which he appropriated it to 
 his own use ; and the jury, finding the defendant guilty, stated that 
 their verdict was founded on the belief that the defendant had ob- 
 tained the money by a trick, intending at the time to appropriate it 
 to his own use; the conviction was held right. R. v. Broivn, Dears. 
 616. Where the defendant hii-ed a horse from the prosecutor, on 
 pretence of taking ajoiu-ney, and it turned out that, instead of going 
 the journey, he sold the horse inSmithfield market on the same day; 
 it was left to the juiy to consider, whether he hired the horse for the 
 purpose of stealing it, or whether he hired it really for the purpose 
 of taking the journey, and afterwards changed his intention ; and 
 the jury, being of the former opinion, found him guilty; seven of the 
 judges were afterwards clearly of opinion that the offence was felony. 
 R. V. Pear, 1 Leach, 212 ; 2 East, P. C. 686. See R. v. Banks, R. & 
 R. 441. And the same where the defendant hired the horse in the 
 name of another person. R. v. Charlewood, 1 Leach, 409 ; 2 East, P. 
 C. 689. So, where the defendant hired a post-chaise, with intent to 
 convert it to his own use, and never returned it ; upon being indicted 
 for it, twelve months afterwards, as for a larceny, it was holden clearly 
 to amount to that offence, although the chaise was not hired for anv 
 definite time. R. v. Semple, 1 Leach, 420 ; 2 East, P. C. 691. But 
 there must, in order to constitute a larceny at common law, by a 
 party to whom the goods had been delivered on hire, have been not 
 only an original intention to convert them to his own use, but a 
 subsequent actual conversion ; and a mere agi-eement by the hirer to 
 accept a sum offered for the goods by a third pai-ty, who, however, 
 did not intend to purchase unless his suspicions as to the honesty and 
 right of the vendor to sell were removed, was held not to amount to 
 such a conversion. R. v. Brooks, 8 C. & P. 295. These questions, 
 however, will not now arise in cases of the kind just referred to, by 
 reason of the provision of the 24 & 25 Vict. c. 96, s. 3 {ante, p. 303), 
 by which the fraudulent appropriation of property by bailees is de- 
 clared to be larceny. {See post, p. 340.) Where the prisoner went 
 to an inn, on a fair-day, and desired the ostler to bring out his horse, 
 and, upon the latter saying he did not know which was his horse, 
 went into the stable, and, pointing to a mare, said it was his, and the 
 ostler brought out the mare, which the prisoner attempted to mount 
 but could not, the mare being frightened ; upon which he desired the 
 ostler to lead the mare out of the yard, which was done ; but, before 
 he could mount, the prisoner was detected and secured: Garrow, B., 
 
 W. Q 
 
338 Larcmy. 
 
 held this to be larceny. R. v. Pitman, 2 C. & P. 423. If a man, 
 animo furandi, sue out a replevin, and by that means obtain the pos- 
 session of another man's horse, and ride away with it ; or by a fraudu- 
 lent ejectment get possession of another's house, and carry away the 
 goods out of it, he is guilty of larceny. 1 Hale, bOl ; 1 Hawh. c. 83, 
 a. 12 ; 3 Inst. 108 : and see R. v. Farr, Kel. 43 ; 2 Leach, 1064, n. 
 Where the defendant obtained the mail bags from the post-oiEce, 
 pretending that he was the mail guard, and then ran away with 
 them ; the jury, being of opinion that he got possession of them with 
 intent to steal them, found him guilty ; and the judges held the con- 
 viction to be right. R. v. Pearce, 2 East, P. C. 603. In this case 
 the property did not pass, for the postmaster had no property in the 
 mail bags to part with. 2 East, P. C. 673. Where the defendant, 
 animo fwandi, obtained goods . from the servant of a carrier, by 
 falsely pretending to be the person to whom the goods were directed, 
 it was holden to be larceny ; because the servant had no authority 
 to part with the goods but to the right person. R. v. Longstreeth, 1 
 Mood. C. C. 137. And where a can-ier's servant left goods at tlie 
 prisoner's house by mistake, but without any inducement from the 
 prisoner, who, afteiTvards, knowing that they had been left by mis- 
 take, and did not belong to him, converted them to his own use, 
 this was held to be larceny. R. v. Little, 10 Cox, 569. So, where the 
 prosecutor, intending to sell liis horse, sent his servant with it to a 
 fair, but the servant had no authority to sell or deal with it iu any 
 way, and the defendant by fraud induced the servant to part with 
 the possession of the horse, under colour of an exchange for another, 
 intending all the while to steal it ; this was holden to be larceny. 
 R. V. Sheppard, 9 C. & P. 121. T. J., the owner of a watch, sent it 
 to be regulated to A., the person from whom he had bought it, and 
 who had no aiithority to deliver it to any body but the owner. The 
 defendant fraudulently induced A. to believe that T. J. desu-ed the 
 watch to be sent by post to the postmaster at B., in a letter ; and the 
 watch having been so sent, the defendant personated T. J., and 
 induced the postmaster to deliver it to him as T. J. It was held, 
 that, on the receipt of the watch by the postmaster, the special pro- 
 perty of A. ceased, and the general property of the owner, being un- 
 incumbered, drew to it the possession ; that the postmaster had only 
 the custody of the watch for the purpose of delivering it to the 
 owner, and so his possession being the possession of the owner, the 
 obtaining of it by the defendant was a larceny from T. J. B. v. 
 Kay, Dears. & B. 231 ; 26 L. J. (M. C.) 119. Prosecutor was owner 
 of a coal yard, at which coal and slack were sold ; the price of slack 
 being about half the price of coal. By the custom of the yard, with 
 which the prisoner was acquainted, the carts were weighed on 
 entering the yard empty, and after being loaded were again taken 
 to the machine and weighed, and the weight of the coal on the cart 
 being thus ascertained, the price was paid before the carts were per- 
 mitted to leave the yard. The prisoner went to the yard with his 
 cart, and asked for a load of coal, which was loaded on his cart by 
 the prosecutor's servant. After the cart wa^ loaded, the prisoner 
 placed slack over the coal so as to conceal it, and took the cart to 
 the weighing machine. Being asked by the man at the weighing 
 machine what he had in his cart, he replied " slack." The cart was 
 then weighed, and, the contents having been paid for after the rate 
 of slack, was driven away by the prisoner. It was held, that if the 
 
Larceny. 339 
 
 prisoner went to the yard with the proconccived plan of obtaining 
 the coal by the above artiiice, he might be convicted of stealing the 
 coal. R. V. Bramley, L. & C. 21. Where the defendant, by artifice, 
 obtained possession of a request-note at the India House, by means 
 of which he obtained a permit for a chest of tea belonging to the 
 prosecutor (to whom he was a perfect stranger), and the chest of tea 
 was thereupon delivered to him : the judges held this to be larceny, 
 notwithstanding the possession had been obtained by means of a 
 regular request-note and permit. B. v. SencJi, R. de R. 163. A 
 hosier in the Haymarket, having sent his apprentice with a parcelof 
 stockings to Cheapside, the defendant met him on Ludgate Hill, 
 and asked him where he was going ; the apprentice answered to Mr. 
 Heath's ; the defendant replied, that he was the person, desired tho 
 boy to give him the parcel, and gave him a small parcel in return, to 
 take home to his master : the boy accordingly gave him the parcel ; 
 but the parcel he took from him for his master contained nothing 
 but old rags of no value : the judges held this to be larceny. R. v. 
 Wilhins, 1 Leach, 520 ; 2 East, P. C. 673. It must be owned that 
 these last two cases so nearly resemble a few of the latter cases 
 collected under the first head, that the reader will probably feel some 
 difficulty in distinguishing them upon principle. They may be con- 
 sidered as very nearly approaching the boundary which separates 
 the one class of cases from the other. In such cases, it is safer and 
 more prudent to indict the defendant for obtaining goods, etc., by- 
 false pretences; the punishment is nearly tho same as for simple 
 larceny ; and if upon an indictment for obtaining goods, etc., by false 
 pretences, it be proved that the defendant obtained the goods, etc., 
 under circumstances which in law amount to larceny, he will not 
 upon that ground be entitled to an acquittal. 24 & 25 Vict. c. 90, 
 s. 88. Between the crime of false pretences and that of larceny 
 the most intelligible distinction seems to be this : — In larceny the 
 owner of the thing stolen has no intention to part with his property 
 therein to the person taking it, although he may intend to part with 
 the possession; in false pretences the owner does intend to part 
 with his property in the money or chattel, but it is obtained from 
 him by fraud. Per Talfourd, J., White v. Garden, 10 C. B. 927 ; 
 R. V. Barnes, 2 Den. 69 ; 20 L. J. (M. C.) 34 : Broom's Commentaries; 
 968, 969 (1st ed.). " If," says Parhe, B., " a person, through the 
 fraudulent representations of another, delivers to him a chattel, 
 intendmg to pass the propeiiy in it, the latter cannot be indicted 
 for larceny, but only for obtaining the chattel under false pre- 
 tences." Powell V. Eoyland, 6 Exch. 70 : R. v. Adams, R. & R. 225. 
 Where a man, having the animus fwrandi (see ante, p. 325), obtains, 
 in pursuance thereof, possession of goods by frightening the owner, 
 as by threatenmg him with temporary imprisonment unless he de- 
 livers up his goods,' and the owner does deliver them xmder the 
 influence of the fear inspired by this threat, this is considered such 
 a taking (although there is a delivery in fact) as to constitute larceny. 
 R. V. Macgrath, L. R., 1 C. C. R. 205 ; 39 L. J. (M. C.) 7. Tho 
 prisoner, acting as auctioneer at a mock auction, knocked down a 
 piece of cloth to the prosecutrix for 26s., she not having bid, as he 
 knew. The prosecutrix denied that she had bid ; the prisoner as- 
 serted that she had, and must pay before she could leave the auction 
 room. The prosecutrix tried to go out of the room, when a con- 
 federate of the prisoner prevented her doing so. She then in fear 
 
 q2 
 
340 Larceny. 
 
 paid the 26s., and took away the cloth which was given to her. These 
 facts were held to constitute a lai-ceny of the 26«. Id. The learned 
 judges who decided this case expressed a doubt whether upon these 
 facts the prisoner might not have been indicted for robbery, but they 
 all agreed that even if a robbery had in fact been committed, that 
 did not preserve the prisoner from the liability to be convicted of 
 larceny, as a robbery includes a larceny. See the judgment of 
 Blackburn, J., in B. v. Maegraih, supra. As to whether the facts in 
 that case would have sustained au indictment for robbei-y, see E. v. 
 Knewland, 2 Leach, 721 : R. v. Wood, 2 East, P. C. 732, post, from 
 which it would seem that they would not. 
 
 Thirdly. As to the case where the possession of the goods has 
 been obtained lawfully and hona fide, without any fraudulent inten- 
 tion in the first instance.^At the common law, where goods were 
 delivered to a man upon trust, or taken by liim with the owner's 
 consent, he was not guilty of larceny by converting them to his own 
 use. Therefore, in all cases where goods were borrowed or hired 
 from the owner, or were delivered by the owner to another to have 
 work done upon them, or cattle were delivered to be agisted, or the 
 like, and so in all other cases whei-e goods were in the possession of 
 a bailee, and he, while the contract of bailment subsisted, converted 
 the goods to his own use, this was not larceny, but only breach of 
 trust : because the original taking was bona fide and rightful: unless, 
 indeed, the jury found, on evidence warranting them in so iinding, 
 that the goods were originally obtained by the defendant from the 
 owner animo furandi, or that the defendant received them, harbour- 
 ing at the time an intention wrongfully to convert them to his own 
 use. {See ante, p. 333 et seq.) It is, however, no longer necessary 
 to refer to the numerous cases decided on this subject, many of 
 which turned upon very nice distinctions, because, under the present 
 statute, 24 & 25 Vict. c. 96, s. 3 (re-enacting 20 <& 21 Vict. c. 64, 
 s. 4), it is no longer a defence to an indictment for larceny, that the 
 defendant originally received the goods in the character of a bailee. 
 For that statute (besides dealing with the specific cases of fraudulent 
 appropriation by trustees, by bankers, merchants, brokers, attorneys, 
 and agents, and by persons entrusted with powers of attorney for the 
 sale or transfer of property) enacts, that " whosoever, being a bailee 
 of any chattel, money, or valuable security, shall fraudulently take 
 or convei't the same to his own use, or the use of any person other 
 than the owner thereof, although he shall not break bulk or otherwise 
 determine the bailment, shall be guilty of larceny, and may be con- 
 victed thereof upon an indictment for larceny ; but this section shall 
 not extend to any offence punishable on summary conviction." (Sec 
 R. V. Wells, 1 F. & F. 109.) Even before these statutes, although 
 the goods had in the first instance been obtained without afelmimts 
 intent, yet if the possession of them was obtained by a trespass, the 
 subsequent fraudulent appropriation of them, during the continuance 
 of the same transaction, was a larceny. As where a ifian, driving a 
 flock of sheep fi-om a field, drove with them a sheep belongiiig to 
 another person, without knowing that he had done so, but afterwards, 
 when he discovered the fact, sold that sheep and appropriated the 
 proceeds of the sale to his own use ; he was held to be rightly con- 
 victed of larceny. R. v. Riley, Dears. 149 ; 22 L. J. (M. C.) 48. A 
 man cannot, however, be convicted of larceny as a bailee, unless the 
 bailment was to re-deliver the very same chattel or money. B. v. 
 
Larceny. 341 
 
 Hoare, \ F. & F. 647 : R. v. Garrett, 2 F. & F. 14 : R. v. Hassell, 
 L. oB C. 58 ; 30 L. J. (M. C.) 175. The prosecutor asked the prisoner 
 to bring him half a ton of coals from a coal staith, and gave him 
 money to pay for them. The prisoner bought half a ton of coals 
 accordingly in his own name. He then put the coals into his own 
 cart, and on his way abstracted one cwt. of the coals, and afterwards 
 delivered the residue to the prosecutor as the coals which he had 
 required. The prisoner was not in the prosecutor's employment. 
 On these facts it was held that the prisoner was guilty of larceny as 
 a bailee, some of the judges thinking that the coals being purchased 
 with money given by the prosecutor for that express pui-pose, the 
 property in them vested in the prosecutor on the purchase ; others 
 holding that to make the prisoner a bailee there must be evidence 
 of a specific appropriation of the coals to the prosecutor; and all the 
 ■court agreed that there was evidence on the facts of such an appro- 
 priation. R. V. Bunlcall, L. & C. 371 ; 33 L. J. {M. C.) 75. A carter 
 was employed by the owner of a cargo of coals to load the coals in 
 the carter's ovm cai-t from the vessel, and deliver specified quantities 
 to persons whose names were on a list given to him. He sold two 
 loads of the coals fraudulently to persons whose names were not on 
 the list, and appropriated the monej^ to his own use. It was held 
 that he was guilty of larceny as bailee of the two loads. R. v. 
 Davies, 10 Cox, 289. Wliere the prisoner was indicted for larceny 
 as bailee of a coat, and the evidence was that the prosecutor had lent 
 the coat to the prisoner to wear for a day, and that some few days 
 afteiTvai-ds the prisoner left the town, and was found weai'ing the 
 ■coat on board a vessel bound for Australia, Martin, B., stopped the 
 case on the ground that there was no evidence of a conversion sufii- 
 •cient to satisfy the statute. The determination of the bailment, said 
 his lordship, must be something analogous to larceny, and some act 
 must be done inconsistent with the purposes of the bailment. R. v. 
 Jackson, 9 Cox, 505. The drawer of an accommodation bill for 30?. 
 received it from the acceptor, upon an arrangement to get it cashed 
 and pay over to the latter all the proceeds, except 31, which the 
 . drawer was to retain for his trouble. Instead of carrying out this 
 ■arrangement, the drawer handed the bill to one of his creditors who 
 was pressing him for payment of a debt of 10?., in order that the 
 creditor might discount the bill, and retain out of it his debt for 
 10?., and then hand over the balance to the drawer. The creditor, 
 however, did not cari-y out this arrangement, and detained the bill. 
 On these facts it was held that although the drawer was a bailee of 
 the bill within the meaning of the statute, yet that there was no 
 ■conversion of it by him analogous to larceny, and therefore that an 
 indictment against him for larceny as bailee of the bill could not 
 be sustained. R. v. Weeks, 10 Cox, 224. It seems that a married 
 woman may be a bailee within the meaning of 24 t£ 25 Vict. c. 96, 
 ,s. 3 ; iJ. V. Eobson, L. <fe C. 93 ; 31 L. J. (M. C.) 22 ; notwithstanding 
 a previous ruling to the contrary by Martin, B., in R. v. Denmour, 8 
 Cox, 440. 
 
 If the goods of a husband be taken with the consent or privity of 
 the wife, it is not larceny. R. v. Hariison, 1 Leach, 47; R. v. Avery, 
 Bell, 150; 28 L. J. (M. C.) 185. However, it is said, that if a woman 
 steal the goods of her husband, and give them to her avowterer, who, 
 knowing it, carries them away, the avowterer is guilty of felony; 
 Bait. c. 104; and where a stranger took the goods of the husband 
 
342 • Larceny. 
 
 jointly with the wife, this was holden to be larceny in him, he being 
 lier adulterer; R. v. Tolfree, 1 Mood. C. C. 243 (overruling R. v. 
 Clarle, 1 Mood. C. G. 376, n.) ; R. v. Featherstone, Dears. 369; 23 L. J. 
 (M. C.) 127: see R. v. Berry, Bell, 95; 28 L. J. (M. C.) 70; and so 
 it is even though no adultery have then been committed, but the 
 goods are taken with the intent that the wife shall elope and live in 
 adultery with the stranger. R. v. Tollett, C. & Mar. 112: R. v. 
 Thompson, 1 Den. 549. And if a servant, by direction of his master's 
 wife, carries off his master's property, and the servant and wife go 
 off together with the property, with the intention of committing 
 adultery, the servant may be indicted for stealing the property. R. 
 v. Mutters, L. C C. 511; 34 L. J. (_M. C.) 54. It seems, however, 
 that if a wife elopes with an adulterer, it is no larceny in the 
 adulterer to assist in carrying away her necessary wearing apparel. 
 R. V. Fitch, Dears. & B. 187; 26 L. J. {M. C.) 169; overruling on 
 this point the direction of Coleridge, J., in R. v. Tollett, C. & Mar. 
 112. The prisoner who had lodged at the prosecutor's house left it, 
 and the next day the prosecutor's wife also left, taking a bundle with 
 her, which however was not large enough to contain the things 
 which, the evening she left, it was found had been taken from the 
 house. Two days after all the things were foimd in the prisoner's 
 cabin, or on his person, in a ship in which the prosecutor's wife was, 
 the prisoner and the prosecutor's wife having taken their passage in 
 the ship as man and wife. It was held that from these facts the jury 
 were justified in drawing the inference that the prisoner had received 
 the property knowing it to have been stolen. R. v. Deer, L. & C. 
 240; 32 L. J. (M. C.) 33. But an adulterer cannot be convicted of 
 stealing the goods of the husband brought by the wife to his house, 
 in which the adultery is afterwards committed, merely upon evidence 
 of their being there, unless they be traced to his personal possession. 
 R. V. Rosenberg, 1 C. & K. 233. Where a wife took her husband's 
 goods from a place within the jurisdiction of the Central Criminal 
 Court, and was found committing adultery with the prisoner at Liver- 
 pool, the husband's goods being then in the prisoner's possession, but 
 there was no evidence that the goods had been under the prisoner's 
 control at any place within the jurisdiction of the Central Criminal 
 Court, it was held that the prisoner could not be indicted in that 
 court for larceny. R. v. Prince, 11 Cox, 145. 
 
 Fourthly. As to cases where, although there is a delivery of the 
 goods by the owner, yet the possession in law remains in him.— If a 
 servant, who has merely the care and oversight of the goods of his 
 master, as the butler of plate, the shepherd of sheep and the like, em- 
 bezzle them, this is a larceny at common law; 1 Hale, 506; because 
 the goods, at the time they are taken, are deemed in law to be in the 
 possession of the master, the possession of the servant in such a case 
 being the possession of the master. Where a person employed to 
 drive cattle, or to take them to a particular place for a special pur- 
 pose, and bring them back, sells them, it is larceny; for he has the 
 custody merely, and not the right to the possession; R. v. Stoelc, 1 
 2iood. C. C. 87: R. v. M'Namee, 1 Mood. C. C. 368; although the in- 
 tention to convert them was not conceived until after they were de- 
 livered to him. R. V. Harvey, 9 C. S P. 363; R. v. Jackson, 2 Mood. 
 C. C. 32: see R. v. Goode, C. & Mar. 582: R. v. C. Jones, Id. 611: R. 
 V. Frances Smith, 1 C. & K. 423. Where the defendant, who was 
 carter to the prosecutor, went away with and disposed of his master's 
 
Laraemj. , 343 
 
 cart, it was holden to be felony. B. v. BoUnson, 2 East, P. C. 565. 
 Where the defendant, a porter to the prosecutor, was sent by his 
 master to deliver goods to a customer, and, instead of doing so, sold 
 them, the judges held this to be felony. B. v. Bass, 2 East, P. C. 
 566. The defendant, foreman and shopkeeper to the prosecutor, not 
 residing in the house with him, but merely attending there in the 
 daytime, received from his master a bill of exchange, with directions 
 to send it enclosed in a letter to J. S. in London; the defendant ab- 
 sconded with the bill, and the judges held this to be felony. E. v. 
 Paradice, 2 East, P. C. 565. So, if money, or a valuable security 
 {as a cheque drawn by the prosecutor on a banker; B. v. Heath, 2 
 Mood. C. C. 33) be given by a master to his servant to carry to 
 another, or to purchase goods with, and the servant apply it to his 
 own use, it is larceny. B. v. Lavender, 2 Buss. 160: B. v. Beaman, 
 C. & Mar. 695. So, if a man, having purchased corn on board a 
 vessel, send his clerk or lighterman with a barge for the purpose of 
 landing it, and the clerk or lighterman embezzle a part of it, this is 
 larceny. B. v. Abrahat, 2 Leach, 824: B. v. Spears, 2 Leach, 825 ; 
 2 East, P. G. 568. So, where the servant of a master carman, em- 
 ployed to cart goods, by collusion with others, suffered the goods, with 
 the cart, to be taken away, it was holden to be larceny in the servant; 
 and to be immaterial whether the property were laid in the bailee or 
 the original owner. B. v. Harding, B. S B. 125. So, where a ser- 
 vant got ten guineas from her master, in order to get silver for them, 
 and, instead of doing so, ran away with the guineas, it was holden to 
 be larceny. B. v. Atkinson, 1 Leach, 302. Even where a confiden- 
 tial clerk to a merchant, who had authority to get his master's bUIs 
 discounted, and had the general management of his cash concerns, 
 took a bill of exchange, unindorsed, got it discounted, and absconded 
 with the produce of it, it was holden to be felony. B. v. iJhipchase, 
 2 Leach, 699: and see B. v. Murray, 1 Leach, 344. Where the de- 
 fendant, a clerk and cashier in a banking-house, made false entries 
 in the books to the credit of a customer, then obtained the customer's 
 cheque for the sum thus falsely placed to his credit, and paid the 
 amount of the cheque to himself by certain bank-notes, entering the 
 payment in the book as being made to " a man:"' this was holden by 
 the judges to be a larceny of the bank-notes. ' B. v. Hammon, B. 
 <& B. 221 ; 2 Leach, 1083; 4 Taunt. 304. So, if a sheriff's officer clan- 
 destinely sell, for his own use, part of the goods which he has seized, 
 ttnder afi.fa., he is guilty of larceny, because he has the custody of 
 the goods merely, like a servant, and has not the legal possession. 
 B. y. Eastall, 2 Buss. 153. But where A. employed B., who was by 
 business a drover, to drive pigs and deliver them to C. at L.; be was 
 to be paid by the day, but, by the usage of the trade, he had a right 
 to drive other persons' pigs to L. along with A.'s, if he chose; he 
 drove the pigs to L., and, as C.'s wife would not receive them, he 
 took them to L. mai-ket, sold them, and absconded; this was held 
 (before 20 <& 21 Vict. c. 54, s. 4; see ante, p. 340) no larceny, as under 
 the cfrcumstances B. was a bailee, and not a servant, and he had no 
 original intention of stealing the pigs. B. v. Hey, 1 Den. 602; 2 C. 
 ^- K. 983: see B. v. Gibbs, Dears. 445; 24 L. J. {M. C.) 62. An 
 unauthorized gift by the sei-vant of his master's goods is as much a 
 felony as if he sold or pawned them. B. v. White, 9 C. & P. 344. 
 And where a third party receives goods from a servant, under colour 
 of a pretended_ sale, knowing that the servant has no authority to sell 
 them, and is in fact defrauding his master, this is larceny in both. 
 
344 Larceny. 
 
 R. V. Hornby, 1 C. <£■ K. 305. But wliere goods, of whicli the mastei 
 has never been in possession, ai-e delivered to the servant for the 
 master's use, and the servant instead of delivering them to his master, 
 by depositing them in his house, or the like, converts them to his 
 own use, this is holden to be no larceny at common law. 2 East, P. 
 C. 668. Therefore, if a shopman receive money from a customer of 
 his master, and, instead of putting it into the till, secretes it; R. v. 
 Bull, 2 Leach, 841, cit.; or, if a banker's clerk receive money at tlie 
 counter, and, instead of putting it into the proper drawer, purloin it; 
 R. V. Baseley, 2 Leach, 835; or receive a bond for the purpose of 
 being deposited in the bank, and, instead of depositing it, convert it 
 to his own use; R. v. Waite, 1 Leach, 28; 2 East, P. C. 570; in these 
 cases it has been holden that the clerk or shopman is not guilty of 
 larceny. So, where a servant was sent by his master to get silver 
 for a 61. note, which he did, and absconded with the silver, it was 
 holden no larceny, because the silver had never been in the posses- 
 sion of his master, except by the hands of the servant. R.y.SuUms, 
 1 Mood. C. C. 129. And where the prosecutor, having employed the 
 defendant to purchase Exchequer bills for him, gave him a cheque 
 upon his bankers for the amount, and the defendant received the 
 amount of the cheque in bank-notes, and absconded, it was holden 
 not to amount to a larceny of the notes, because the prosecutor never 
 had possession of them except by the hands of the defendant. R. v. 
 Walsh, R. & R. 218. What is a suiScient delivery to the master for 
 this purpose must depend upon the nature of the goods. Thus, the 
 putting down, by the servant, of a load of hay, which the master 
 had sent him for, at the master's stable-door, was held a sufficient 
 delivery to the master to make the servant guilty of larceny in 
 then appropriating a part of it to his own use. R. v. Hayward, 1 C. 
 S K. 518. 
 
 If the owner of goods deliver them to another, but be present all 
 the time they are in the other's possession, and there be no intention 
 on the part of the owner to relinquish his dominion over them by 
 such delivery, the owner still retains the possession ip law, notwith- 
 standing this delivery; and if the person to whom he has so delivered 
 them make away with them and convert them to his own use, he will 
 be guilty of larceny. 2 East, P. C. 683, 684 ; 1 Hawh. c. 33, s. 2. 
 As, for instance, if the owner give the goods to a man to carry, and 
 accompany him at the same time — if the man run away with the 
 goods, he is clearly guilty of larceny. The law laid down in this 
 paragraph was cited with approval, and formed'the ground of decision 
 in R. V. Thompson, L. & C. 226; 32 L. J. (if. C.) 53. In that ease 
 a lady, wishing to get a railway ticket, finding a crowd at the pay 
 place, asked the prisoner, who was nearer to the pay place, to get a 
 ticket for her, and handed him a sovereign to pay for it. He took 
 the sovereign, intending to steal it, and immediately ran off with it. 
 On these facts he was held to have been guilty of larceny at common 
 law, as the lady being present retained the dominion and possession 
 in point of law, after she had handed the sovereign to him for the 
 intended purpose. 
 
 So, if a man have a bare use of the goods of another, this does not 
 divest the owner of the possession in law; and if the person who 
 thus has the use of them, fraudulently convert them, it is larceny. 
 As, for instance, if a guest rob his inn or tavern of a piece of plate, 
 it is larceny; for he hath not the possession delivered to him, but 
 merely the use. 1 Hale, 606 ; 1 Hawk. c. 33, s. 6. 
 
Larceny. 345 
 
 It may be necessary to add, that although the taking must, in 
 strictness, be invito domino, yet where a servant being solicited to 
 become an accomplice in robbing his master's house, informed his 
 master of it ; and the master thereupon told him to cany on the 
 affair, consented to his opening the door leading to the premises, and 
 to his being with the robbers dm-ing the robbery, and also marked his 
 property, and laid it in a place where the robbers were expected to 
 come; it was holden that this conduct of the master was no defence 
 to an indictment against the robbers. R. v. EggingUm, 2 Bos. & P. 
 608; 2 Leach, 913 : see R. v. Williams, I C. & K. 195. 
 
 Where a larceny is committed in one county, and the thief, at any 
 distance of time, R. v. Parhin, 1 Mood. G. V. 45, carries the goods 
 into another county, in contemplation of law he is guilty of not only 
 a carrying away, but also a taking, in every county through or into 
 which the goods have been carried by him. 1 Hale, 507; 1 Hawk, 
 c. 33, s. 52 ; 3 Inst. 113. So, if a lai'ceny be committed in one part 
 of the United Kingdom, and the goods bo carried into another part 
 of the United Kingdom, the offender may be indicted in that part of 
 the United Kingdom into which the goods ai-e carried. So, if a 
 larceny be committed within 500 yards of the boundaiy of two 
 counties, the defendant may be indicted in either county. And if 
 committed upon any person, or with respect to any property, in or 
 upon any coach, etc., or vessel during the progress of a journey or 
 voyage, the defendant may be indicted in any county in which, or by 
 the boundaiy of which, the coach, etc., or vessel may pass during the 
 progress of the journey or voyage. (Ante, pp. 33 — 35.) 
 
 Carry away.'] — There must not only be a taking, but also a carry- 
 ing away, in order to constitute larceny. A bare removal, however, 
 from the place in which the thief found the goods, though he does 
 not make off with them, is a sufficient asportation or carrying away. 
 4 Bl. Com. 231. As, for instance, if a man be leading another's 
 horse out of a close, and be apprehended in the fact ; or if a guest, 
 stealing goods out of an inn, have removed them from his chamber 
 downstairs; 3 Inst. 108, 109; or if a servant, animo furandi, take his 
 master's hay from his stable, and put it into his master's waggon ; 
 -ffi. ■v.Gmncell, 9 C. & P. 365 ; or, if a thief intending to steal plate, 
 take it out of a chest in which it was, and lay it down upon the floor, 
 but be sui-prised before he can make liis escape with it ; R. v. Simp- 
 son, Kel. 31 ; 1 Hawk. c. 33, s. 26 ; or if, intending to steal a cask of 
 wme, he remove it from the head to the tail of the waggon in which 
 it IS placed, and be detected before he can effect his pm-pose of carry- 
 i°g It off- -H- V. Walsh, 1 Mood. C. C. 14. And where the defendant 
 drew a book from the inside pocket of the prosecutor's coat, about 
 *° i"<=h above the top of the pocket; but, whilst the book was still 
 about the person of the prosecutor, the prosecutor suddenly put up 
 his hand, upon which the defendant let the book drop, and it fell into 
 the prosecutor's pocket : this was considered a sufficient asportation 
 to constitute larceny. R. v. Thompson, 1 Mood. C. C. 78. So, the 
 transfer of a letter by a letter carrier from his pouch to his pocket is 
 j!' efficient asportation. R. v. Poynton, L. <& C. 247; 32 L. J. 
 ■ 41, 1 ■^"*' ^''^'■8 the defendant merely set a package on end, 
 in the place where it lay, for the pui-pose of cutting open the side of 
 It to get out the contents, and was detected before he had accom- 
 plished his purpose; the judges held that this was not sufficient. 
 R. V. Cherry, 2 East, P. C. 666. So, where the thief was not able to 
 
 q5 
 
340 Larceny. 
 
 carry off the goods on account of their being attached by a string to 
 the counter ; Anon., 2 East, P. C. 656 ; or to carry off a purse on 
 account of some keys attached to the strings of it getting entangled 
 in the owner's pocket ; B. v. Willdnscm, 1 EaU, 508 ; the court in 
 these cases held, that there was not a sufficient carrying away to con- 
 stitute larceny: to render the asportation in such cases complete, 
 there must be a severance. 2 Buss. 6. Where, however, there is no 
 asportation, the prisoner may be indicted for an attempt to steal, 
 which is a misdemeanor at common law (see ante, p. 2) ; or upon an 
 indictment for the full offence of larceny, he maybe convicted of the 
 attempt only. 14 & 15 Vict. c. 100, s. 9. The prisoner, can, however, 
 only be convicted of an attempt to commit larceny where, if no 
 interruption had taken place, the attempt could have been carried 
 out successfully. B. v. Collins, L. & C. 471 ; 33 L. J. {M. C.) 177. 
 Therefore, if a person puts his hand into another's pocket with 
 intent to steal what he can find there and the pocket is empty he 
 cannot be convicted of an attempt to steal. lb. But although in 
 such a case there is no attempt to steal, yet as the putting a hand 
 into a pocket with intent to steal is clearly an act accompanied by a 
 criminal intent, though there be nothing in the pocket, it is a common 
 law misdemeanor, and a count should in cases of this kind be framed 
 to meet this view of the case. 3 Buss. C. & M., by Greaves, 644, 
 ■itJi ed. As to what is sufficient to constitute an attempt to steal, see 
 farther, B. v. Cheeseman, L. & C. 140 ; 31 L. J. {M. C.) 89, where 
 the circumstances were peculiar. In an indictment for an attempt to 
 steal, it is sufficient to aver that the prisoner attempted tp steal the 
 goods of A. B., without specifying the particular goods. R. v. 
 Johnson, L. & C. 489; 34 L. J. (3L C.) 24. 
 
 LAECENY BY CLERKS OK SERVANTS. 
 
 Statute. 
 
 24 <£• 25 Vict. c. 96, s. 67.] — Whosoever, being a clerk or servant, 
 or being employed for the purpose or in the capacity of a clerk or 
 servant, shall steal any chattel, money or valuable security belonging 
 to or in the possession or power of his master or employer, shall be 
 guilty of felony, and being convicted thereof shall be liable, at the 
 discretion of the court, to be kept in penal servitude for any term 
 not exceeding fourteen years, and not less than three years [now Jive 
 years, 27 <& 28 Vict. c. 47, s. 2, ante, p. 173] ; or to be imprisoned for 
 any term not exceeding two years, with or without hard labour, and 
 with or without solitary confinement, and, if a male under the age of 
 sixteen years, with or without whipping. 
 
 26 (6 27 Vict. c. 103, s. 1 — Servants taking tJieir master's com, etc., 
 without authority, for the purpose of giving the same to their master's 
 horses, etc., not guilty of felony, but liable to imprisonment, etcl — Ante, 
 p. 327. 
 
 Indictment. 
 Comviencement as ante, p. 313] — was clerk (" clerh or seniamt") to 
 J. N., [or was employed by J. N. for the purpose and in the capacity 
 of a clerk to him the said J. N.] , and that the said J. S., whilst he 
 
Larceny, 347 
 
 was such clerk to the said J. N. as aforesaid [or was so employed 
 by the said J. N. as aforesaid], to wit, on the day and year afore- 
 said, certain money to the amount of ten pounds, ten yards of linen 
 cloth, and one bill of exchange for the payment of ten pounds 
 (" any chattel, money, or valuable security," see ante, p. 302), of and 
 belonging to the said J. N., his master [or employer] [or, in the 
 possession and power Q' possession or power") of the said J.N. his 
 master [or employer] then being], feloniously did steal, take, and 
 carry away; against the form of the statute in such case made and 
 provided, and against the peace of our lady the Queen, her crown 
 and dignify. 
 
 You may add a count for larceny at common law, although this is 
 unnecessary. If it appear that the mono/, etc., was received by the 
 cleric, t&c.,for and on accovmi of his master, and was not received into 
 the possesion of the master otherwise than by the actual possession of 
 the clerk, etc., so as not to amount to larceny hut to embezzlement, the 
 defendant is nevertheless not entitled to be acquitted; hut the jury m/xy 
 return as their verdict that the defendant was not guilty of larceny, 
 but was guilty of embezzlement, and thereupon he shall be liable to be 
 punished in the same manner as if he had been convicted on an indict- 
 ment for embezzlement; but he cannot be afterwards prosecuted for 
 embezzlement on the same facts. 24 & 26 Vict. c. 96, s. 72 {post, tit. 
 Embezslement). 
 
 Felony: penal servitude for not more than fourteen nor less' than Jive 
 [27 (& 28 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment, with 
 or without hard labour, and with or without solitary confinement (mch 
 confinement not exceeding one month at any one time, nor three months 
 in any one year, 24 & 25 Vict. c. 96, s. 119, ante, p. 308), /or not more 
 than two years; and, if a male under sixteen years, with or without 
 whipping.— 24: <& 25 Vict. c. 96, s. 67. As to requiring the offender to 
 enter into recognizances and find sureties for heepinq the peace. Id., 
 s.m(ante,p.mi). 
 
 As to the punishment where the defendant is triable .summarily, and 
 pleads guilty, before justices at petty sessions, under the stat. 18 c6 19 
 Vict. c. 126, see a. 3 of that act, ante, p. 310. 
 
 Evidence. 
 
 Prove that the defendant, at the time he committed the offence, 
 was " clerk or servant" to J. N., or was employed by J. N. for that 
 piu^ose or in that capacity, as alleged in the indictment. (See post, 
 tit. Embezzlement.) The di-iver of a glass-coach hii-ed for the day is 
 not the servant of the hirer, so as to come within the statute. R. v. 
 Say don, 1 C. & P. 445. See Quarman v. Burnett, & M. & W. 499- 
 Mtlligan v. Wedge, 12 A. d; E. 737 ; i P. & D. 714 : R. v. Beu 1 
 Dm. 602; 2 C. & K. 983: B. v. Gibbs, Dears. 445; 24 L. J. (if. C.) 
 G2,ante, p. 343. Then prove the larceny as directed, ante, pp. 314 — 
 346 ; see particularly p. 342. Where, upon an indictment for lar- 
 ceny, it appeared that the defendant, being sent by his master to get 
 change for a 51. note, got silver for it and absconded, it was holden 
 that It was not larceny, because the silver had never been in the 
 possession of the master, except by the hands of the defendant. R. 
 v. Sullens, 1 Mood. C. C. 129 ; but see now 24 c6 25 Vict. c. 96, s. 72, 
 -SK^TO. But if the property be in the possession of the master, even 
 by the hands of another clerk or servant, or by delivery into the 
 master s house or bam, or into his cart or bai-ge, it is laixeny. R. 
 
348 Larceny. 
 
 y. Murray, 1 Mood. C. C. 276: R. v. Watts, 2 Dm. 14; 19 i. J. 
 (if. C.) i92: iJ. V. Spears, 2 icac^, 825; 2 jBasi, P. C. 568: ij. v. 
 Reed, Dears. 168, 257; 23 L. J. (M. C.) 25. It was the duty of the 
 prisoner, a servant of the prosecutors, to give out materials to be 
 wrought up, and pay the workmen when the work was finished, and 
 for this purpose he received cash from his masters, and at the end 
 of each week he accounted with them for sums so received and paid. 
 The cash was kept by him, but he was not authorized to apply it in 
 any other manner. He paid one of the workmen 13s., and fraudu- 
 lently charged his masters as having paid him 14s. %d., and appro- 
 priated the Is. 8d to his own use. On these facts it was held that 
 he was rightly convicted of larceny, as a servant, of the Is. M. R. 
 V. Low, 10 Cox, 168. It is not required by the statute that the 
 goods, etc., stolen should be the property, of the master ; the words 
 of the statute are, " belonging to or in the possession or power of 
 the master." If the defendant is not shewn to be the clerk or ser- 
 vant of J. N., but a larceny is proved, he may be convicted of the 
 larceny merely. 
 
 The taking from the possession of the master, by the servant con- 
 trary to the master's orders, of any corn, etc., for the pui'pose of 
 giving the same to any horse, etc., belonging to or in the possession 
 of his mastei-, is not now a felony, but an offence punishable on 
 summary conviction ; and if upon the trial of any servant for felo- 
 niously taking from his master any corn, etc., consumable by horses, 
 etc., the servant proves that he took the same under such circum- 
 .stances as would constitute an offence punishable on summary con- 
 viction, it shall be lawful for the jury to retm-n a verdict accord- 
 ingly, and thereupon the court shall award such punishment as may 
 be awarded on summar'y conviction. 26 & 27 Vict. c. 103, s. 1, ante, 
 p. 327. 
 
 LARCENY BY PEESONS EMPLOYED IN THE PUBLIC SEKVICE, OK BY 
 POLICE CONSTABLES. 
 
 Statute. 
 
 24 <fe 25 Vict. c. 96, s. 69.] — Whosoever being employed in the 
 public service of her Majesty, or being a constable or other person 
 employed in the police of any county, city, borough, district or 
 place whatsoever, shall steal any chattel, money or valuatjle security, 
 belonging to or in the possession or power of her Majesty, or in- 
 trusted to or received or taken into possession by him by virtue 
 of his employment, shall be guilty of felony, and being convicted 
 thereof shall be liable, at the discretion of the court, to be kept in 
 penal servitude for any term not exceeding fourteen years, and not 
 less than three years \nowfive years, 27 & 28 Vict. c. 47, s. 2, ante, 
 p. 173], or to be imprisoned for any term not exceeding two 
 years, with or without hard labour, and with or without solitary- 
 confinement. 
 
 Sect. 70 — Venue — Form of Indictment.'] — .... Every offender 
 against the last preceding section may be dealt with, indicted, tried 
 and punished either in the county or place in which he shall be appre- 
 
Larceny. 349 
 
 hended or be in custody, or in which he shall have committed the 
 offence ; and in every "case of larceny of any chattel, money or 
 valuable security in the last preceding section mentioned, it shall 
 be lawful in the warrant of commitment by the justice of the peace 
 before whom the offender shall be charged, and in the indictment to 
 be preferred against such offender, to lay the property of any such 
 chattel, money or valuable security in her Majesty. 
 
 Sect. 72 — Person indicted for Larceny not to le acquitted, if Em- 
 bezzlement be proved.'] — Post, tit. Embezzlement. 
 
 STEALING OK KILLING HORSES, COWS, SHEEP, ETC. 
 
 Statute. 
 24 & 25 Viet. c. 96, s. 10.]— Whosoever shall steal any horse, mare, 
 gelding, colt, or filly, or any bull, cow, ox, heifer, or calf, or any ram, 
 ewe, sheep, or lamb, shall be guilty of felony, and being convicted 
 thereof sliall be liable, at the discretion of the court, to be kept in 
 penal servitude for any term not exceeding fourteen years and not less 
 than three years \nowfive years, 27 & 28 Vict. c. 47, s. 2, ante,p.yi?i], 
 or to be imprisoned for any term not exceeding two years, with or 
 without hard labour, and with or without solitary confinement. 
 
 Sect. 11.] — Whosoever shall wilfully kill any animal, with intent 
 to steal the carcase, skin, or any part of the animal so killed, shall be 
 guilty of felony, and being convicted thereof .shall be liable to the 
 same punishment as if he had been convicted of feloniously stealing 
 the same, provided the offence of stealing the animal so killed would 
 have amounted to felony. 
 
 Indictment for stealing Horses, Corns, Sheep, etc. 
 
 Commencement as ante, p. 313] — one mare ("horse, mare, gelding, 
 colt, or filly, bull, cow, ox, heifer, or calf, ram, ewe, sheep, or lamb,") 
 of the goods and chattels of J. N., feloniously did steal, take and lead 
 away ; against the foi-m (as ante, p. 347). If the iridictment be for 
 stealing a bull, etc., or slieep, etc., say, " drive away," instead of " lead 
 away." The indictment must give the animal one of the descriptions 
 mentioned in the statute; otherwise the defendant can be punished as 
 for simple larceny merely. B. v. Beaney, B. & B. 416. 
 
 Felony : penal servitude for not more than fourteen nor less than 
 five [27 & 28 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment not 
 exceeding two years, being with or without hard labour, and with or 
 without solitary confinement (such confinement not exceeding one month 
 at any one time, nor three months in any on£ year, 24 & 25 Vict. c. 96, 
 s. 119, ante, p. 308).— 24 & 25 Vict. c. 96, s. 10. As to requiring the 
 offender to enter into recognizances and find sureties for keeping the 
 peace, Id. s. 117 (ante, p. 307). 
 
 Evidence. 
 
 Prove a larceny of the mare, etc., as directed ante, p. 314. See 
 
 B. V. Phillips, ante, p. 326: B. v. Crump, ante, p. 326: B. v. Cabbage, 
 
 ante, p. 327: B. v. Harvey, ante, p. 332: B. v. Pear, B. v. Charlewood, 
 
 B. V. Banlcs, ante, p. 337 : B. v. Stock, B. v. F. Smith, ante, p. 342. 
 
350 Larceny. 
 
 Where the defendant removed sheep from the fold into the open field, 
 killed them, and took away the skins merely ; the judges held, that re- 
 moving the sheep from the fold was a sufficient driving away to consti- 
 tute larceny. R. v. Rawlins, 2 East, P. C. 617. But where, upon an in- 
 dictment for sheep-stealing, the evidence was, that the earcases of the 
 sheep were found lying in the gripe of a ditch, killed, and the tallow 
 and fat taken away, the judges held that the removal of the sheep to 
 the ditch for the purpose of killing them was not such a removal as 
 would constitute a larceny of them within the meaning of the statute. 
 R. V. Williams, 1 Mood. C. C. 107. (See the next precedent.) Upon 
 the trial of an indictment for horse-stealing, the prosecutor stated 
 that he had agisted the horse on the land of another at some distance, 
 and that, hearing from that person of the loss of the horse, he went 
 to the field where the horse had been to feed ; and discovered that 
 he was gone: bat neither the agister nor his servant was called 
 as a witness : Chirney, B., held that this was not sufficient evidence 
 against the prisoner, for it was not shown that he might not have 
 obtained possession of the horse honestly. R. V; Ymd, 6 C. & P. 
 176. 
 
 The evidence must cowespond with the description of the animal 
 in the indictment. If the animal stolen be specifically mentioned in 
 the statute, it must be described and proved to be of that particulai- 
 description, for the enumeration of the several kinds in the statute 
 contradistinguishes the one from the other. Thus, an indictment for 
 stealing a cow has been holden not to be supported by evidence of 
 .stealing a heifer, because the repealed statute 15 G. 2, c. 34, upon 
 which that indictment was framed, mentioned both cows and heifers. 
 R. V. Coolc, 2 Leach, 405 ; 2 East, P. C. 616. And where a defendant 
 was indicted for stealing sheep, and they appeared by the evidence 
 to be lambs, the judges held that the evidence did not support the 
 indictment. R. v. Loom, 1 Mood. C. C. 160. See R. v. Birhet, 4 
 C. & P. 216. For the same reason an indictment for stealing a 
 sheep was held not to be supported by proof of stealing an ewe. R. 
 V. Puddifoot, 1 Mood. C. C. 247. But see now R. v. MCulley, 2 Uood. 
 C. C. 34, and R. v. Spicer, 1 Den. 82; 1 C. S K. 699, contra, for slieep 
 is a generic name : ante, p. 61. An indictment for stealing a colt or 
 filly would be supported by evidence of the larceny of a foal, because 
 colt or filly means a young horse or mare ; and a foal is not specifi- 
 cally mentioned in the statute. So it has been holden, that evidence 
 of stealing a filly would support an indictment upon the repealed 
 stat. 2 <§ 3 Ed. 6, for stealing a mare, because that statute mentioned 
 merely horses, geldings, mares. R. v. Welland, R. & R. 494. A 
 rig sheep or wether may properly be described as a sheep. B. v. 
 Stroud, 6C.&P. 535. 
 
 It should be observed that this statute applies only to the stealing 
 of live cattle, and that, if dead animals be stolen, it is but a common 
 larceny, and the punishment is diffijrent. As to the description of 
 dead animals, see ante, p. 315. 
 
 Indictment for killing Animals with intent, etc. 
 
 Commencement as ante, p. 313] — one sheep (" any animal" "pro- 
 vided the offence of stealing the anirrMl so hilled would have amounted 
 to felony "),o£ the goods and chattels of J. N., feloniously and wilftiUy 
 did kill, with intent feloniously to steal, take and carry away part 
 of the carcase (" the carcase, shin, or am/ part of the animalso Jailed"), 
 
Larceny. 351 
 
 that is to say, [the inwai-d fat] of the said sheep; against the form 
 (as ante, ^. 347). 
 Felony: 24 & 25 Vict. c. 96, s. 11. See the last precedent. 
 
 Evidence. 
 
 To support this indictment, you must prove two tilings: — 
 
 1. That the defendant killed the sheep ; and this is proved either 
 positively, as by a witness who saw him do it ; or by circumstantial 
 evidence, as, for instance, that the skins were found in his possession, 
 or were sold by him to another person, or the like. (See ante, 
 2}. 236.) Where the defendant was indicted for killing a lamb with 
 intent to steal part of the carcase, and the evidence was, that he 
 cut off the leg of the lamb whilst it was aHve, and carried the leg 
 away before the animal died ; the lamb afterwards died of the wound ; 
 the judge at the trial thought that as the death-wound was given 
 before the theft, it was sufficient, and the defendant was convicted ; 
 the judges afterwards were unanimous that the conviction was right. 
 S. V. Clay, R. & R. 387: see also R. v. Sutton, 2 Mood. C. C. 29; 8 
 a <S> P. 291. 
 
 2. That he killed the sheep with the intent stated in the indict- 
 ment. The best proof of this is, that the part of the carcase 
 mentioned was actually stolen. But if the defendant was caught in 
 the fact, that is, after killing the sheep, but before he had actually 
 cut it up, then it is for the jury to say, upon a consideration of the 
 facts of the case, whether he did not intend to steal the carcase. 
 Upon an indictment for.killing three sheep, with intent to steal the 
 whole of the carcases,, the jury found that the defendant intended to 
 steal a part of the carcases only; but the judges were of opinion that 
 the evidence was sufficient to sustain the indictment, as the statute 
 meant to make it immaterial whether the intent was to steal the 
 whole or a part only of the carcase. R. v. Williams, 1 Mood. C. C. 
 107. 
 
 In this, as in the last case, the evidence must correspond with the 
 description of the animal in the indictment. (See ante, p. 350.) 
 
 STEALING DOGS. 
 
 Statute. 
 
 24 S 25 Vict. c. 96, s. 18.]— Whosoever shall steal any dog shall, 
 on conviction thereof before two justices of the peace, either be 
 committed to the common gaol or house of correction, there to be 
 imprisoned, or to be imprisoned and kept to hard labour, for any tei-m 
 not exceedmg six months, or shall forfeit and pay, over and above 
 the value of the said dog, such sum of money, not exceeding 20Z., as 
 to the said justices shall seem meet ; and whosoever, having been 
 convicted of any such offence, either against this or any former act 
 of parliament, shall afterwards steal any dog, shall be guilty of a 
 misdemeanor, and being convicted thereof shall be liable, at the 
 discretion of the court, to be imprisoned for any term not exceeding 
 eighteen months, with or without hard labour. 
 
352 Larceny. 
 
 Sect. 19 — Knowingly being in possession of stolen Dogs, etc."] — Who- 
 soever shall unlawfully have in his possession or on his premises any 
 stolen dog, or the skin of any stolen dog, knowing such dog to have 
 been stolen or such skin to be the skin of a stolen dog, shall, on 
 conviction thereof before two justices of the peace, be liable to pay 
 such sum of money, not exceeding 201., as to such justices shall seem 
 meet ; and whosoever, having been convicted of any such offence, 
 cither against this or any former act of parliament, shall afterwards 
 be guilty of any such offence as in this section before mentioned, 
 shall be guilty of a misdemeanor, and being convicted thereof shall 
 be liable, at the discretion of the court, to be imprisoned for any term 
 not exceeding eighteen months, with or without hard labour. 
 
 Sect. 20 — Talcing Money to restore Dogs.'] — Whosoever shall cor- 
 ruptly take any money or reward, directly or indirectly, under pre- 
 tence or upon account of aiding any person to recover any dog which 
 shall have been stolen, or which shall be in the possession of any 
 person not being the owner thereof, shall be guilty of a misdemeanor, 
 and being convicted thereof shall be liable, at the discretion of the 
 court, to be imprisoned for any term not exceeding eighteen months, 
 with or without hard labour. 
 
 Sect. 22 — Persons found in possession of stolen Dogs liable to 
 
 Penalties.'] — If any .... dog, or ... . the skin thereof, shall 
 
 be found in the possession or on the premises of any person, any 
 justice may restore the same respectively to the owner thereof; and 
 
 any person in whose possession or on whose premises such 
 
 beast or the skin thereof . . . shall be so found (such person knowing 
 
 that the .... beast or animal has been stolen, or that the 
 
 skin is the skin of a stolen beast, ....), shall, on conviction before 
 a justice of the peace, be liable for the first offencfe to such forfeiture, 
 and for every subsequent offence to such punishment, as any person 
 convicted of stealing any beast or bird is made liable to by the last 
 preceding section. (See s. 21.) 
 
 Indictment for stealing a Dog, after a previous Conviction. 
 
 Middlesex, to wit: — The jurors for our lady the Queen upon their 
 
 oath present, that J. S., on the day of , a.d. 1866, one dog, 
 
 the property of J. N., unlawfully did steal, take, and carry away; 
 against the form of the statute in such case made and provided. 
 And the jurors aforesaid, upon their oath aforesaid, do say, that 
 heretofore and before the committing of the offence hereinbefore 
 
 mentioned, the said J. S., on the day of , a.d. 1866, at , in 
 
 the county of , was duly convicted before J. P., esq., and the Rev. 
 
 O. R., clerk, two of her Majesty's justices of the peace for the said 
 county, for that he the said J. S. on [etc., as in the first conviction, to 
 the words] against the form of the statute in such case made and 
 provided ; and the said J. S. was thereupon then and there adjudged 
 for his said offence to be committed to and imprisoned in the house 
 of correction in and for the said county, for the term of three months. 
 [As to the. necessity for charging the subsequent offence first, see-2i<t 
 25 'Vict. c. 96, s. 116, ante, p. 307, which enacts, that in any indictment 
 for any offence punishable under this act, and committed after a pre- 
 vious conviction or convictions for any offence punishable upon summary 
 conviction, it shall be sufficient, after charging the subsequent 
 
Larceny. 353 
 
 OFFENCE, to State that the offender was at a certain time and place con- 
 victed of an offence punishahle upon summary conviction, without 
 
 OTHERWISE DESCRIBING THE PEEVIOCS OFFENCE. It WOuld seem, 
 
 from the last six words, that it is unnecessary to set out the previous 
 conviction at length, as is done in the above indictment, but it is 
 safer to do so, as s. 18 is directed not against a dog stealer, who has 
 been previously convicted of any larceny punishable on summary 
 conviction, but against one who has been previously summarily con- 
 victed of dog stealing, and it might therefore be argued that the fact 
 of the previous conviction having been for dog stealing ought to 
 appear on the face of the indictment, notwithstanding the general 
 words used in s. 116.] 
 
 Misdemeanor: imprisonment, with or without hard labour, not ex- 
 ceeding eighteen calendar months. 24 & 25 Vict. c. 96, s. 18. See also 
 s. 117, ante, p. 307, as to fine and sureties. 
 
 Evidence. 
 
 Prove the subsequent offence, as directed ante,p. 314, et seq. ; and, 
 if the defendant is found guilty, or pleads guilty, prove the former 
 conviction in manner directed by 24 & 25 Vict. c. 96, s. 116 (ante, 
 p. 307); and the identity of the defendant. The mode of proceeding 
 at the trial as to arraignment, etc., is regulated by 24 & 25 Vict. 
 f. 96, s. 116, ubi supra. 
 
 There cannot be a conviction for obtaining a dog by false pretences, 
 under 24 & 25 Vict. c. 96, s. 88: see B. v. Robinson, Bell,. 34; 28 
 L. J. (M. C.) 58. 
 
 STEALING, REMOVING, OBLITERATING, ETC. RECORDS, ETC. 
 
 Statute. 
 24 & 25 Vict. c. 96, s. 30.]— Whosoever shall steal, or shall for any 
 fraudulent purpose take fi-om its place of deposit for the time being, 
 or from any person having the lawful custody thereof, or shall unlaw- 
 fully and maliciously cancel, obliterate, injure, or destroy the whole 
 or any part of any record, writ, return, panel, process, interrogatoiy, 
 deposition, affidavit, rule, order, or warrant of attorney, or of any 
 original document whatsoever of or belonging to any court of record, 
 or relating to any matter, civil or criminal, begun, depending, or 
 terminated in any such court, or of any bill, petition, answer, inter- 
 rogatory, deposition, affidavit, order or decree, or of any original 
 document whatsoever of or belonging to any court of equity, or re- 
 lating, to any cause or matter begun, depending, or terminated in any 
 such court, or of any original document in anywise relating to the 
 business of any office or employment under her Majesty, and being 
 or remaining in any office appertaining to any court of justice, or in 
 any of her Majesty's castles, palaces, or houses, or in any government 
 or public office, shall be guilty of felony, and being convicted thereof 
 shall be liable, at the discretion of the court, to be kept in penal ser- 
 vitude for the term of three years [now five years, 27 & 28 Vict. c. 
 47, «. 2, ante, p. 173], or to be imprisoned for any term not exceeding 
 two years, with or without hard labour, and with or without solitary 
 confinement; and it shall not in any indictment for such offence be 
 
354 Larceny. 
 
 iieoessaiy to allege that the article, in respect of which the offence is 
 committed, is the property of any person. 
 
 Indictment for stealing a Record, etc. 
 
 Commencement as ante, p. 313] — a certain judgment-roll of the 
 court of our lady the Queen before the Queen herself, feloniously did 
 steal, take and carry away; against the form [as ante, p. 347]. It 
 is not necessary to allege that the record, etc. is the property of arm 
 person. 24 & 25 Vict. c. 96, s. 30. 
 
 Felony : penal servitude for five [27 & 28 Vict. c. 47, s. 2, cmk, 
 p. 173] years, or imprisonment for not more than two years, with or 
 without hard labour, and with or without solitary confinement (sac/i 
 confinement not exceeding one month at any one time, nor three months 
 in any one year, 24 cB 25 Vict. c. 96, s. 119, ante, p. 308).— 24 & 25 
 Vict. c. 96, s. 30. As to requiring the offender to enter into recog- 
 nizances, and find sureties for heeping the peace. Id. s. 117, (ante, p. 
 307). 
 
 This offence is not triable at quarter sessions. 5 <£ 6 Vict. c. 38, s. 1 
 {ante, p. 104). 
 
 Evidence. 
 
 Prove a larceny of the record, etc. described in the indictment, as 
 directed, ante, p. 314, et seq. It is an indictable offence at common 
 law to steal the parchment upon which a record, not concerning the 
 realty, is written. R. v. Walher, 1 Mood. C. C. 155. 
 
 Indictment for talcing a Record, etc., from its Place of Deposit. 
 
 Commencement as ante, p. 313] — a certain judgment-roll of the 
 court of our said lady the Queen before the Queen herself from its 
 place of deposit for the time being, to wit, from the treasury of the 
 said court, \or, from one J. N. then having the lawful custody of the 
 same,] feloniously and for a fraudulent purpose did take; against the 
 form {as ante, p. 347]. If possible, add a second count, specifying the 
 fraudulent purpose. (See post, p. 356.) 
 
 Felony : see the last precedent. — 24 d; 25 Vict. c. 96, s. 30, 
 This offence is not triable at quarter sessions. 5 & 6 Vict. c. 38, s. 1 
 (ante, p. 104). 
 
 Evidejice. 
 
 Prove that the record, etc., described in the indictment was depo- 
 sited in the treasury of the court of Queen's Bench, or other place 
 mentioned in the indictment, and that such was its proper place of 
 deposit for the time being ; or, that the person from whose custody 
 the record, etc., is charged in the indictment to have been taken, was 
 by law entitled to have, and in fact had, possession of it at the time. 
 That the defendant took the record, etc. from the place or person 
 mentioned in the indictment, which may be proved either by positive 
 or by circumstantial evidence. (See ante, p. 235.) And that he took 
 it for a fraudulent purpose, which, in most cases, can only be matter 
 •of inference from circumstances, and is not capable of direct proof. 
 
Larceny. 365 
 
 Tlie mere taking is evidence from which fraud may faiidy be pre- 
 sumed, unless it be satisfactorily explained by the defendant. 
 
 Indictment f 01- cancelling, oUiterating, injuring, or destroying a Secord, 
 
 etc. 
 
 Commencement as ante, p. 313]— a certain judgment-roll of the 
 com-t of our said lady the Queen, before the Queen herself (see 
 Kupra), feloniously, unlawfully and maliciously did obliterate (" cancel, 
 obliterate, injure or destroy"), against the form \as ante, p. 347]. 
 
 Felony : see the last precedent but one. — 24 c6 2.5 Vict. c. 96, s. 30. 
 
 This offence is not triable at quarter sessions. 6 <£• 6 Vict. c. 38, s. 1 
 (ante, p. 104). 
 
 Evidence. 
 Prove the obliteration, injury, or destruction of the record, etc., by 
 the defendant, as stated in the indictment. Prove that it was done 
 maliciously, which may be inferred, if it be proved to have been done 
 wilfully. 
 
 DESTEOYING, ETC. RATE BOOK. 
 
 By the 25 d; 26 Vict. c. 103, s. 40, every person who wilfully injm-es, 
 defaces, conceals, or destroys a rate book, which may be lawfully 
 required to be produced before a Union Assessment Committee, shall 
 be deemed guilty of a misdemeanor. 
 
 STEALING, DESTEOYIXG, COXCEAIISG WILLS, ETC. 
 
 Statute. 
 24 S 25 Vict. c. 96, s. 29.] — Whosoever shall, either during the life 
 of the testator, or after his death, steal, or for any fraudulent purpose 
 destroy, cancel, obliterate, or conceal, the whole or any part of any 
 will, codicil, or other testamentary instrument, whether the same 
 shall relate to real or personal estate, or to both, shall be guilty of 
 felony, and being convicted thereof shall be liable, at the discretion 
 of the court, to be kept in penal servitude for life or for any term 
 not less than three years [now five years, 27 <£ 28 Vict. c. 47, s. 2, 
 ante, p. 173], or to be imprisoned for any term not exceeding two 
 years, with or without hai'd labour, and with or without solitary 
 confinement; and it shall not in any indictment for such offence 
 be necessary to allege, that such will, codicil, or other instrument, 
 is the property of any person : provided, that nothing in this or the 
 last pi-eceding section mentioned, nor any proceeding, conviction, or 
 judgment to be had or taken thereupon, shall prevent, lessen, or im- 
 peach any remedy at law or in equity, which any party aggrieved by 
 any such offence might or would have had if this act had not been 
 passed ; but no conviction of any such offender shall be received in 
 evidence in any action at law or suit in equity against him ; and no 
 person shall be liable to be convicted of any of the felonies in this 
 
356 Larceny. 
 
 and the last preceding section mentioned, by any evidence whatever, 
 in respect of any act done by him, if he shall at any time previously 
 to his being charged with such offence, have first disclosed such act 
 on oath, in consequence of any compulsory process of any court of 
 law or equity in any action, suit, or proceeding which shall have been 
 ionafde instituted by any party aggrieved: or if he shall have first 
 disclosed the same in any compulsory examination or deposition 
 before any court upon the hearing of any matter in bankruptcy or 
 insolvency. 
 
 Indictment. 
 
 Commencement as ante, p. 313] — a certain will and testamentary 
 instrument of one J. N., feloniously did steal, take, and carry away, 
 [or, feloniously, and for a fraudulent purpose, did cancel, destroy, and 
 obliterate, or- did conceal] ; against the form [as ante, ^. 347]. Wlm-e 
 the indictment is for destroying or concealing a vyill, etc., add another 
 count specifying the fraudulent purpose, if it can he done with certainty. 
 In R. V. Morris, 9 C. <S;J'. 89, Alderson, B., intimated an opinion that 
 such statement was necessary to the validity of the indictment. It is 
 not necessary to allege that the will, etc., is the property of any person. 
 24 <& 25 Vict. c. 96, s. 29. 
 
 Felony : penal servitude for life or for not less than fime [27 & 28 
 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment for not more tlmn 
 two years, with or icithout hard labour, and with or without solitary 
 confinement (such confinement not exceeding one month at any one time, 
 nor three months in any one year, 24 <& 25 Vict. c. 96, s. 119, ante, 
 p. 308). — 24 & 25 Vict. c. 96, s. 29. As to requiring the offender to 
 enter into recognisances, and find sureties for keeping the peace. Id. 
 s. 117 (ante, p. 307). 
 
 This offence is not triable at quarter sessions. 5 c6 6 Vict. c. 38, s. 1 
 e,p. 104). 
 
 ISvidence. 
 
 Prove a larceny of the will, etc., as directed ante, p. 314, et seq.; 
 or, if the indictment be for destroying or concealing a will, etc., 
 prove the destruction or concealment by the defendant, as stated in 
 the indictment, and also the fraudulent purpose for which he did it. 
 Tlie fraudulent pui-pose can, in most cases, be only matter of infer- 
 ence not capable of direct proof (see R. v. Morris, 9 C. <6i'. 89); 
 but the mere destniction or concealment, unexplained by the de- 
 fendant, is evidence from which fraud may fairly be presumed. It is 
 immaterial whether the will, etc., be stolen during the life or after 
 the death of the testator, or whether it relate to real or personal 
 estate, or to both. 
 
 No person can be convicted of this offence by any evidence what' 
 ever, in respect of any act done by him, if at any time previously 
 to his being charged with the offence he shall " have first disclosed 
 such act on oath, in consequence of any compulsory process of any 
 court of law or equity, in any action, suit or proceeding which shall 
 have been bona fide instituted by any party aggrieved : or if he 
 shall have first disclosed the same in any examination or deposition 
 before any court upon the hearing of any matter in bankruptcy or 
 insolvency." 
 
 The words of the repealed statute, 7 eg 8 (?. 4, c. 29, «. 23, were 
 ■different from the present, in not confining the protection to the case 
 where the defendant shall have first disclosed the act on oath in 
 
Larceny. 357 
 
 consequence of the compulsoiy process of any com-t, etc., or in any 
 examination or deposition in bankruptcy : and where a defendant, 
 indicted for having fraudulently transferred for his own benefit a bill 
 of lading intrusted to him as a broker, under 6 <£ 6 Viet. u. 39, which 
 contained a proviso similar in its terms to the last branch of the 
 proviso in the T S 8G. 4, c. 29, s. 23, had, after he was charged with 
 the offence before a magistrate, upon which occasion depositions 
 were taken containing full evidence to support the charge, but before 
 he was indicted, made, in his examination in the court of bank- 
 ruptcy, a statement which was substantially an admission of the facts 
 stated in such depositions, the judges were divided ou the question 
 whether the defendant was protected by the proviso : the majority 
 holding that he was not, for that the disclosure intended by the 
 statute was a statement of that which was before unknown or inca- 
 pable of proof, or which, at all events, he had reason to believe was 
 so. It. V. Skeen, Bell, 97; 28 L. J. (M. C.) 91. This difficulty, it 
 will be seen, is avoided by the language of the present statute, which 
 limits the protection to the case where the party shall, previously to 
 his being charged with (not indicted for) the offence, have first dis- 
 closed the act on oath, etc. 
 
 STEALING DOCUMENTS OF TITLE TO REAL ESTATE. 
 
 24 (& 25 Vict. c. 96, s. I— Document of Title, «)/ia«.]— The term 
 "document of title to lands" shall include any deed, map, paper or 
 parchment, Written or printed, or partly written and partly printed, 
 being- or containing evidence of the title, or any part of the title, to 
 any real estate, or to any interest in or out of any real estate. 
 
 Sect. 28.] — Whosoever shall steal, or shall for any fraudulent pur- 
 pose destroy, cancel, obliterate or conceal, the whole or any part 
 of any document of title to lands, shall be guilty of felony, and 
 being convicted thereof shall be liable, at the discretion of the 
 court, to be kept in penal servitude for the term of three years [now 
 five years, 27 & 28 Vict. c. 47, s. 2, ante, p. 173], or to be imprisoned 
 for any term not exceeding two years, with or without hard labour, 
 and with or without solitary confinement ; and in any indictment 
 for any such offence relating to any document of title to lauds, it 
 shall be sufficient to allege such document to be or to contain evi- 
 dence of the title or of part of the title of the person or of some one 
 of the persons having an interest, whether vested or contingent, 
 legal or equitable, in the real estate to which the same relates, and 
 to mention such real estate or some part thereof. 
 
 Sect.2^.-\-AnU,p.Z55. 
 
 Indictment. 
 Commencement as ante, p. 313]— a certain deed, the property of 
 J. N., bemg [or containing] evidence of the title [or, of part of the 
 title] of the said J.N. to a certain real estate [or, to part of a certain 
 real estate] called Whiteacre, in which said real estate the said J N 
 then had, and still hath, an interest, feloniously did steal, take and 
 
358 Larceny. 
 
 carry away (or feloniously and unlawfully, and for a fraudulent pur- 
 pose did destroy {destroy, cancel, obliterate or conceaV]): against the 
 form [as ante, p. 347]. Add a second count, describing the nature of 
 the instrument more particularly thus: — a certain other deed, being a 
 deed of release between A. B., of the one part, and C. D., of the other 
 part, the property of J. N., being evidence, etc. And where the 
 indictment is for destroying, etc., the document, add a count specifyinn 
 the fraudulent purpose, if it can be done; see ante, p. 356. It is suf- 
 ficient to allege the document stolen to be or to contain evidence of the, 
 title, or of part of the title, of the person, or of some one of the persons, 
 having an interest, whether vested or contingent, legal or equitable, in 
 the real estate to which the same relates; and to mention such real 
 estate, or some part thereof. — 24 <£■ 25 Vict. e. 96, s. 28. 
 
 Mortgage deeds, being subsisting securities for money, are choses hi 
 action, arid cannot he described in an indictment as " goods and chat- 
 tels." R. V. Powell, 2 Den. 403; 21 L. J. (M. C.) 78. 
 
 Felony: penal servitude for Jive [27 (& 28 Vict. c. 47, s. 2, ante, 
 p. 173] years, or imprisonment for not more than two years, with or 
 without hard labour, and with or without solitary confinement {such 
 confinement not exceeding one month at any one time, nor three months 
 in any one year, 24 & 25 Vict. c. 96, s. 119, ante, p. 308). — 24 <& 25 
 Vict. c. 96, s. 28. As to requiring the offender to enter into recog- 
 nizances and find sureties for keeping the peace. Id. s. 117 (ante, 
 p. 307). 
 
 This offence is not triable at quarter sessions. 5 <£• 6 Vict. c. 38, 
 s. 1 (ante, p. 104). 
 
 Evidence. 
 
 Prove a larceny of the deed, as directed ante, p. 314, et seq. 
 Prove, also, that it is or contains evidence of the title or part of the 
 title of J. N. to the real estate mentioned in the indictment, or part 
 of it, which may be done by producing the instrument, or giving 
 secondary evidence of it (see ante, p. 219), and by showing how 
 J. N. claims the estate. Prove, also, that at the time of the lar- 
 ceny J. N. had an interest (whether vested or contingent, legal or 
 equitable, is sufficient), in the real estate, of his title to which the 
 deed is evidence. 
 
 No person can be convicted of this offence by any evidence what- 
 ever, in respect of any act done by him, if at any time previously to 
 his being charged with the offence he shall "have first disclosed 
 such act on oath, in consequence of any compulsory process of any 
 court of law or equity, in any action, suit or proceeding which shall 
 have been bond fide instituted by any party aggrieved, or if he shall 
 have first disclosed the same in any compulsory examination or 
 deposition before any court upon the hearing of any matter in 
 bankruptcy or insolvency." 24 c6 25 Vict. c. 96, s. 29 (see ante, 
 p. 355). 
 
 CONCEALMENT OP INSTRUMENT OF TITLE OE FALSIFICATION OF 
 PEDIGREE BY VENDOR OE MORTGAGOR OR HIS SOLICITOR OK 
 AGENT. 
 
 22 S 23 Vict. c. 35, s. 24.] — Any seller or mortgagor of land, or 
 of any chattels, real or personal, or choses in action conveyed or 
 
Larceny. 359 
 
 assigned to a purchaser {or mortgagee, see 23 & 24 Vict. e. 38, s. 8, 
 infra\, or the solicitor or agent of any such seller or mortgagor, who 
 shall, after the passing of this act, conceal any settlement, deed, will, 
 or other instrument material to the title, or any incumbrance from 
 the pm-chascr \or mortgagee, see 23 & 24 Vict. c. 38, s. 8, infra], or 
 falsify any pedigree upon which the title does or may depend, in 
 order to induce him to accept the title offered or produced to him, 
 with intent in any of such cases to defraud, shall be guilty of a mis- 
 demeanor, and being found guilty shall be liable, at the discretion 
 of the covurt, to suffer such punishment by fine or imprisonment for 
 any time not exceeding two years, with or without hard labour or 
 by both, as the court shall award, and shall also be liable to an 
 action for damages at the suit of the purchaser or mortgagee, or 
 those claiming under the purchaser or mortgagee, for any loss sus- 
 tained by them or either or any of them in consequence of the set- 
 tlement, deed, will, or other iustrument or incumbrance sp concealed, 
 or of any claim made by any person under such pedigree, but whose 
 light was concealed by the falsification of such pedigree ; and in 
 estimating such damages, where the estate shall be recovered from 
 such pm-chaser or mortgagee, or fl-om those claiming under the 
 purchaser or mortgagee, regard shall be had to any expenditm-e by 
 them or either or any of them in improvements on the land: but no 
 prosecution for any offence included in this section against any seller 
 or mortgagor, or any solicitor or agent, shall be commenced without 
 the sanction of her Majesty's attorney-general, or in case that office 
 be vacant of her Majesty's solicitor-general; and no such sanction 
 shall be given without such previous notice of the application for 
 leave to prosecute to the person intended to be prosecuted as the 
 attorney-general or the solicitor-general (as the case may be) shall 
 direct. 
 
 Sect. 25 — Interpretation.] — In the construction of the previous 
 provisions in this act the term " land" shall be taken to include all 
 tenements and hereditaments, and any part or share of or estate or 
 interest in any tenements or hereditaments, of what tenm-e or 
 kind soever; and the term "mortgage" shall be taken to include 
 every instrument by virtue whereof land is in any manner conveyed, 
 assigned, pledged, or charged as security for the repayment of 
 money or money's worth lent, and to be reconveyed, re-assigned, or 
 released on satisfaction of the debt ; and the term " mortgagor " 
 shall be taken to include every person by whom such conveyance, 
 assignment, pledge, or charge as aforesaid shall be made ; and the 
 term " mortgagee" shall be taken to include every person to whom 
 or m whose favour any such conveyance, assignment, pledge, or 
 charge as aforesaid is made or transfeiTed. 
 
 , 23 & 24 Vict. V. 38, s. 8.]— The section 24 in the act 22 <& 23 Vict, 
 c. 3o, shall be read and construed as if the words " or mortgagee" 
 had followed the word "purchaser" in everv place where the latter 
 word IS mtroduced in the said section. 
 
360 Larceny. 
 
 STEALING, OR SEVERING WITH INTENT TO STEAL, OEE, ETC. 
 PROM A MINE. 
 
 Statute. 
 
 24 & 25 Vict. c. 96, s. 38.]— Wliosoever shall steal, or sever with 
 intent to steal, the ore of any metal, or any lapis calaminaris, man- 
 ganese, or mundick, or any wad, black cawke, or blaek lead, or any 
 coal or cannel coal from any mine, bed, or vein thereof respectively 
 shall be guilty of felony, and being convicted thereof shall be liable, 
 at the discretion of the com-t, to be imprisoned for any term not ex- 
 ceeding two years, with or without hard laboiu-, and with or without 
 solitary confinement. 
 
 Indictment. 
 
 Commencement as ante, p. 313] — twenty pounds' weight of copper 
 ore, (" the ore of any metal, or any lapis calaminaris, manganese, or 
 mundicJc, or any wad, black cawhe, or blach lead, or any coal or cannel 
 coal,") the property of J. N., from a certain mine of copper ore 
 (" mine, hed, or vein thereof respectively"') of the said J. N., situate 
 
 in the parish of , in the county of , feloniously did steal, take, 
 
 and carry away [or feloniously did sever, with intent the same then 
 and there feloniously to steal, take and carry away] ; against the 
 form [as ante, p. 347]. An indictment alleging that the defendants 
 being persons employed in a mine, in the parish of, etc., in the county 
 of Cornwall, on etc., at, etc., did steal certain ore, the property of the 
 adventurers in the said mine, then and there being fownd, did not suffi- 
 ciently show that the ore was stolen from the mine. R. v. Treoenner, 2 
 if. c6i?o6. 476. 
 
 Felony : imprisonment not exceeding two years, mth or without hard 
 labour, and with or without solitary confinement, (such confinement not 
 exceeding one month at any one time, nor three months in any one year, 
 24 & 25 Vict. c. 96, ss. 119, ante, p. 308.)— "24 & 25 Vict. c. 96, s. 38. 
 As to requiring the offender to enter into recognizances and find sureties 
 for keeping the peace, Id. s. 117 (ante, p. 307). 
 
 Evidence. 
 
 Prove a larceny of the ore, etc., as directed ante, p. 314, et seq., or 
 if a severance with intent to steal be alleged in the indictment, 
 prove the severance, and circumstances from which the jury may 
 infer the intent. (See ante, p. 208, and B. v. Bleasdale, 2 C.&K. 
 765, ante, p. 216.) Prove, also, that the mine was at the time in 
 the possession or occupancy of J. N., and is situate as described in 
 the indictment. 
 
 It was held not to bo larceny for miners employed to bring ore to 
 the sm-face, and paid by the owners according to the quantity pro- 
 duced, to remove from the heaps of other miners ore produced by 
 them, and add it to their own, in order to increase their wages, the 
 ore still remaining in the possession of the owner. R. v. Wehh, 1 
 Mood. C. C. 431. But now by 24 cd 25 Vict. c. 96, s. 39, " Whosoever 
 being employed in or about any mine, shall take, remove, or conceal 
 any ore of any metal, or any lapis calaminaris, manganese, mundick, 
 or other mineral found or being in such mine, with intent to defraud 
 any proprietor of or any adventurer in such mine, or any workman 
 or miner employed therein, shall be guilty of felony, and being con- 
 victed thereof shall be liable, at the discretion of the court, to be 
 
Larceny. 361 
 
 imprisoned for any term not exceeding two years, with or without 
 hard laboiu-, and with or without solitary confinement." 
 
 STEALING OK CUTTINO TREES, ETC. 
 
 Statute. 
 24 (& 25 Vict. c. 96, s. 32.]— Whosoever shall steal,_ or shall cut, 
 break, root up, or otherwise destroy or damage with intent to steal, 
 the whole or any part of any tree, sapling, or shrub, or any under- 
 wood, respectively growing in any park, pleasure-ground, garden, 
 orchard, or avenue, or in any ground adjoining or belonging to any 
 dwelling-house, shall (in case the value of the article or articles 
 stolen, or the amount of the injury done, 'shall exceed the sum of 
 one pound) be guilty of felony, and being convicted thereof shall be 
 liable to be punished as in the case of simple lai-ceny; {ante, p. 303;) 
 and whosoever shall steal, or shall cut, break, root up, or otherwise de- 
 stroy or damage with intent to steal, the whole or any part of any tree, 
 sapling, or shrub, or any underwood, respectively growing elsewhere 
 than in any of the situations in this section before mentioned, shall 
 (in case the value of the article or articles stolen, or the amount 
 of the injury done shall exceed the sum of five pounds) be guilty of 
 felony, and being convicted thereof shall be liable to be punished as 
 in the case of simple larceny. {Ante, p. 303.) 
 
 Indictment for stealing, or cutting, etc., with Intent to steal. Trees, etc., 
 in Parhs, etc., Value above £1. 
 
 Commencement as ante, p. 313] — one oak tree (" the whole or any 
 part of any tree, sapling, or shrub, or any underwood") of the value 
 of two pounds,* the property of J. N., then growing in a certain 
 park Q^parh, pleasure-ground, garden, orchard, avenue or any ground 
 adjoining or belonging to amy dwelling-house") of the said J. N., 
 
 situate in the parish of , in the county of , in the said park 
 
 feloniously did steal, take, and carry away [or, feloniously did cut, 
 (" cut, break, root up, or othermse destroy or damage,") with intent 
 the same feloniously to steal, take, and carry away, then thereby 
 doing injury to the said J. N., to an amount exceeding the sum of 
 one pound, to wit, to the amount of two pounds]; against the form 
 [as ante, p. 5il^. 
 
 * If the indictment be for cutting, etc., with intent to steal, omit this 
 allegation of value. 
 
 Felony: punishment same as in simple larceny, 24 <A 25 Vict. c. 96, 
 ». 32. {See ante, p. S13.) 
 
 Evidence. 
 Prove a larceny of the tree, as directed ante, p. 314, et seq.; or, if 
 the indictment allege that the defendant cut, etc. the tree with intent 
 to steal if, prove the cutting, etc., as stated in the indictment, and 
 circumstances from which the jury may infer the intent. (See ante, 
 p. 208.) In the former case, the value of the tree, and in the latter, 
 the amount of the injury done, must be proved to exceed the sum of 
 
362 Larceny. 
 
 11. But if several trees be stolen or cut at the same time, or so con- 
 tinuously as to form one transaction, and the value or injury done 
 exceed that amount in the aggregate, it will be sufficient. R. v. 
 Shepherd, L. R., 1 C. G. R. 118; 37 L. J. (M. C.) 45. The injury 
 mentioned in the statute means the actual injury to the tree itself, 
 not consequential injury resulting from the defendant's act; and where 
 the evidence showed that the actual injury done to certain trees 
 damaged by the defendant was less than the statutable amount, but 
 that it would, in consequence of the damage done, be necessary to 
 stub up and replace part of an old hedge, at an expense gi'eater than 
 the statutable amount, this was holden insufficient. R. v. Whileman, 
 Dears. 353 ; 23 L. J. (M. C.) 120. Prove that the tree, etc. stolen 
 or out, etc., was at the time growing in a pai-k, etc., belonging to or 
 in the occupation of J. N., and situate as described in the indict- 
 ment. The words '' adjoining any dwelling-house" import actual 
 contact; and therefore ground separated from a house by a narrow 
 walk and paling, wall, or gate, is not within their meaning. R. v. 
 Hodges, M.& M. 341. 
 
 Indictment for stealing, or cutting, etc., with Intent to steal. Trees, etc., 
 growing elsewhere. Value above £6. 
 
 Commencement as ante, p. 313] — one ash-tree (" the whole or aiaxj 
 part of any tree, sapling, or shrub, or any underwood,") of the value of 
 six pounds,'* the property of J. N., then growing in a certain close 
 (" elsewJiere than in a park, pleasure-ground, garden, orchard, avenue, or 
 any ground adjoining or belonging to any dwelling-house"), of the said 
 
 J. N., situate in the parish of , in the county of , in the said 
 
 close, feloniously did steal, take, and cany away \or, feloniously did 
 cut (" cut, break, root up, or otherwise damage or destroy") with intent 
 the same feloniously to steal, take, and carry away; thereby then 
 doing injury to the said J. N., to an amount exceeding the sum of 
 five pounds, to wit, to the amount of six pounds] ; against the form 
 [as ante, p. 347] . 
 
 ' If the indictment be for cutting, etc., with intent to steal, etc., omit 
 this allegation of value. 
 
 Felony: see the last precedent. 24 c& 25 Vict. c. 96, s. 32 (ante, 
 p. 361.) 
 
 Eoidence. 
 Prove a lai-ceny of the tree, as directed ante, p. 314, et seq. ; or, if 
 the indictment allege that the defendant cut, etc. the tree with intent 
 to steal it, prove the cutting, as stated in the indictment, and cir- 
 cumstances from which the jury may infer the intent. (See ante, 
 p. 208.) In the former case, the value of the tree, and in the latter 
 the amount of injury done (see ante, p. 361), must be proved to 
 exceed the value of 61. ; but if several trees be stolen or cut at the 
 same time, or so continuously as to form one transaction, and the 
 value or injury done in the aggregate exceed that amount, it will be 
 sufficient. R. v. Shepherd, L. R., 1 C. C. R. 118; 37 L. J. (M. C.) 
 45. Prove that the close in which the tree was stolen or cut 
 belonged to, or was in the occupation of, J. N., and was situate as 
 described in the indictment. It is not necessary to prove that the 
 close was not a park, etc. 
 
Larceny. 3G3 
 
 STEALING OK CUTTING TREES, AFTER TVTO PREVIOUS CONVICTIONS. 
 
 Statute. 
 24 & 25 Vict. c. 96, s. 33.]— T\Tiosoever sliall steal, or shall cut, 
 break, root up, or otherwise destroy or damage with intent to steal, 
 the whole or any part of any tree, sapling, or shrub, or any under- 
 wood, wheresoever the same maybe respectively growing, the steal- 
 ing of such article or articles, or the injury done being to the amount 
 of a shilling at the least, shall, on conviction thereof before a justice 
 of the peace, forfeit and pay, over and above the value of the article 
 or articles stolen, or the amount of the injury done, such sum of 
 money, not exceeding five pounds, as to the justice shall seem meet; 
 and whosoever, having been convicted of any such offence, either 
 against this or any former act of parliament, shall afterwards commit 
 any of the said offences in this section before mentioned, and shall 
 be convicted thereof in like manner, shall for such second offence be 
 committed to the common gaol or house of correction, there to be 
 kept to hard labour for such term, not exceeding twelve months, as 
 the convicting justice shall think fit; and whosoever, having been 
 twice convicted of any such offence (whether both or either of such 
 convictions shall have taken place before or after the passing of this 
 act), shall afterwards commit any of the offences in this section 
 before mentioned shall be guilty of felony, and, being convicted 
 thereof, shall be liable to be punished in the same manner as in the 
 case of simple larceny. {Aide, p. 303.) 
 
 Indictment. 
 Middlesex, to wit: The jurors for our lady the Queen, upon their 
 
 oath present, that J. S., on the day of , A D. 1866, one oak 
 
 sapling, (" tlie whole or any part of any tree, sapling or shntb, or any 
 underwood") of the value of two shillings,* the property of J. N., 
 
 then growing in certain land situate in the parish of , in the 
 
 county of , (" wheresoever growing,") unlawfully did steal, take 
 
 and carry away, [or imlawfuUy did cut, (" cut, break, root up, or other- 
 wise destroy or damage,") with intent the same unlawfully to steal, 
 take and carry away, thereby then doing injury to the said J. N., to 
 an amount exceeding the sum of one shilling, to wit, to the amount 
 of two shillings,] against the form of the statute in such case made 
 and provided : And the jurors aforesaid, upon their oath aforesaid, 
 do say, that heretofore and before the committing of the offence, 
 
 hereinbefore mentioned, to wit, on the day of , a.d. 1865, 
 
 »' . in the county of , the said J. S. was duly convicted 
 
 before J. P., one of her said Majesty's justices of the peace for the 
 
 said county of , for that he the said J. S., on [etc., as in the first 
 
 conviction to the TOJ-&]— against the form of the statute in such case 
 made and provided; and the said J. S. was thereupon then and there 
 adjudged, for his said offence, to forfeit and pay the sum of five 
 poimds, over and above the value of the said tree so stolen as afore- 
 said, and the further sum of two shillings, being the value of the 
 
 said tree, and also to pay the ftu-ther sum of shillings for costs; 
 
 and, in default of immediate payment of the said sums, to be 
 
 imprisoned in the , and there kept to hard labour for the space 
 
 °'.- calendar mouths, unless the said sums should be sooner 
 
 paid: And the jurors aforesaid, upon their oath aforesaid, do further 
 
 k2 
 
364 Larceny. 
 
 say, that heretofore and before the committing of the offence first 
 
 hereinbefore mentioned, to wit, on the day of , a.d. 1866, 
 
 at — — , in the county of , the said J. S. was duly convicted 
 
 before L. S., one of her Majesty's justices of the peace for the said 
 
 county of , for that he [etc., setting out the second conviction 
 
 in the same manner as the first and proceed thus"] : And so the jurors 
 aforesaid, upon their oatli aforesaid, do say, that the said J. S., 
 on the day and year first aforesaid, the said oak sapling, of the value 
 of two shillings,* the property of the said J. N., then gi-owing in the 
 
 said land, situate in the said parish of , in the said county 
 
 of , feloniously did steal, take and carry away \or feloniously 
 
 did cut, with intent the same feloniously to steal, take and cany 
 away, tliereby then doing injury to the said J. N., to an amount 
 exceeding the sum of one shilling, to wit, to the amount of two 
 shillings], against the form of the statute in such case made and 
 provided! 
 
 Second count. — And the jurors aforesaid, upon their oath afore- 
 said, do further present, that the said J. S. afterwards, to wit, on 
 
 the day of , A.D. 1866, one oak sapling, of the value of two 
 
 shillings,* the property of the said J. N., then growing in certain 
 
 land, situate in the said parish of , in the said county of , 
 
 feloniously did steal, take and carry away [or feloniously did cut, 
 with intent the same feloniously to steal, take and carry away, 
 thereby then doing injury to the said J. N., to an amount exceeding 
 the sum of one ' shilling, to wit, to the amount of two shiUings], 
 against the form of the statute in such case made and provided: 
 And the jurors aforesaid, upon their oath aforesaid, do say, that 
 heretofore and before the committing of the offence in this count 
 
 hereinbefore mentioned, to wit, on the day of , a.d. 1865 
 
 [here set out the first conviction as in the first county. And the jurors 
 aforesaid, upon their oath aforesaid, do further say, that heretofore, 
 and before the committing of the offence in this count first herein- 
 before mentioned, to wit, on the day of , a.d. 1866 [here 
 
 set out the second conviction as directed in the first count]. 
 
 * If the indictment be for cutting, etc., tvith intent to steal, omit tlie 
 allegation of value in this jjlace. 
 
 A first and second offence against the 24 <£• 25 Vict. c. 96, s. 33, 
 supra, are both punishable on summary conviction, but a subsequent 
 offence against that section is a felony. The 24 (6 25 Vict. e. 96, 
 s. 116, ante, p. 307, enacts, that "in any indictment for any offence 
 punishable under this act, and committed after a previous conviction 
 or convictions for any felony, misdemeanor, or offence or offences 
 pvnishahle upon summary conviction, it shall be sufficient, after 
 charging the subsequent offence, to state that the offender was at a 
 certain time and place or at certain times and places convicted of 
 felony, or of an indictable misdemeanor, or of an offence or offences 
 punishable upon summary conviction (as the case may be), without 
 otherwise describing the previous felony, misdemeanor, offence or 
 offences," etc. It appears clear from this enactment that it was in- 
 tended that the subsequent offence should be first charged, and in 
 both counts of the above form of indictment that course has ac- 
 cordingly been adopted. 
 
 It will be seen that the first count consists of three parts :— 1. The 
 charge of the subsequent offence which is charged as an offence, not 
 as afehmy. 2. The charge of the two previous summary convictions. 
 3. An averment commencing, " And so the jurors aforesaid," etc. The 
 
Larceny. 365 
 
 reason for chai-ging the subsequent offence first has been already 
 given The reason for charging it in the first instance as an offence 
 Inly is as follows :-Sect. 116, above refen-ed to, goes on to enact 
 that "the proceedings upon any indictment for committing any 
 offence after a previous conviction or convictions shall be as follows 
 •(that is to say), the offender shall, in the first instance, be arraigned 
 upon so much only of the indictment as charges the subsequent 
 offence, and if he plead not guilty, or if the Court order a plea of not 
 guilty to be entered on his behalf, the jury shall be charged, m the 
 first "instance, to inquire concerning such subsequent offence only ; 
 and if they find him guilty, or if on arraignment he plead guilty, he 
 shall then, and not before, be asked whether he had been previously 
 ■convicted, as alleged in the indictment, and if he answer that he had 
 been so previously convicted, the court may proceed to sentence 
 him accordingly; but if he deny that he had been so previously con- 
 victed, or stand mute of malice, or will not answer directly to such 
 question, the jury shall then be charged to inquii-e concerning such 
 previous conviction or convictions, and in such case it shall not be 
 necessary to swear the jury again, but the oath already taken by 
 them shall for all purposes be deemed to extend to such last-men- 
 tioned inquiry." In pursuance of this enactment, therefore, the 
 prisoner must be first arraigned for the subsequent offence, and if he 
 plead not guilty, the jury must first inquire and give their verdict 
 • concerning that subsequent offente. They cannot find the prisoner 
 guilty oi felonious stealing at that stage of the proceedings, for they 
 are then ignorant of the previous conviction, and therefore, at that 
 stage they can only find him guilty of the offence of unlawfully steal- 
 ing. If they find him guilty of the unlawful stealing, they are then 
 to inquire of the previous convictions. If they find him guilty of 
 the previous convictions, or if he pleads guilty to them, the in- 
 gredients are complete which make the felony, which, however, up 
 to that time they have not expressly found. But then follows the 
 third par{ of the indictment, "And so the jurors aforesaid," etc. 
 This last part of the indictment, perhaps, need not be put to the 
 jury in so many words, as the verdict of guilty of the subsequent 
 offence, together with the verdict of guilty of the previous con- 
 victions, amount to a verdict of guilty of the felony, and would, as 
 it should seem, authorize the entry of such a verdict on the record. 
 That tlie omission of the word "feloniously" in the first part of the 
 indictment does not vitiate it, see B. v. Crighton, B. & B. 62, in which 
 case an indictment for embezzlement was held good, in which the 
 word " feloniously" was omitted before the word " embezzled," in the 
 first part of the indictment, which, however, concluded, — and so the 
 jurors say that the prisoner did " feloniously embezzle, steal, take 
 and carry away," etc. Sect. 116 of 24 & 25 Vict. c. 96, is analogous 
 to sect. 37 of 24 & 25 Vict. c. 99 (The Coinage Act), and the mode 
 ■of proceeding at the trial above suggested was approved by the 
 Court of Criminal Appeal in B. v. Martin, L. B., 1 C. C. B. 214 ; 39 
 L. J. (M. C.) 31, where the prisoner was indicted under s. 12 of 24 
 ■cfc 25 Vict. c. 99, for being unlawfully in possession of counterfeit 
 coin, after having been convicted of unlawfully uttering counterfeit 
 ■coin. The court held that, as s. 37 of 24 <& 25 Vict. c. 99, regulated 
 the mode of proceeding at the trial, the prisoner must first be 
 an-aigned upon the subsequent offence, and evidence respecting the 
 ■subsequent offence must first be submitted to the jury, and the charge 
 
366 Larceny. 
 
 of the previous conviction must not be inquired into until after the 
 verdict on the charge of the subsequent offence. 
 
 The second count varies from the first in charging the subsequent 
 offence in the first instance as a felony. 
 
 As to setting out the previous convictions at full in the indictment, 
 see ante, p. 353. 
 
 Felony : punishable as simple larceny. 24 <fe 25 Vict. c. 96, g. 33. 
 (See ante, p. 313.) 
 
 Emidence. 
 
 Prove the larceny of the sapling, as directed arafe, p. 314, et seq.; 
 or, if the defendant be charged with cutting, etc. the sapling with 
 intent to steal it, the cutting, as stated in the indictment, and cir- 
 cumstances from which the jury may imply the intent. {See ante, 
 p. 208.) Prove, also, that the sapling was growing on land belong- 
 ing to or in the occupation of J. N., and that, in the first case, the 
 value, and, in the second, the amount of the injury done (see ante, 
 pp. 361, 362), exceeds one shilling. If the defendant pleads guilty, 
 or is found guilty, of the subsequent offence, prove the two foi-iner 
 convictions in manner directed by 24 & 25 Vict. c. 96, s. 116 (onie, 
 p. 307), and the identity of the defendant. The course of proceed- 
 ings at the trial as to the arraignment, etc. (as to wliich, see ante, 
 pp. 364, 365), is also regulated by -the last-named section. 
 
 STEALING OK DESTROYING PLANTS, ETC., IN GARDENS, ETC. 
 
 Statute. 
 
 24 & 25 Vict. c. 96, s. 36.] — Whosoever shall steal, or shall destroy 
 or damage with intent to steal, any plant, root, fruit or vegetable 
 production growing in any garden, orchard, pleasure-ground, nursery- 
 ground, hothouse, greenhouse or conservatory, shall, on conviction 
 thereof before a justice of the peace, at the discretion of the -justice, 
 cither be committed to the common gaol or house of correction, 
 there to be imprisoned only, or to be imprisoned and kept to hard 
 labour for any term not exceeding six months, or else shall forfeit 
 and pay, over and above the value of the article or articles so stolen, 
 or the amount of the injury done, such sum of money, not exceeding 
 twenty pounds, as to the justice shall seem meet ; and whosoever, 
 having been convicted of any such offence, either against this or any 
 former act of parliament, shall afterwards commit any of the offences 
 in this section before mentioned, shall be guilty of felony, and being 
 convicted thereof shall be liable to be punished in the same manner 
 as in the case of simple larceny. 
 
 Indictment. 
 Middlesex, to wit : The jurors for our lady the Queen, upon their 
 
 oath present, that J. S., on the day of , a.d. 1866, twenty 
 
 pounds' weight of grapes {"plant, root, fruit, or vegetable production ), 
 the property of J. N., then growing in a certain garden (" garden, 
 orchard, pleasure-ground, nursery -ground, hothouse, green-house, or 
 
Larceny. 367 
 
 conservatory") of the said J. N., situate in the parish of , in the 
 
 county of , unlawfully did steal, take, and carry away [or unlaw- 
 fully did damage (" destroy or damage"), with intent the same then 
 and there unlawfully to steal, take, and carr;y away] ; against the 
 form of the statute in such case made and provided : And the jurors 
 aforesaid, upon their oath aforesaid, do say, that heretofore, and 
 before the committing of the offence hereinbefore mentioned, to wit, 
 
 on the day of , a.d. 1865, at , in the county of , 
 
 the said J. S. was duly convicted before J. P., one of her said Ma- 
 jesty's justices of the peace for the said county of , for that he the 
 
 said J. S. on [etc., as in the previous conviction to the words'] — against 
 the form of the statute in such case made and provided ; and the 
 said J. S. was thereupon then and there adjudged for his said offence 
 to forfeit and pay the sum of twenty pounds, over and above the 
 amount of the injury so done as aforesaid, and the further sum of 
 six shillings, being the amount of the said injury; and also to pay 
 
 the sum of shillings for costs ; and, in default of immediate 
 
 payment of the said sums, to be imprisoned in the , and there 
 
 kept to hard labour for the space of calendar months, unless the 
 
 said sums should be sooner paid: And so the jurors aforesaid, upon 
 their oath aforesaid, do say, that the said J. S. on the day and in the 
 year first aforesaid, the said twenty pounds' weight of grapes, the 
 property of the said J. N., then growing in the said garden of the 
 
 said J. N., situate in the said parish of , in the said county of 
 
 , feloniously did steal, take and carry away [or feloniously did 
 
 damage, with intent the same then and there feloniously to steal, 
 take and carry away] ; against the form of the statute in such case 
 made and provided. 
 Second coanf.— And the jurors aforesaid, upon their oath aforesaid, 
 
 do further present, that the said J. S. afterwards, to wit, on the 
 
 day of , A.D. 1866, twenty pounds' weight of grapes, the property 
 
 of the said J. N., then gi-owing in a certain garden of the said J. N., 
 situate in the said parish o' , in the said county of , felo- 
 niously did steal, take, and caiTy away [or feloniously did damage 
 with intent the same then and there feloniously to steal, take, and 
 carry away] ; against the form of the statute in such case made and 
 provided : And the jurors aforesaid, upon their oath aforesaid, do 
 say, that heretofore, and before the committing of the offence in this 
 
 count hereinbefore mentioned, to wit, on the day of , a.d. 
 
 1865 [here set out the previous conviction as in the first count] . As to 
 the form of this indictment, see the note to the last precedent, ontf 
 p. 364. 
 
 Felony : punishable as simple larCmy. (See ante, p. 313.) 24 & 25 
 Vict. c. 96, s. 36. 
 
 Evidence. 
 
 .. Proye/ larceny of the grapes, as directed ante, p. 314 et seq.; or, 
 if the mdictment allege that the defendant damaged the grapes with 
 intent to steal them, the damage, as stated in the indictment, and 
 
 *"'o^?\^*^?>°®^ ^™™ ^^'* *''^ j'^^'y ™^y i"fer the intent. (See ante, 
 p. 208.) Prove, also, that at the time of the offence the grapes were 
 growing in a garden belonging to or in the occupation of J. N., and 
 situated as described in the indictment. If the defendant plead 
 guilty to, or IS found guilty of, the subsequent offence, prove the 
 previous conviction in manner directed by the 24 <£- 25 Vict. c. 96 
 ^. 116 (ante, p. 307), and the identity of the defendant. The course 
 
388 Larceny. 
 
 Bay, that heretofore, and before the committing of the offence in this 
 
 count hereinbefore mentioned, to wit, on the day of , a.d. 
 
 1865, at , in the county of , the said J. S. was duly convicted 
 
 before J. P., one of her said Majesty's justices of the peace for the 
 
 said county of , for that he the said J. S. [setting out the preoimt 
 
 conviction]. As to the form of this indictment, see the note to the pre- 
 cedent, ante, p. 363. 
 
 Felony : punishable as mentioned in the last precedent, ^i&lh Vict. 
 c. 96, «. 12. The offences relating to deer for which a peemdary pen- 
 alty is imposed, are : First, the coursing, hunting, sna/ring, or canrymg 
 away, or killing or wounding, or attempting to Mil or wound, any deer 
 kept or being in the uninclosed part of arey forest, chase, or purlieu, for 
 thkfwst time. 24 & 25 Yict. c. 96, s. 12. Secondly, the being in pos- 
 session of, or knowingly having upon the premises, any deer, or the 
 head, skin, or other part thereof, or any engine or snare for the talcing 
 of deer. Id. s. 14. Lastly, the setting or using any snare or engine 
 whatsoever, for the purpose of taking or killing deer, in amy part of am/ 
 forest, chase, or purlieu, whether inclosed or not, or in any bank, or 
 fence dividing the same from any land adjoining, or in any inchsed 
 land where deer are usually kept, or destroying any of the fence of amy 
 land where any deer shall be then kept. Id. s. 15. 
 
 Evidence. 
 
 To support this indictment, you must prove the hunting, killing, 
 or stealing of the deer by the defendant, as stated in the indictment 
 — the commission of the offence in an uninclosed part of the forest, 
 as described, and the locality of that part of the forest in which 
 the offence was committed. If the defendant pleads guilty to, or 
 is found guilty of, the subsequent offence, prove the previous con- 
 viction in manner directed by 24 d 25 Vict. c. 96, «. 116 (ante, 
 p. 307), and the identity of the defendant. The course of proceed- 
 ings at the trial, as to arraignment, etc., is regulated by the last- 
 named section. 
 
 The prisoner may take exception to the validity of the previous 
 conviction, and if it be bad, he cannot be convicted upon this indict- 
 ment. R. v. Allen, R. & R. 513. 
 
 Where a summary conviction for an offence relating to a deer did 
 not state substairtively where the place was situate in which the 
 offence was committed, but in awarding the distribution of the penalty 
 gave it to the overseers of D., in the said county, " where the said 
 offence was committed," it was holden good. R. v. Weale, bC.&P. 
 135. 
 
 TAKING OK KILLING HARES OR RABBITS IN WARRENS, ETC., IN 
 THE NIGHT-TIME. 
 
 Statute. 
 24 & 25 Vict. c. 96, s. 17.]— Whosoever shall unlawfully and wil- 
 fully, between the expiration of the first hour after sunset, and the 
 beginning of the last hour before sunrise, take or kill any hare or 
 rabbit in any warren or ground lawfully used for the breeding or 
 keeping of hares or rabbits, whether the same be inclosed or not, 
 shall be guilty of a misdemeanor; and whosoever shall unlawfully 
 
%rceny, 389 
 
 id wilfully between the beginning of the last hour before sunrise 
 id the expiration of the first hour after sunset, take or kill any hare 
 ■ rabbit, in any such warren or ground, or shall at any time set or 
 ie therein any snare or engine for the taking of hares or rabbits, 
 lall, on conviction thereof before a justice of the peace, forfeit ajid 
 ly such sum of money, not exceeding five pounds, as, to the justice 
 lall seem meet; provided that nothing in this section contained 
 lall affect any person taking or killing in the day-time any rabbits 
 1 any sea-bank or river-bank in the county of Lincoln, so far as the 
 ie shall extend, or within one furlong of such bank. 
 
 Indictment. 
 
 Commencement as ante, p. 313]— between the expiration of the first 
 )ur after sunset and the beginning of the last hour before sunrise, 
 
 wit, about the hour of eleven in the night of the same day, in a 
 ii-tain warren and ground, (" in any warren or ground lawfully used 
 r the breeding or keeping of hares or rabbits, whether the same be 
 .closed or not,") in the occupation of J. N., situate in the parish of 
 
 — , in the county of , the said warren and ground then being 
 
 .wfully used for the breeding and keeping of hares, unlawfully and 
 ilfuUy did take twenty hares (" take or kill") ; against the form 
 IS ante, p. 347]. Add a count for taking rabbits, if it be necessary. 
 
 Misdemeanor : fine or imprisonment, or both (with sureties to keep 
 te peace and be of good behaviour, if the court shall think fit, 24 tfe 25 
 'ict. c. 96, s. 117, ante, p. 307).— 24 <& 25 Vict. c. 96, s. 17. 
 
 Evidence. 
 
 To support this indictment, you must prove — 1st. That the defend- 
 it took or killed the hares (or rabbits) in the place mentioned in 
 le indictment. " Taking," in the statute means " catching," and not 
 iking away. Where a defendant, who set several wires in a warren, 
 I one of which a rabbit was caught, was seized just as he was laying 
 aid of the wire to take the rabbit, which was then alive, the judges 
 Bid this to be a taking within the meaning of the repealed statute 
 (£ 8 Gr. 4, c. 29, s. 30. B. v. Glover, B. & B. 269.— 2n(^. That the 
 fence was committed in the night-time, as defined, for the purpose 
 "this offence, by the statute {supra), that is, between the expiration 
 ' the first hour after sunset, and the beginning of the last hour 
 jfore sunrise.— 3r(?. That the place in which the defendant took the 
 ires (or rabbits), was a warren or ground then used for the breeding 
 r keeping of hares (or rabbits) ; that it was in the occupation of 
 . N., and is situate as described in the indictment. It is immaterial 
 hether the ■jvarren or ground was inclosed or not. 
 
 The statute does not apply to taking or killing in the day-time 
 ly rabbits on any sea-bank or river-bank in the county of Lincoln, 
 ) far as the tide shall extend, or within one furlong of such bank. 
 
 TAKING OK DESTROYING PISH IN WATER ADJOINING A 
 DWELLING-HOUSE. 
 
 Statute. 
 24 c£ 25 Vict. c. 96, s. 24.] — Whosoever shall unlawiully and wil- 
 dly take or destroy any fish in any water which shall run through 
 
370 ■ Larceny. 
 
 Indictment for stealing or ripping, etc., with Intent to steal, Metal fieed 
 in a Square, etc. 
 
 Commencement as ante, p. 313] — ten iron rails, and twenty-five 
 pounds' weight of iron {'^anything made of metal"), then being fixed 
 in a certain square called Grosvenor Square, situate in the parish of 
 
 , in the county of (" «ra any square or street, or in any place 
 
 dedicated to •public use or ornament, or in any burial ground"), felo- 
 niously did steal, take, and carry away [or, feloniously did rip, cut, 
 sever, and break Q^rip, cut, sever, or break"), with intent the same 
 feloniously to steal, take, and carry away] ; against the form [as ante, 
 p. 347]. It is not necessary in the indictment to allege the thing stolen, 
 etc. to be the property of any person. 24 S 25 Vict. c. 96, s. 31. 
 
 Felony : punishable as simple larceny. {See ante, p. 318.) 24 d 25 
 Vict. c. 96, s. 31. 
 
 Evidence. 
 Prove a larceny of the rails, as directed ante, p. 314, et seq.; or, if 
 the indictment charge the defendant with ripping, etc. the rails 
 with intent to steal them, prove the ripping, etc., and circumstances 
 from which the jury may infer the intent. {See ante, p. 208.) Prove, 
 also, that the rails were fixed in the square, as mentioned in the 
 indictment, and that the square is situate as is there described. In 
 R. V. Blich, 4: C. S P. 377, Bosanquet, J., was of opinion that a 
 churchyard was a place dedicated to public use within the meaning 
 of the repealed act 7 tfc 8 G. 4, c. 29, s. 44, which, however, did not 
 contain the words " or in any burial ground;" and accordingly, that 
 it was felony within that act to rip or steal brass aflSxed to a tomb- 
 stone. So also, in R. v. Jones, Dears. & B. 555; 27 L. J. {M. C.) 
 171, the stealing of a copper sun-dial fixed on the top of a wooden 
 post in a churchyard was held to be within the same section. It is 
 not necessary to prove that the rails were the property of any person. 
 The defendant cannot be convicted of simple larceny. iJ. v. Oooch 
 {ante, p. 369). 
 
 STEALING VALTJABLE SECURITIES. 
 
 Statute. 
 24 (& 25 Vict. c. 96, s. 27.] — Whosoever shall steal, or shall for any 
 fraudulent purpose destroy, cancel, or obliterate the whole or any 
 part of any valuable security, other than a document of title to lands 
 {see ante, p. 367), shall be guilty of felony, of the same nature and in 
 the same degree, and punishable in the same manner, as if he had 
 stolen any chattel of like value with the .share, interest or deposit«to 
 whicii the security so stolen may relate, or with the money due on 
 the security so stolen, or secured thereby and remaining unsatisfied, 
 or with the value of the goods or other valuable thing represented, 
 mentioned or referred to in or by the security. 
 
 Sect. 1 — Valuable Security, what.'] — Ante, p. 302. 
 
 Id. — Document of Title of Goods, what.] — The term " document of 
 title to goods" shall include any bill of lading, India warrant, dock 
 
Lairemy. 371 
 
 warrant, warehouse keeper's certificate, warrant or order for the 
 delivery or transfer of any goods or valuable thing, bought and sold 
 note, or any other document used in the ordinal^ course of business 
 as proof of the possession or control of goods, or authorizing or pur- 
 porting to authorize, either by indorsement or by delivery; the 
 possessor of such document to transfer or receive any goods thereby 
 represented or therein mentioned or referred to. 
 
 I'ndictmmt. 
 
 Ommenoement as ante, p. 313]— a certain valuable security, other 
 than a document of title to lands, to wit, one bill of exchange for the 
 payment of ten pounds, the property of J. N., the said sum of ten 
 pounds secured and payable by and upon the said bill of exchange 
 being then due and unsatisfied to the said J. N., feloniously did steal, 
 takeand carry away ; against the form [as ante, p. 347]. As to the 
 description of the hill or other security, see ante, pp. 55, 66. As the 
 'HA&lb Vict. c. 96, s. 27, limits the term " valuable security" to secu- 
 rities " other than a document of title to lands" it is material, in an 
 indictment under it, to describe tlie security so as to show that it is 
 within the section. B. v. Lowrie, L. R., 1 C. C. R. 61; 36 L. J. 
 (M. C.) 24. An indictment for stealing a bank-note did not conclude 
 contra form am statuti, and upon that ground was held by the judges to 
 be bad. R. v. Pearson, 1 Mood. C. C. 313; b C. & P. 121; see, how- 
 ever, ante, p.&l. If the instrument be for any reason void in law, the 
 defendant may be convicted on a count charging him with stealing a 
 piece of paper. R. v. Perry, 1 Den. 69 ; \ C. & K. 725. 
 
 Felony of the same nature, and in the same degree, and punisliable in, 
 the same manner, as if the defendant had stolen any chattel of like value 
 with the share, interest, or deposit to which the security stolen may relate, 
 or with the money due on the security so stolen, or secured thereby and 
 remaining unsatisfied, or with the value of the goods or other valuable 
 thing represented, mentioned, or referred to in or by the security. 24 d' 
 25 Vict. c. 96, s. 27. 
 
 Evidence. 
 
 Prove a larceny of the bill, etc., as directed ante, p. 314, et seq. 
 The defendant, a stock-broker, received from the prosecutor a cheque 
 upon his banker, to purchase Exchequer bills for him; the defendant 
 cashed the cheque and absconded with the money. Upon an indict- 
 ment for stealing the cheque and the proceeds of it, it was holden to 
 be no larceny, although the jury found, that, before he received the 
 cheque, the defendant had formed the intention of converting the 
 money to his own use; not of the cheque, because the defendant 
 had used no fraud or contrivance to induce the prosecutor to give it 
 to him ; and because being the prosecutor's own cheque, and of no 
 value in his hands, it could not be called his goods and chattels: nor 
 of the proceeds of the cheque, because the prosecutor never had 
 possession of them, except by the hands of the defendant. R. v. 
 Walsh, R. & R. 215. But where the prosecutors gave to the defendant, 
 who was occasionally employed as their clerk, a cheque payable to a 
 creditor, to be delivered by hira to the creditor, and he appropriated 
 it to his own use, it was holden by the judges to be a larceny of the 
 cheque. R. v. Metcalf 1 Mood. C. C. 433: R. v. Heath, 2 Mood. 
 C C do. 
 
 The bill or other security must be of the description specified in 
 
372 Larceny. 
 
 the statute. R. v. Lowrie, ante, p. 371. Thus, an indictment (upon 
 the repealed statute 2 G. 2, c. 25, s. 3, which applied to bank-notes, 
 bills of exchange, etc., bills, or promissory notes, etc.) for stealing 
 a certain note, commonly called a bank-note, was holden insufficient. 
 
 B. V. Craven, R. & R. 14. And the same where the indictment 
 described the instrument stolen as a "bank post bill," for that 
 statute did not comprehend instruments of that description. R. v. 
 Chard, Id. 488. So, where the defendant was indicted for stealing 
 pertain bills, commonly called Exchequer bills, and it appeared in 
 evidence that the person who signed them on the part of the 
 Grovernment was not legally authorized to do so, it was holden 
 that they were not good Exchequer bills, and the defendant was 
 acquitted. jB. v. Astlett, 2 Leach, 954. In R. v. Phipoe, 2 Leach, 
 673, where the prosecutor was compelled by duress to sign a pro- 
 missory note, which had been previously prepared by the defendant, 
 who produced it, and withdrew it again as soon as it was signed, a 
 great difference of opinion existed among the judges; but the ma- 
 jority thought that it was not a case within the statute 2 G. 2, c. 25, 
 s. 3, because the instrument was of no value to the prosecutor, who 
 had not even a property in or possession of the paper upon which it 
 was written. And see R. v. Edwards, Q C. (& P. 515, 521, and R. v. 
 Smith, 2 Den. 449; 21 L. J. (M. C.) 111. Such cases, however, as 
 R. V. Phipoe, and R. v. Edwards, are now provided for by 24 & 25 
 Vict. c. 96, s. 48, post. Where, in consequence of an advertise- 
 ment, A. applied to B. to raise money for him, who promised to 
 procm-e 5,000Z., and produced ten blank 6s. stamps, across which A. 
 wrote an acceptance, and B. took them up without saying anything, 
 and afterwards filled up the stamps as bills for 500Z. each, and put 
 them into circulation, it was holden by Littledale, J., Bolland, B., 
 and BosaTiquet, J., that the stamps so filled up were not bills of 
 exchange, orders for the payment of money, or securities for money, 
 within the meaning of the statute ; and that, as the prosecutor never 
 had any possession of the papers, so as to enable him to maintain 
 trespass for them, there was no taking of them such as to constitntc 
 larceny. R. v. Minter Hart, 6 C. & P. 106. Where country bank- 
 notes, paid by the agent in London, were sent by him to the bankers 
 in the country to be re-issued, and were stolen by the defendant, 
 who was indicted for stealing the notes, and also for steaHng the 
 paper and stamps, this was held to be a larceny of the paper and 
 stamps ; but the judges seem to have been of opinion that the notes 
 were not within the stat. 2 G. 2, c. 25, s. 3, because it could not be 
 said that the raone}' secured thereby was due and unsatisfied. E. v. 
 Clark, R.(&R. -181; 2 Leach, 1036. See R. v. Perry, 1 Den. 69 ; 1 
 
 C. & K. Tib, ante, p. 371. So, where the defendant was indicted for 
 receiving certain pieces of stamped paper, the goods and chattels of 
 the prosecutor, and it appeared that the notes had been paid in 
 London, and were in the possession of a partner of the iirm, who was 
 taking them to the country to be re-issued, when they were stolen, 
 it was holden that they were properly described in the indictment 
 as goods and chattels ; but some of the judges doubted whether they 
 were valuable securities within the meaning of the stat. 7 cfe 8 (?. 4, 
 c. 29, s. 5. R. V. Vyse, 1 Mood. C. C. 218. Documents which pur- 
 ported to be certificates entitling the holder to shares, and to receive 
 dividends in a foreign railway company, and which passed by de- 
 livery like bank-notes and were treated and dealt with on the Lon- 
 don stock exchange as railway shares, were holden to be valuable 
 
Larceny. 373 
 
 securities within that statute. R. v. Smith, Dears. 661 ; 25 L. J. 
 (M C ) 31. The halves of notes, if stolen, may. be described as 
 goods and chattels. R. v. Mead, 4 C. & P. 535. It would seem, 
 however that they may also be described as parts of a valuable 
 security, see 24 & 25 Vict. c. 96, s. 27, ante, p. 370. Where upon an 
 indictment on the repealed stat. 7 G. 3, c. 50, s. 1, which made it 
 felony fur persons employed in the post-office to secrete any letter, 
 etc., containing any note, etc., it appeared that the note had been 
 paid to tlie holder, and had not been re-issued, the judges were of 
 opinion that such notes retained the character, and fell within the 
 description of promissory notes, and were, as promissory notes, 
 valuable to the owners of them. R. v. Ramon, R. & R. 232 ; 2 Leach, 
 1090, 1093. A cheque on a banker, written on unstamped paper, 
 payable to D. F. J., and not made payable to bearer, was holden not 
 to be a valuable security within the meaning of the statute. R.y. 
 Yates, 1 Mood. C. C. 170. A cheque on a banker may be described as 
 " a valuable security, to wit, a cheque of the value of," etc., without 
 stating the drawee'to be a banker. R. v. Heath, 2 Mood. C. C. 33. 
 It is not necessary that a bill should be indorsed by the payee at 
 the time it is stolen, so as to be in a negotiable state. Anon., 2 East, 
 P. C. 598 : see R. v. Pooley, R. & R. 12. The money orders issued by 
 the post-office are warrants and orders for the payment of money 
 within the statute ; and it is no objection that they are unstamped, 
 the practice of issuing them without a stamp having existed before, 
 and been legalized by the stat. 3 c6 4 Vict. c. 96. R. v. Gilchrist, 
 2 Mood. C. (J. 233 ; C. & Mar. 224. A pawnbroker's duplicate was 
 held to be a warrant for the delivery of goods, within the repealed 
 statute 7 * 8 (r. 4, c. 29, s. 5. R. v. Morrison, Sell, 158 ; 28 L. J. 
 (_M. C.) 210. 
 
 The evidence must correspond with the description of the instru- 
 ment in the indictment. R. v. Lowrie, ante, p. 371. Wbere an in- 
 dictment for stealing a bank-note alleged it to be signed by J. B., for 
 the Governor and Company of the BaiftK^of England, and no evidence 
 was given of the signature of J. B., the judges held that the defendant 
 should have been acquitted. R. v. Craven, R. & R. 14. But where 
 the defendant was indicted in the county of Gloucester for stealing 
 a bill of exchange, whereon were indorsed the names of A. B. and 
 C. D., and when it was negotiated by the defendant in that county, 
 the name of a third indorser was added, the judges held that the 
 addition of the third name made no difference, the names of the two 
 indorsers only being on the bill at the time it was stolen from the 
 prosecutor at Manchester. R. v. Austin, 2 East, P. C. 602. By stat. 
 1 G. 4, c. 92, s. 3, the Bank of England may impress upon their notes, 
 by machinery, the names of their signing clerks ; and notes so im- 
 pressed are to be deemed and taken to be, and may be described in 
 indictinents as, bank-notes, in the same manner as if they had been 
 subscribed in the handwriting of the signing clerks. 
 
 STEALING, ETC., LETTEES, ETC. 
 
 Statutes. 
 T W. i <& 1 Vict. c. 36, s. 25 — Opening or delaying Letters.'] — 
 Every person employed by or under the post-office, who shall con- 
 
374 Larceny. 
 
 trary to his duty open, or procure or suffer to be opened, a post- 
 letter, or who shall wilfully detain or delay, or procure or suffer to 
 be detained or delayed, a post-letter, shall be guilty of misdemeanor 
 and, being convicted thereof, shall suffer such punishment by fine or 
 imprisonment, or by both, as to the court shall seem meet: Provided 
 always, that nothing herein contained shall extend to the opening 
 or detaining or delayiag of a post-letter returned for want of a true 
 direction, or of a post-letter returned by reason that the person to 
 whom the same shall be directed is dead or cannot be found, or shall 
 have refused the same, or shall have refused or neglected to pay the 
 postage thereof; nor to the opening or detaining or delaying of a 
 post-letter in obedience to an express warrant in writing under tlie 
 hand of one of the principal secretai'ies of state. 
 
 Seci. 26 — Stealing or embezzling Letters.'] — Every person employed 
 under the post-oflSee, who shall steal, or shall for any purpose what- 
 ever embezzle, secrete, or destroy a post-letter, shall be guilty of 
 felony, and shall, at the discretion of the court, either be transported 
 beyond the seas for the term of seven years, or be imprisoned for 
 any term not exceeding three years : and if any such post-letters so 
 stolen or embezzled, secreted or destroyed, shall contain therein any 
 chattel or money whatsoever, or any valuable security, every such 
 offender shall be transported beyond the seas for life. 
 
 Sect. 27 — Stealing Money, eta. out of Letters^ — Eveiy person who 
 shall steal from or out of a post-letter any chattel, money, or valuable 
 security, shall be guilty of felony, and shall be transported beyond 
 the seas for life. 
 
 Sect. 28 — Stealing Letters sent hy the Mail.l — Every person who 
 shall steal a post letter-bag, or a post-letter fi-om a post letter-bag, 
 or shall steal a post-letter from a post-ofiice, or from any officer of 
 the post-office, or from a mail, or shall stop a mail with intent to rob 
 or search the same, shall be guilty of felony, and shall be transported 
 beyond the seas for life. 
 
 Sect. 29 — Stealing, etc. Letters sent by a Post-office PacTcet.]— 
 Every person who shall steal, or unlawfully take away a post letter- 
 bag sent by a post-office packet, or shall steal or unlawfully take a 
 letter out of any such bag, or shall unlawfully open any such bag, 
 shall be guilty of felony, and shall be transporte'd beyond the seas 
 for any term not exceeding fom-teen years. 
 
 Sect. 31 — Fraudulently retaining Letters after Delivery, etc.l — Re- 
 cites, that post-letters are sometimes by mistake delivered to the tvrong 
 person; and post-letters and post letter-bags are lost in the course of 
 conveyance or delivery thereof, and are detained by the finder in eoifee- 
 tation of gain or reward, and enacts, that every person who shall 
 fraudulently retain, or shall wilfully secrete, or keep, or detain, or 
 being required to deliver up by any officer of the post-office, shall 
 neglect or refuse to deliver up, a post-letter which ought to have 
 been delivered to any other person, or a post letter-bag or post-letter 
 which shall have been sent, whether the same shall have been found 
 by the person secreting, keeping or detaining or neglecting or re- 
 fusing to deliver up the same, or by any other person, shall be guilty 
 of a misdemeanor, and, being convicted thereof, shall be liable to be 
 punished by fine and imprisonment. 
 
Larceny. 375 
 
 Sect. SQ^Sieallrig printed Votes, Newspapers, eic.]— Every person 
 employed in the post-office who shall steal, or shall for any purpose 
 embezzle, secrete or destroy, or shaU wilfully detain, or delay m 
 course of conveyance or delivery thereof by the post, any printed 
 votes or proceedings in Parliament, or any printed newspaper, or 
 any other printed paper whatever sent by the post, without covers 
 or in covers open at the sides, shall be guUty of a misdemeanor, 
 and, being convicted thereof, shall suffer such punishment by fine or 
 imprisonment, or both, as to the court shall seem meet. 
 
 Sect. 3&— Endeavouring to procure the Commission of such Offences.] 
 —Every person who shall solicit or endeavour to procure any other 
 person to commit a felony or misdemeanor punishable by the post- 
 .office acts, shall be guilty of a misdemeanor: and, being thereof 
 convicted, shall be liable, at the discretion of the coui-t, to be impri- 
 soned for any term not exceeding two years. 
 
 Sect. 37— Fen«e.]— The offence of every offender against the post- 
 office acts may be dealt with, and indicted and tried, and punished, 
 and laid and charged to have been committed, either in the county 
 or place where the offence shall be committed, or in any county or 
 place in which he shall be apprehended or be in custody, as if his 
 offence had been actually committed in that county or place ; and 
 where an offence shall be committed in or upon, or in respect of a 
 mail, or upon a person engaged in the conveyance or delivery of a 
 post letter-bag, or post-letter, or in respect of a post letter-bag, or 
 post-letter, or a chattel, or money, or valuable security sent by the 
 post, such offence may be dealt with and inquired of, and tried and 
 punished, and laid and charged to have been committed, as well in 
 any county or place in which the offender shall be apprehended or 
 be in custody, as also in any county or place through any part 
 whereof the mail, or the person, or the post letter-bag, or the post- 
 letter, or the chattel, or the money, or the valuable security sent by 
 the post, in respect of which the offence shall have been committed, 
 shall have passed in due course of conveyance or delivery by the 
 post, in the same manner as if it had been actually committed in 
 such county or place : and in all cases where the side or the centre, 
 or other part of a highway, or the side, the bank, the centre, or other 
 part of a river, or canal, or navigation, shall constitute the boundary 
 of two counties, such offence may be dealt with and inquired of, and 
 tried and punished, and laid and charged to have been committed, 
 in either of the said counties through which or adjoining to which, 
 or by the boundary of any part of which, the mail or person shall 
 have passed in due course of conveyance or delivery by the post, in 
 the same manner as if it had actually been committed in such county 
 or place: and every accessory before or after the fact to any such 
 offence, if the same be a felony, and every person aiding or abetting, 
 or counselling or procuring the commission of any such offence, if 
 the same be a misdemeanor, may be dealt with, indicted, tried, and 
 punished, as if he were a principal, and his offence laid and charged 
 to have been committed in any county or place in which the principal 
 offender may be tried. 
 
 Sect. 4:0— Property, how laid.'] — In every case where an offence 
 shall be committed in respect of a post letter-bag or a post-letter, or 
 a chattel, money, or a valuable security sent by the post, it shall be 
 
■376 Larceny. 
 
 lawful to lay, in the indictment to be preferred against the ofiFender, 
 the property of the post letter-bag or of the post-letter, or chattel, 
 or money, or the valuable security sent by the post, in the post- 
 master-general ; and it shall not be necessary in the indictment to 
 allege or to prove upon the trial or otherwise, that the post letter- 
 bag, or any such post-letter, or valuable security, was of any value ; 
 and in any indictment to be preferred against any person employed 
 under the post-office for any offence committed against the post-office 
 acts, it shall be lawful to state and allege that such offender was 
 employed under the post-office of the United Kingdom at the time 
 of the committing of such offence, without stating fm-ther the nature 
 or particulars of his emplo3'ment. 
 
 Sect. 41 — Punishment.'] — Every person convicted of any offence 
 for which the punishment of transportation for life is herein awarded,' 
 shall be liable to be transported beyond the seas for life, or for any 
 term not less than seven years ; or to be imprisoned for any term 
 not exceeding four years : and every person convicted of any offence 
 punishable according to the post-oifice acts by transportation for 
 fom-teen years, shall be liable to be transported for any term not ex- 
 ceeding fom"teen years nor less than seven years, or to be imprisoned 
 for any term not exceeding three years. 
 
 20 c6 21 Vict. c. 3, s. 2.] —Ante, p. 172. 
 
 27 & 28 Vict. c. 47, s. i.'j—Ante, p. 173. 
 
 7 TF. 4 c6 1 Vict. c. 36, s. 42 — Sard Labour and Solitary Oon- 
 finement.'] — Where any person shall be convicted of an offence punish- 
 able under the post-office acts, for which imprisonment may be 
 awarded, the court may sentence the offender to be imprisoned, with 
 or without hard labour, in the common gaol or house of correction, 
 and may also direct that he shall be kept in solitary confinement for 
 the whole or any portion of such imprisonment, as to the court shall 
 seem meet. {But see T W. i d; 1 Vict. c. 90, s. 5, which limits the 
 extent of solitary confinement (in all eases not otherwise provided 
 for) to " one month at any one time, and three months in any one 
 year"). 
 
 Sect. 47 — Interpretcition of Terms^ — The following terms and 
 expressions {amongst others) shall have the several interpretations 
 hereinafter respectively set forth, unless such interpretations are 
 repugnant to the subject, or inconsistent with the context of the 
 provisions in which they may be found : {that is to say), the term 
 "letter" shall include packet, and the term "packet" shall include 
 letter; and the expression " Lords of the Treasury" shall mean the 
 Lord High Treasurer of the United Kingdom of Great Britain, and 
 Ireland, or the Lords Commissioners of her Majesty's Treasury of 
 the United Kingdom of Cheat Britain and Ireland, or any three or 
 more of them; and the term " mail" shall include every conveyance 
 by which post-letters are carried, whether it be a coach, or cart, or 
 horse, or any other conveyance; and also a person employed in con- 
 veying or delivering post-letters, and also every vessel which is 
 included in the term "packet-boat;" and the term "mail-bag" shall 
 mean a mail of letters, or a box, or a parcel, or any other envelope 
 in which post-letters are conveyed, whether it does or does not eon- 
 
Larceny. 377 
 
 tain post-letters; and the term "master of a vessel" shall include 
 any person in cliarge of a vessel, whether commander mate, or other 
 person, and whether the vessel he a ship of war, or other vessel; and 
 the expression "officer of the post office" shall mclude the post- 
 master-general and every deputy-postmaster, agent, officer, clerk 
 letter-carrier, guard, post-boy, rider, or any other person employed 
 in any business of the post-office, whether employed by the post- 
 master-general, or by any person under him, or on behalf of the post- 
 office- and the term " packet letter" shall mean a letter transmitted 
 by a packet-boat; and the expression " persons employed by or under 
 the post-office" shall include every person employed in any business 
 of the post-office, according to the interpretation given to " officer 
 of the post-office:" and the terms "packet-boats" and "post-office 
 packets" shall include vessels employed by or under the post-office 
 or the admiralty, for the transmission of post-letters, and also ships 
 or vessels (though not regularly employed as packet-boats) for the 
 conveyance of post-letters under contract, and also a ship of war or 
 other vessel in the service of her Majesty, in respect of letters con- 
 veyed by it: and the term "postage" shall mean the duty chargeable 
 for the transmission of post-letters; and the term "post-town" shall 
 mean a town where a post-office is established (not being a penny 
 or two-penny, or convention post-office) and the term " post letter- 
 bag" shall include a mail-bag or box, or packet or parcel, or other 
 envelope or covering in which post-letters are conveyed, whether it 
 does or does not contain post-letters; and the term "post-letter" 
 shall mean any letter or packet transmitted by the post, under the 
 authority of the postmaster-general ; [see also 32 & 33 Vict. c. 73, 
 s. 23, post, p. 378, as to telegrams]; and a letter shall be deemed a 
 post-letter from the time of its being delivered to apost-office, to the 
 time of its being delivered to the person to whom it is addressed ; 
 and the delivery to a letter-carrier, or other person authorized to re- 
 ceive letters for the post, shall be a delivery to the post-office; and a 
 delivery at the house or office of the person to whom the letter is 
 addressed, or to him, or to his servant or agent, or other person con- 
 sidered to be authorized to receive the letter, according to the usual 
 manner of delivering that person's letters, sball be a deliveiy to the 
 person addressed; and the term " post-office" shall mean any house, 
 building, room, or place where post-letters are received or delivered, 
 or in which they are sorted, made up, or despatched; and the term 
 "postmaster-general" shall mean any person or body of persons 
 executing the office of postmaster-general for the time being, having 
 been duly appointed to the office by her Majesty; and the terms 
 " post-office acts" and " post-office laws," shall mean all acts relating 
 to the management of the post, or to the establishment of the post- 
 office, or to postage duties, from time to time in force [see also 32 & 
 33 Vict. c. 73, s. 24, ^osi, p. 379, as to the Telegraph Acts']; and the 
 term "United Kingdom" shall mean the United Kingdom of Great 
 Britain undi Ireland ; and the term "valuable security" shall include 
 the whole or any part of any tally, order, or other security whatso- 
 ever, entitling or evidencing the title of any person or body corporate 
 to any sliare or interest in any public stock or fund, whether of this 
 kingdom, or of Great Britain or of Ireland, or of any foreign state, 
 or in any fund of any body corporate, company or society, or to any 
 deposit in any savings-bank, or the whole or any part of any deben- 
 ture, deed, bond, bill, note, warrant, or order, or other security what- 
 soever for money, or for payment of money, whether of this kingdom 
 
378 Larceny. 
 
 or of any foreign state, or of any warrant or order for the delivery or 
 transfer of any goods or valuable thing : and every officer men- 
 tioned shall mean the person for the time being executing the func- 
 tions of that officer ; and whenever in this act, or the schedules 
 thereto, with reference to any person, or matter, or thing, or to any 
 persons, matters, or things, the singular or plural number, or the 
 masculine gender only is expressed, such expression shall be under- 
 stood to include several persons, or matters, or things, as well as one 
 person, or matter, or thing, and one person, matter, or thing, as well 
 as several persons, or matters, or things, females as well as males, 
 bodies politic or corporate as well as individuals, unless it be other- 
 wise specially provided, or the subject or context be repugnant to 
 such construction. 
 
 31 & 32 Vict. c. 110 {The Telegraph Act, 1868), s. 20— Officials of 
 post-office disclosing or intercepting telegraphic messages!] — Any person 
 having official duties connected with the post-office, or acting on 
 behalf of the postmaster-general, who shall, contrary to his duty, 
 disclose or in any way make known or intercept the contents, or any 
 part of the contents, of any telegraphic messages, or any message 
 entrusted to the postraastex'-general for the purpose of transmission, 
 shall, in England and in Ireland, be guilty of a misdemeanor, and 
 shall upon conviction be subject to imprisonment for a term not ex- 
 ceeding twelve calendar months; and the postmaster-general shall 
 make regulations to carry out the intentions of this section, and to 
 prevent the improper use by any person in his employment or acting 
 on his behalf of any knowledge he may acquire of the contents of 
 any telegraphic message. 
 
 Sect. 21 — Property in telegraphic messages, Tiavj laid—Pwm of in- 
 dictment.'] — In eveiy case where an offence shall be committed in 
 respect of a telegraphic message sent by or entrusted to the post- 
 master-general, it shall be lawful and sufficient, in the indictment to 
 be preferred against the offender, to lay the property of such tele- 
 graphic message in her Majesty's postmaster-general, without speci- 
 fying any further or other name, addition, or description whatsoever, 
 and it shall not be necessary in the indictment to allege or to prove 
 upon the trial or otherwise that the telegraphic message was of any 
 value; and in any indictment to be preferred. against any person era- 
 ployed under the post-office, for any offence committed under this 
 act, it shall be lawful and sufficient to state and allege that such 
 offender was employed under the post-office at the time of the com- 
 mitting of such offence, without stating further the natm-e or parti- 
 culars of his employment. 
 
 32 & 33 Vict. c. 73 {The Telegraph Act, 1869), s. 23— Telegraphic 
 messages to he deemed post- letters.] — -Every written or printed message 
 or commimicatioh delivered at a post-office for the purpose of being 
 transmitted by a postal telegraph, and every transcript thereof made 
 by any person acting in pursuance of the orders of the postmaster- 
 general, shall be a post-letter within the meaning of an act passed 
 in the first year of the reign of her present Majesty, chapter thirty- 
 six: Provided always, that nothing in this act contained shall have 
 the effect of relieving any officer of the post-office from any liability 
 which would, but for the passing of this act, have attached to a tele- 
 graph company, or to any other company or person, to produce in 
 
Larceny. 379 
 
 any court of law, when duly required so to do, any such written or 
 printed message or commumoation. 
 
 Sect 24^Telegraph Acts to le Post-office Acts.']— The Telegraph 
 Act, 1868, and this act shall be "Post-office Acts," and the provi- 
 sions contained therein respectively shall be " Post-office Jaws 
 within the meaning of the said act passed in the first year ot the 
 reign of her present Majesty, chapter thirty-six. 
 
 Indictment against an Officer of the Post-office for opcii'uuj or 
 delaying Letters. 
 
 Central Criminal Court, to wit:— The jurors for our lady the Queen 
 upon their oath present, that J. S., on the first day of June, in the 
 
 year of our Lord , being then a person employed by and under 
 
 the post-office of the United Kingdom, did unlawfully and contraiy 
 to his duty open Q'open or procure or suffer to he opened'^) [or unlaw- 
 fully and wilfully detain (" detain or delay, or procure or suffer to he 
 detained or delayed")] a post-letter, the property of the postmaster- 
 general; against the form las ante, p. 347]. The property may he 
 laid in the ^'postmaster-general," and it is not necessary to allege or 
 prove any value, or to state the nature of the defendant's employment. 
 IW.ic&l Vict. c. 36, s. 40. It does not seem to he necessary to negative 
 the exceptions contained in the proviso, for the proviso is distinct and the 
 prohibition general. (See ante, p. 62.) As to the venue, see ante, p. 25, 
 and! W.idl Vict. c. 36, s. 37, ante, p. 375. 
 
 Misdemeanor : fine, or imprisonment, with or without hard labour, 
 and lOith or without solitary confinement, 1 W. 4: <& 1 Vict. c. 36, s. 42, 
 such confinement not exceeding one month at any one time, nor three 
 months in any one year, 1 W.i<& l Vict. c. 90, s. 6, or both. 7 W. 4 tfi 
 IFici.c. 36,8.25. 
 
 Evidence. 
 
 Prove that the defendant was at the time of the commission of the 
 offence a person employed by or under the post-office of the United 
 Kingdom. For this purpose evidence of his acting as such is suffi- 
 cient, without proving his appointment. S. v. Evan Pees, 6 C. <£ P. 
 606. See B. v. Toumsend, C. & Mar. 178. Where the defendant, a 
 letter-carrier from C. to T., had brought the C. letter-bag, and safely 
 delivered it to tlie postmaster at T., whose duty it was to sort the 
 letters in time to make up the bags for the mails, the defendant's 
 duty as a letter-carrier being complete by the delivery of the letters 
 to the postmaster; but the defendant was afterwards requested by 
 the postmaster to assist him in the 'sorting, and consented to do so, 
 and in the course of doing so stole a letter; it was held that while 
 so engaged in sorting the letters he was a person employed under 
 the post-office, within the statute. R. v. Reason, Dears. 226; 23 L. J. 
 {M. C.) 11. See R. v. Glass, 2 C. <& K. 396. Then prove that the 
 defendant opened the letter, or delayed it, according to the allegation 
 in the indictment. The - defendant may prove, in answer to the 
 charge, any of the circumstances specified in the proviso, and which 
 would authorize him to open or detain the letter. 
 
380 Larceny. 
 
 Indictment against an Officer of the Post-office for stealing or 
 embezzling Letters. 
 
 Commencement as in the last precedent] — feloniously did steal, take, 
 and carry away [or, feloniously did embezzle (" embezzle, secrete, or 
 destroy")] one post-letter, the property of the postmaster- general, 
 containing therein one bill of exchange (" any chattel, or money, or 
 valuable security") for the payment of ten pounds,* the property of 
 the postmaster-general; against the form [as ante, p. 347]. 
 
 * This allegation may be omitted, if the letter did not contain any 
 chattel, money, or valuable security. The property may be laid in the 
 ^^postmaster-general," and it is not necessary to allege or prove any 
 value, or to state the nature of the defendants employment. 7 W.i(&l 
 Vict. c. 36, s. 40. As to the venue, see ante, p. 25; and 7 W.i <6 I 
 Vict. c. 36, s. 37, ante, p. 375. An indictment for stealing and em- 
 bezzling votes, newspapers, etc.. Id. s. 32, may easily be framed from 
 the above precedent. A count for embezzling or secreting letters need 
 not aver any purpose or intent. R. v. Wynn, 1 Den. 365; 1C.&K. 859; 
 \%L.J.{M.C.)h\. 
 
 Felony : if the letter contain any chattel, money, or valuable security, 
 penal servitude for life or for not less than five [27 <ft 28 Vict. c. 47, s. 2, 
 ante, p. 173] years, or imprisonment not exceeding four years, 1 W.i 
 & 1 Vict c. 36, ss. 26, 41; 20 & 21 Vict c. 3, s. 2 {ante, p. 172), with 
 or without hard labour, and with or without solitary confinement, 7 W. 
 4 (fe 1 Vict. c. 36, s. 42, such confinement not exceeding one month at 
 any one time, nor three months in any one year. 7 TF. 4 c6 1 Vict c. 90, 
 «. 5. This offence is not triable at quarter sessions. 5 cfc 6 Vict c. 38, 
 s. 1 (ante, p. 104). 
 
 If the letter do not contain any chattel, money, or valuable securHy, 
 penal servitude for not more than seven nor less than five [27 (& 28 Vict 
 c. 47, s. 2, ante, p. 173] years, or imprisonment not exceeding three 
 years, T W.i&l Vict c. 36, s. 26; 20 & 21 Vict c. 3, s. 2 {anU, 
 p. 172), with or without hard labour, and with or without solitary con- 
 finement, 7 W. 4: (& 1 Vict c. 36, s. 42, such confinement not exceeding 
 one month at any one time, nor three months in any one year. 7 W.i 
 <& 1 Vict c. 90, s. 5. 
 
 Evidence. 
 
 Prove that the defendant was at the time he committed the offence 
 employed under the post-office. See R. v. Evan Rees, 6 C.&P. 606; 
 R. V. Reason, Dears. 226; 23 L. J. {M. C.) 11; ante, p. 379. Then 
 prove that he stole the letter, with its contents (see ante, p. 314, et 
 seq.); or that he embezzled, secreted, or destroyed it. It is not ne- 
 cessary to prove that the letter or valuable security was of any value. 
 Any letter posted in the ordinary way, whatever be its address or 
 object, is a post-letter within the statute; R. v. Young, 1 Den. 194; 2 
 G. <& K. 466 ; therefore, where a fictitious letter is sent, with money 
 in it, to try the honesty of the defendant, the stealing of it is within 
 the statute. Id.; overruling R. v. Gardner, 1 C. & K. 628. But 
 the secreting, by a letter-carrier, of a letter written by an inspector 
 of the post-office, for the purpose of trying the defendant's honesty, 
 was held not to be a stealing of a post-letter within the statute; it 
 was held, however, that he might be convicted of simple larceny, 
 in stealing a sovereign inclosed by the inspector in sucli letter, the 
 sovereign being one of those which are occasionally found on the 
 
Larceny. 381 
 
 floor of the post-office, having dropped out of letters, and which are 
 carried to a fund which is under the direction of the postmaster- 
 general ; and that such sovereign might be described as the propei-ty 
 6f the postmaster-general. R. v. Rathhone, 2 Mood. C. C. 242; C. & 
 Mar. 220. So where, suspicions being entertained against the de- 
 fendant, who was a sub-sorter in the General Post-office, the autho- 
 rities there made up a letter, and enclosed coin in it, and put upon it 
 the usual postage stamp; and an inspector delivered it in, at the 
 window in the outer hall, to another inspector, who handed it to a 
 third, who, after locking it up for the night, handed it to a sorter, 
 who placed it amongst the letters which it was the prisoner's duty to 
 sort, and the prisoner stole the letter and the money;— the ordinary 
 course of posting a letter at the outer hall of the General Post-office 
 being by placing it in the receiving-box: it was held that the prisoner 
 was not rightly convicted of stealing a post-letter containing money, 
 and that the conviction must be confined to the count for simple lar- 
 ceny. R. v. Shepherd, Dears. 606; 25 L. J. (M. C.) 52. Where a 
 servant who was sent with a letter and a penny to pay the postage, 
 finding the door of the receiving-house shut, put the penny inside 
 the letter, fastened it by means of a pin, and then put the letter in 
 the unpaid letter-box: it was held that a messenger in the post-office, 
 who stole this letter with the penny in it, might be convicted of 
 stealing a post-letter containing money, though the money was not 
 put in for the purpose of being conveyed by post to the person to 
 whom the letter was addressed. R. v. Mmce, C. <& Mar. 234. But 
 where, the post-office being at an inn, the person sent to put a letter, 
 containing bank-notes, into the post, took it to the inn, with money 
 to prepay the postage, and laid the letter and the money on it, upon 
 a table in the lobby of the inn, in which the letter-box was, and 
 pointed out the letter to the female servant at the inn (not authorized 
 to receive letters), who said "she would give it to them;" and she 
 stole the letter and its contents; it was held that this was not a post- 
 letter, within the 27th or 28th section of (he statute, and that the de- 
 fendant could be convicted only of larceny. R. v. llarley, IC.&K. 
 89. An unsealed letter, delivered by the postmistress at G. to the 
 defendant, the letter-carrier between that place and L., with directions 
 to obtain at the post-office at L. a money order for one pound, and 
 after enclosing it in the letter, to post the letter at L., was held to 
 be, while in the defendant's hands, a post-letter, and the defendant 
 to be a person employed under the post-office, so as tliat he might 
 be convicted under this section. R. v. Bicherstaff, 2 C. & K. 761. 
 Where the defendant, a person employed in the post-office, having 
 committed a mistake in the sorting of the letters, put some post- 
 letters down a water-closet, in prder to avoid the supposed penalty 
 attached to such mistake, this was held to be not only a secreting, 
 but a larcmy of the letters. R. v. Wynn, 1 Den. 365; 2 C. & K. 859; 
 18 L. J. {M. C.) 51. It was the duty of a letter-carrier, on return- 
 ing from his round, to bring back to the post-office any letters which 
 he had failed to deliver. A letter containing money having been 
 given to him with other letters to deliver; on his return from his 
 round, he brought back to the office the pouch, containing some 
 letters which he had failed to deliver, but said nothing about the 
 money letter. ^Subsequently, on inquiry being made of him, he 
 produced the money letter from his pocket; upon these facts it was 
 held tliat he was rightly convicted of stealing the letter. R. v 
 Poynton, L. <& C. 247; 32 L. J. {M. C.) 29. 
 
382 Larceny. 
 
 Indictment for niealing Money, etc., out of Letters: 
 
 Commencement as ante, p. 313] — one bill of exchange for the pay- 
 ment of ten pounds (" any chattel, money or valuable security"), the 
 property of the postmaster-general, from and out of a post-letter 
 feloniously did steal, take and carry away; against the form [as ante, 
 p. 347]. The property may be laid in the " postmaster-general," and it 
 is not necessary to allege or prove the security to be of any value. 
 7 W. i <& 1 Vict. c. 36, s. 40. As to the venue, see ante, p. 25, and 
 7 W.i&l Vict. c. 36, s. 37, ante, p. 375. 
 
 Felony : penal servitude for life or for not less than five [27 & 28 
 Vict. c. 47, s. 2, ante,2).nS] years, or imprisonment not exceeding four 
 years, 7 W. i S I Vict. c. 36, «s.27, 41; 20 t£ 21 Vict. c. 3, s. 2 (ante, 
 p. 172), with or without hard labour, and with or loithout solitary con- 
 finement, 7 W. i <& 1 Vict. 0. 36, s. 42, such confinement not exceeding 
 one month at any one time, nor three months in any one year. 7 W.\ 
 & 1 Vict. c. 90, s. 5. 
 
 This offence is not triable at quarter sessions, 5 <£ 6 Vict. c. 38, s. 1 
 {ante, p. 104). 
 
 Evidence. 
 
 Prove a larceny of the chattel, money, or valuable security out of 
 the letter, either directly or by circumstances from which it may be 
 inferred. The mere larceny of money, etc. from a letter will not 
 suffice to bring the case witliin this statute, for a post-letter means 
 a letter or paclcet transmitted by the post, and it is only a post-letter 
 from the time of its being delivered to a post-office to the time of its 
 being delivered to the person to whom it is addressed. See B. v. 
 Rathbone, ante, p. 381 : R. v. Young, ante, p. 380. A delivery to a 
 letter-carrier, or other person authorized to receive letters for the 
 post, is a delivery to the post-office; and a delivery at the house or 
 office of the person to whom the letter is addressed, or to him, or 
 his servant or agent, or other person considered to be authorized 
 to receive the letter according to the usual manner of delivering 
 that person's letters, is a delivery to the person addressed. 7 W.t 
 & 1 Vict. c. 36, s. 47. The words of the statute are " eveiy person," 
 which include those employed by the post-office as well as others; 
 for although it was once doubted, R. v. Scutt, 1 Leach, 106; 2 Leach, 
 904: R. V. Pooley, R. & R. 31, whether persons employed by the 
 post-office were within similar words in the repealed statute 52 G. 3, 
 c. 143, s. 3, those cases are now overruled. R. v. Brovm, R. S R. 32. 
 See R. V. Salisbury, 5 C. & P. 155. 
 
 Indictment for stealing, etc.. Letters, etc. 
 
 Commencement as ante, p. 313] — feloniously did steal, take and 
 carry away one post-letter (" a post letter-bag or post-letter'"), the 
 property of the postmaster- general, from a post letter-bag Q'' a post 
 letter-bag, or a post-office, or an officer of the post-office, or a mail"); 
 against the form [as ante, p. 347]. The property may be laid in the 
 ^^postmaster-general," and it is not necessary to allege or prove any 
 1-alue. As to the venue, see ante, p. 26. An indictment for stealing 
 letters out of a.post-qffi,ce paclcet may easily be framed from the above 
 precedent. 7 W. A & I Vict. c. 36, s. 29. 
 
 Felony : penal servitude for life or for not less than five [27 & 28 
 
Larceny. 383 
 
 Viet. c. 47, s. 2, ante, p. 173] years, or imprisonment not exceeding fmr 
 years, 7 W.id:! Vict. c. 36, ss. 28, 41 ; 20 <£ 21 Vict. c. 3, s. 2 (ante, 
 p. 172), 2oJ«/i or witluMt hard labour, and mth or without soUtarif 
 ccmfinement, 7 W. i t& 1 Vict. c. 36, s. 42, such confinement not exceed- 
 ing one month at any one time, nor three months in any one year. 7 
 W.ic&l Vict. c. 90, s. 5. 
 
 This offence is not triable at quarter sessions, 5 <£- 6 Vict. e. 38, s. 1 
 {ante, p. 104). 
 
 Evidence. 
 
 Prove the larceny of the letter, as dh-eeted ante, p. 314 et seq. The 
 taking away and destroying of a post-letter, in order to suppress 
 inquiries supposed by the defendant to be made in it about her 
 character, was held to be a larceny of the letter. R. v. Jones, 1 
 Ben. 188; 1 C. & K. 236. Where the defendant obtained the mail- 
 bags from the post-office, pretending that he was the mail-guard, and 
 then ran away with them ; the jury being of opinion that he got 
 possession of them with intent to steal them, found him guilty ; and 
 the judges held the conviction to be right. R. v. Pearce, 2 East, 
 P. C. 603. In this case the propei-ty did not pass, for the postmaster 
 had no property in the mail-bags to part with. 2 East, P. C. 673. 
 Taking the mail-bags off the horse during the momentary absence of 
 the person employed to carry them, was holden to be a taking from 
 his possession, within the meaning of the repealed statute 52 G. 3, 
 V. 14, s. 3. R. V. Robinson, 2 Starh. N. P. 485. 
 
 The definition of a post-letter has already been given ante, p. 380. 
 For the definition of the terms "letter," "packet," " mail," " mail- 
 bag," " officer of the post-office," "post letter-bag," etc., see 7 W.i 
 & 1 Vict. 0. 36, s. 47 {ante,p. 376). 
 
 Indictment for stopping Mails, with Intent to rob, etc. 
 
 Commencement as ante, p. 313] — a certain mail for the conveyance 
 of post-letters, feloniously did stop, with intent the same feloniouslv. 
 to search {"rob or search"); against the form [as ante, p. 347]. As 
 to the venue, see ante, p. 25, and 7 W. i d; 1 Vict. c. 36, s. 37 (ante, 
 p. 375). ' ^ ' 
 
 Felony: see the last precedent. 
 
 This offence is not triable at quarter sessions, 5 d- G Vict. c. 38 s 1 
 {ante, p. lOi). ' 
 
 Evidence. 
 Prove that the defendant stopped the mail, and prove the intent 
 by circumstances from which it may be inferred. If the defendant 
 actually robbed or searched the mail, his original intent so to do will 
 be put beyond doubt. 
 
 Indictment for retaining Letters after Delivery. 
 Commencement as ante, p. 313]— unlawfully and fraudulently did 
 retam (" shall fraudulently retain or wilfully secrete, or keep or detain, 
 or being required to deliver up by any officer of the post-office, shall 
 neglect or refuse to deliver up") a certain post-letter the property of 
 the postmaster-general, which ought to have been delivered to a 
 certain other person, to wit, one J. N. {"or a post-lettdr or a post 
 letter-bag, which shall have been sent") ; against the form las ante, 
 
384 Larceny. 
 
 p. 347]. Thep-operty may he laid in the postmaster-general, 1 W.i 
 S 1 Vict. c. 36, s. 40 {ante, p. 375). As to the venue, see ante, pp. 25, 
 375. 
 
 Misdemeanor : fine and imprisonment, 7 W. i <& 1 Vict, c. 36, », 31 ; 
 with or without hard labour, am,d with or without solitary confinement, 
 Id. s. 42 ; such confinement not exceeding one month at any one time, 
 nor three months in any one year. 7 W. i t& 1 Vict. c. 90, s. 5. 
 
 Evidence. 
 
 This is a new provision, intended to meet the case of R. v. Much- 
 low, 1 Mood. C. C. 160; see also R. v. Davies, Dears. 640; 25 L.J. 
 (M. C.) 91. Prove that the letter ought to have been delivered to 
 J. N. ; that it was delivered to the defendant, and was retained by 
 him, as stated in the indictment. If the defendant secretes, or keeps, 
 or detains the letter after request to deliver it up, by an officer 
 of the post-oflBce, it may be presumed that he does so wilfully, 
 unless, at the time of the refusal to deliver it up, he gives some 
 bond fide excuse for so doing. To make out a fraudulent retainer, 
 however, it must be shown, from the contents of the letter or other 
 circumstances, that the defendant well knew the letter was not 
 intended for him. It will be no defence that the letter or letter-bag 
 was found by the defendant, or any other person. 7 W.idl Vict, 
 c. 36, s. 31. 
 
 Indictment for procuring the Commission of Offences against tlie 
 Post-office. 
 
 Commencement as ante, 21. 313] — unlawfully did solicit {"solicitor 
 endeavour to procure") one J. S., then being a person employed by 
 and under the post-office of the United Kingdom, unlawfully and 
 contrary to his duty to open a post-letter, the property of the post- 
 master-general; against the form [as ante, 73.347]. From this and 
 the foregoing precedents an indictment may easily be framed for 
 procuring the commission of any "felony or misdemeanor, punishabk 
 by the post-office acts." As to the venue, see ante, pp. 25, 375. 
 
 Misdemeanor : imprisonment not exceeding two years, 7 TF. 4 ife 1 
 Vict. c. 36, s. 36, loith or without hard labour, and with or withmt 
 solitary confinement. Id. s. 42 ; such confinement not exceeding one 
 month at any one time, nor three months in any one year. T W. idi 
 Vict. c. 90, s. 5. 
 
 Evidence. 
 Prove that the defendant solicited or endeavoured to procure the 
 commission of the offence stated. It is immaterial whether the 
 offence was completed or not. 
 
 STEALING FROM A WEECK. 
 
 Statute. 
 
 24 S 25 Vict. c. 96, s. 64.] —Whosoever shall plunder or steal any 
 
 part of any ship or vessel which shall be in distress, or wrecked, 
 
 stranded, or cast on shore, or any goods, merchandise, or articles of 
 
 any kind belonging to such ship or vessel, shall be guilty of felony. 
 
Larceny: 385 
 
 and being convicted thereof shall be liable, at the discretion of the 
 court, to be kept in penal servitude for any term not exceeding 
 fourteen years, and not less than three years, [now Jive years, 27 S 28 
 Vict. c. 47, s. 2, cmte, p. 173,] or to be imprisoned for any term not 
 exceeding two years, with or without hard labour, and with or with- 
 out solitary confinement; and the offender maybe indicted and tried 
 either in the county or place in which the offence shall have been 
 committed or in any county -or place next adjoining. 
 
 Indictment. 
 
 Sussex, to wit :— The jurors for our lady the Queen upon their oath 
 
 present, that, on the first day of June, in the year of our Lord , 
 
 a certain ship (" any ship or vessel"), the propei-ty of a person or 
 persons to the jurors aforesaid unknown, was stranded (" in distress or 
 wrecked, stramded or cast on shore"), and that J. S., on the day and 
 year aforesaid, ten pieces of oak plank (" amy part of amy ship, etc."), 
 being parts of the said ship [or, twenty pounds weight of cotton 
 Q^any goods, merchandise or articles of any kind"), of the goods and 
 merchandise of a person or persons to the jurors aforesaid unknown, 
 belonging to the said ship], so then stranded as aforesaid, feloniously 
 did plunder, steal, take, and carry away ; against the form [as amte, 
 p. 347]. You may add a second covmt, stating the ship to have ieen 
 " in distress ;" a third count, stating the ship to have been " wrecked ;" 
 and a fourth count, stating the ship to have been " cast on shore." If 
 the name of the ship be knoiim, it should be stated in the indictment; 
 and if the name of the owner be knovm, the ship should be described as 
 his property. As to the venue, see s. 64, supra. 
 
 Felony : penal servitvdefor not more than fourteen nor less than Jive 
 [27. & 28 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment not 
 exceeding two years, unth or without hard labow, and with or without 
 solitary confinement (such confinement not exceeding one month at any 
 one time, nor three months in any one year, 24 <& 25 Vict. c. 96, s. 119, 
 amte, p. 308).— 24 d 25 Vict. c. 96, s. 64. As to requiring the offender 
 to enter into recognizances and find smetiesfor heepinq the peace. Id. 
 s. m (ante, p. &07). 
 
 Eindmce. 
 Prove that the ship or vessel in question was stranded or cast on 
 shore, etc., as described in the indictment ; if the name of the owner 
 of the ship be stated, prove that she was his property ; and prove the 
 larceny of the goods as directed ante, p. 314, et seq., whilst she was 
 stranded and cast on shore ; that the goods were part of or belonging 
 to the ship, as stated in the indictment ; and if the name of the owner 
 of the goods be stated, prove them to be his property. 
 
 HUNTING OK STEALING DEEK. 
 
 Statute. 
 24 <fe 25 Vict. c. 96, s. 12.]— Whosoever shall unlawfiiUy and wUfnUy 
 course, hunt, snare, or carry away, or kill or wound, or attempt to kill 
 or wound, any deer kept or being in the uninclosed part of any forest, 
 chase, or purlieu, shall for every such offence, on conviction thereof 
 beiore a justice of the peace, forfeit and pay such sum, not exceeding 
 litty pounds, as to the justice shall seem meet ; and whosoever, having 
 
386 Larceny. 
 
 been previously convicted of any offence relating to deer, for which 
 a pecuniary penalty shall have been imposed by this or by any 
 former act of parliament, shall afterwards commit any of the offences 
 hereinbefore enumerated, whether such second offence be of the 
 same description as the first or not, shall be guilty of felony, and 
 being convicted thereof shall be liable, at the discretion of the court, 
 to be imprisoned for any term not exceeding two years, with or 
 without hard labour, and with or without solitary confinement, and, 
 if a male under the age of sixteen years, with or without whipping. 
 
 Sect. 13.] — Whosoever shall unlawfully and wilfiilly course, hunt, 
 snare, or cany away, or kill or wound, or attempt to kill or wound, 
 any deer kept or being in the inclosed part of any forest, chase, or 
 purlieu, or in any inclosed land where deer shall be usually kept, 
 shall be guilty of felony, and being convicted thereof shall be liable, 
 at the discretion of the court, to be imprisoned for any term not 
 exceeding two years, with or without hard labour, and with or 
 without solitary confinement, and, if a male under the age of sixteen 
 years, with or vrithout whipping. 
 
 Sect. 14.] — If any deer, or the head, skin, or other part thereof, or 
 any snare or engine for the taking of deer, shall be found in the 
 possession of any person, or on the premises of any person with Ms 
 knowledge, and such person, being taken or summoned before a 
 justice of the peace, sh^l not satisfy the justice that he came lawfully 
 by such deer, or the head, skin, or other part thereof, or had a lawM 
 occasion for such snare or engine, and did not keep the same for any 
 unlawful purpose, he shall, on conviction by the justice, forfeit and 
 pay any sum not exceeding twenty pounds ; and if any such person 
 shall not under the said provisions be liable to conviction, then, for 
 the discovery of the party who actually killed or stole such deer, the 
 justice, at his discretion, as the evidence given and the circumstances 
 of the case shall require, may summon before him every person 
 through whose hands such deer, or the head, skin, or other part 
 thereof, shall appear to have passed ; and if the person from whom 
 the same shall have been first received, or who shall have had pos- 
 session thereof, shall not satisfy the justice that he came lawflilly 
 by the same, he shall, on conviction by the justice, be liable to the 
 payment of such sum of money as is hereinbefore last mentioned. 
 
 Sect. 15.] — ^Whosoever shall unlawfully and wilfully set or use any 
 snare or engine whatsoever, for the purpose of taking or killing deer, 
 in any part of any forest, chase, or purlieu, whether such part be 
 inclosed or not, or in any fence or bank dividing the same fi'om any 
 land adjoining, or in any inclosed land where deer shall be usually 
 kept, or shall unlawfully and wilfiilly destroy any part of the fence 
 of any land where any deer shall be then kept, shall, on conviction 
 thereof before a justice of the peace, forfeit and pay such sum of 
 money, not exceeding twenty pounds, as to the justice shall seem 
 meet. 
 
 Indictment for hvmting or stealing Deer in inclosed Places. 
 Commencement as amte, p. 313] — in certain inclosed land (" in the 
 inclosed part of any forest, chase, or purlieu, or in amy inclosed land 
 
Larceny. °^'^ 
 
 where deer shall be usually Jcept"), situate in the parish of——, in 
 
 the county of , in the occupation of J. N., where deer had been 
 
 and then were usually kept, one fallow deer, the property ot the 
 said J. N., then and there kept and being, in the said inclosed land 
 unlawfully, wUfuUy and feloniously did hunt, kill, and carry away 
 (" coarse, hunt, snare, or ca/rry away, or hill or wound, or attempt to 
 kill or wound") ; SigSLmst the ioicm [as ante, p. Bil}. 
 
 Felony: imprisonment not exceeding two years, with or without hard 
 labour, and with or without solitary confinement, and, if a male under 
 sixteen years of age, mth or without whipping (see ante, p. 308). — 24 
 d 25 Vict. c. 96, s. 13. As to requiring the offender to enter into 
 recognizances and find sureties for keeping the peace, Id. s. 117 (ante, 
 p. 307). 
 
 To support this indictment, you must prove the hunting, killing, or 
 etealing of the deer, as stated in the indictment; that the land in 
 •which the offence was committed was at the time inclosed, in the 
 occupation of J. N., and situate as stated in the indictment; and 
 that deer had been and then were usually kept there. 
 
 Indictment for hunting or stealing Deer in uninohsed Places, after a 
 preoious Conviction, 
 
 Middlesex, to wit:— The jurors for our lady the Queen upon their 
 oath present, that J. S., on the day of , A.D. 1866, in a cer- 
 tain uninclosed part of the forest of (" in the uninclosed part of 
 
 any forest, chase, or purlieu!''), situate in the parish of , in the 
 
 county of , one fallow deer, then and there being in the said un- 
 inclosed part of the said forest, unlaw&lly and wilful^ did hunt, kill, 
 and carry away (" course, hunt, snare, or carry away, or kill or wound, 
 or attempt to kill or wound"); against the form of the statute in such 
 case made and provided : And the jurors aforesaid, upon their oath 
 aforesaid, do say, that heretofore, and before the committing of the 
 
 offence hereinbefore mentioned, to wit, on the day of , 
 
 A.D. 1865, at , in the county of , the said J. S. was duly 
 
 convicted before J. P., one of her said Majesty's justices of the peace 
 
 for the said county of , for that he the said J. S. [setting out the 
 
 preoious conviction'] : And so the jurors aforesaid, upon their oath 
 aforesaid, do say, that the said J. S., on the day and in the year first 
 
 aforesaid, in the said uninclosed part of the said forest of , situate 
 
 in the said parish of , in the said county of , the said fallow 
 
 deer then and there being in the said uninclosed part of the said 
 forest, unlawfully, wilfuUy, and feloniously did hunt, kill, and carry 
 away; against the form of the statute in such case made and pro- 
 vided. 
 
 Second count. — And the jurors aforesaid, upon their oath aforesaid, 
 
 do further present, that the said J. S. afterwards, to wit, on the 
 
 day of — -, A.D. 1866, in a certain uninclosed part of the said forest 
 
 of , situate in the said parish of , in the said county of , 
 
 one fallow deer, then and there being in the said uninclosed part of 
 the said forest, unlawfully, wilfully, and feloniously did hunt, kill, 
 and carry away; against the form of the statute in such case made 
 and provided: And the jurors aforesaid, upon their oath aforesaid, do 
 s2 
 
388 Larceny. 
 
 say, that heretofore, and before the committing of the offence in this 
 
 count hereinbefore mentioned, to wit, on the day of , a.d. 
 
 1865, at , in the county of , the said J. S. was duly convicted 
 
 before J. P., one of her said Majesty's justices of the peace for the 
 said cotmty of -: — , for that he the said J. S. [settirig out the previout 
 conviction]. As to the form of this indictment, see the note to the pre- 
 cedent, ante, p. 363. 
 
 Felony : punishable as mentioned in the last precedmt. 24 <& 25 Vict, 
 c. 96, s. 12. The offences relating to deer for which a pecuniary pen- 
 alty is imposed, are : First, the coursing, hunting, snaring, or carrying 
 away, or killing or wounding, or attempting to kill or wound, any deer 
 Jcept or being in the uninclosed part of any forest, chase, or pu/rliea,for 
 the first time. 24 <fc 25 Vict. c. 96, s. 12. Secondly, the being in pos- 
 session of, or knowingly having upon the premises, any deer, or the 
 head, skin, or other part thereof, or any engine or snare for the taking 
 of deer. Id. s. 14. Lastly, the setting or using any snare or engine 
 whatsoever, for the purpose of taking or killing deer, in any part of any 
 forest, chase, or purlieu, whether inclosed or not, or in any hank, or 
 fence dividing the same from any land adjoininy, or in amy imhsed 
 land where deer are usually kept, or destroying any of the fence of any 
 land where any deer shall he then kept. Id. s. 15. 
 
 Emidence. 
 
 To support this indictment, you must prove the hunting, killing, 
 or stealing of the deer by the defendant, as stated in the indictment 
 — the commission of the offence in an uninclosed part of the forest, 
 as described, and the locality of that part of the forest in which 
 the offence was committed. If the defendant pleads guilty to, or 
 is found guilty of, the subsequent offence, prove the previous con- 
 viction in manner directed by 24 & 25 Vict. c. 96, s. 116 (oiite, 
 p. 307), and the identity of the defendant. The course of proceed- 
 ings at the trial, as to arraignment, etc., is regulated by the laet- 
 named section. 
 
 The prisoner may take exception to the validly of the previous 
 conviction, and if it be bad, he cannot be convicted upon this indict- 
 ment. R. v. Allen, R. & R. 513. 
 
 Where a summary conviction for an offence relating to a deer did 
 not state substairtively where the place was situate in which the 
 offence was committed, but in awarding the distribution of the penalty 
 gave it to the overseers of D., in the said county, " where the said 
 offence was committed," it was holden good. R. v. Weak, bC.dP. 
 135. 
 
 TAKING OR KILLING HAKES OK BABBITS IN WAKRENS, ETC., IK 
 THE NIGHT-TIME. 
 
 Statute. 
 24 «fc 25 Vict. c. 96, s. 17.]— Whosoever shall unlawMly and wil- 
 fully, between the expiration of the first hour after sunset, and the 
 beginning of the last hour before sunrise, take or kill any hare or 
 rabbit in any warren or ground lawfully used for the breeding or 
 keeping of hares or rabbits, whether the same be inclosed or not, 
 shall be guilty of a misdemeanor; and whosoever shall unlawfully 
 
Larceny. 
 
 389 
 
 and wilfaUy between the beginning of the last hour before sunnse 
 and the expiration of the first honr after snnset, take or kiU any hare 
 or rabbit, m any such warren or ground, or shaU at any tune set or 
 use therein any snare or engine for the taking of hares or rabbits 
 shall, on conviction thereof before a justice of the peace, forfeit and 
 pay snch sum of money, not exceeding five pounds, as to the justice 
 shall seem meet; provided that nothing in this section contained 
 shaU affect any person taking or killing in the day-time any rabbits 
 on any sea^bank or river-bank in the county of Loncobi, so far as the 
 tide shall extend, or within one furlong of such bank. 
 
 IndictmeTit. 
 
 Commencement as ante, p. 313]— between the expiration of the first 
 honr after sunset and the beginning of the last hour before sunrise, 
 to wit, about the hour of eleven in the night of the same day, in a 
 certain warren and ground, (" in any warren or ground lawfully used 
 for the breeding or keeping of hares or rabbits, whether the sarne be 
 inclosed or not,") in the occupation of J. N., situate in the parish of 
 
 , in the county of , the said warren and ground then being 
 
 lawfiJly used for the breeding and keeping of hares, unlawfully and 
 wiliully did take twenty hares (" take or kiU") ; against the form 
 [as ante, p. 347]. Adda count for taking rabbits, if it be necessary. 
 
 Misdemeanor : fine or imprisonment, or both (with sureties to keep 
 the peace and be of good behaviour, if the court shall think fit, 24 <£ 25 
 Vict. c. 96, «. 117, ante, p. 307).— 24 & 25 Vict. c. 96, s. 17. 
 
 Eoidence. 
 
 To support this indictment, you must prove — \st. That the defend- 
 ant took or killed the hares (or rabbits) in the place mentioned in 
 the indictment. " Taking," in the statute means " catching," and not 
 taking away. Where a defendant, who set several wires in a warren, 
 in one of which a rabbit was caugbt, was seized jnst as he was laying 
 hold of the wire to take the rabbit, which was then alive, the judges 
 held this to be a taking within the meaning of the repealed statute 
 7 <fe 8 e. 4, c. 29, «. 30. R. v. Glover, R. & R. 269.— 2nrf. That the 
 offence was committed in the night-time, as defined, for the purpose 
 of this offence, by the statute (supra), that is, between the expiration 
 of the first hour after sunset, and the beginning of the last hour 
 before sunrise.— 3r(f. That the place in which the defendant took the 
 hares (or rabbits), was a warren or ground then used for the breeding 
 or keeping of hares (or rabbits) ; that it was in the occupation of 
 J. N., and is situate as described in the indictment. It is immaterial 
 whether the ^farren or ground was inclosed or not. 
 
 The statute does not apply to taking or killing in the day-time 
 any rabbits on any sea-bank or river-bmk in the county of Lincoln, 
 so far as the tide shall extend, or within one ftrlong of such bank. 
 
 TAKING OE DESTEOTDJe FISH IN 'VrATEK ADJOINING A 
 DWELLING-HOUSE. 
 
 Statute. 
 24 * 25 Vi£t. c. 96, «. 24.]— Whosoever shaU nnlawftlly and wil- 
 fully take or destroy any fish in any water which shall run through 
 
390 Lwrcmy. 
 
 or be in any land adjoining or belonging to the dwelling-house of 
 any person being the owner of such water, or having a right of 
 fishery therein, shall be guilty of a misdemeanor ; and whosoever shall 
 unlawfully and wilfully take or destroy, or attempt to take or destroy, 
 any fish in any water not being such as hereinbefore mentioned, but 
 which shall be private property, or in which there shall be any pri- 
 vate right of fishery, shall, on conviction thereof before a justice of 
 the peace, forfeit and pay, over and above the value of the fish taken 
 or destroyed (if any), such sum of money, not exceeding five pounds, 
 as to the justice shall seem meet: provided that nothing hereinbefore 
 contained shall extend to any person angling between the beginning 
 of the last hour before sunrise, and the expiration of the first hour 
 after sunset ; but whosoever shall, by angling, between the beginning 
 of the last hour before sunrise, and the expiration of the first hour 
 after sunset, unlawfully and wilfully take or destroy, or attempt to 
 take or destroy, any fish in any such water as first mentioned, shall, 
 on conviction before a justice of the peace, forfeit and pay any sum 
 not exceeding five pounds ; and if in any such water as last men- 
 tioned, he shall, on the like conviction, forfeit and pay any sum not 
 exceeding two pounds, as to the justice shall seem meet; and if the 
 boundary of any parish, township, or vill shall happen to be in or by 
 the side of any such water as is in this section before mentioned, it 
 shall be sufficient to prove that the ofiTence was committed either in 
 the parish, township, or vill named in the indictment or information, 
 or in any parish, township, or vill adjoining thereto. 
 
 Indictment. 
 
 Commencement as ante, p. 313] — in a certain stream of water 
 (" any water") then running and being in certain land ("any land 
 adjoining or belonging to the dwelling-house") adjoining [or, belong- 
 ing] to the dwelling-house of J. N., situate in the parish of , in 
 
 the county of , the said J. N. then being the owner of the said 
 
 water [or, the said J. N. then having a right of fishery in the said 
 water], thirty fish called carp, thirty fish called tench, and thirty 
 fish called trout, unlawfully and wilfully did take [or destroy] ; 
 against the form [as amte,p. 347]. Where the indictment alleged the 
 fish to he the goods and chattels of the prosecutor, the judges held that 
 these words might be rejected as surplusage. R. v. Hvmdsdtm, 2 Eut, 
 
 P. a 611. 
 
 Misdemeanor: fine or imprisonment, or both, with siJreUes, etc. {See 
 ante, p. 307.) 24 d 25 Vict. c. 96, ». 24. 
 
 Eeidence. 
 
 Prove the taking or destruction of the fish mentioned, or some of 
 them. The taking need not be such a taking as would be necessary 
 to constitute a larceny. See R. v. Glover, R. & R. 269 {ante, p. 389). 
 But a taking by angling in the day-time will not be sufiicient. If a 
 destruction only be charged, it must be proved to have been wilful. 
 Prove, also, that the fish were taken or destroyed in a stream [or 
 water] running or being in land adjoining to (see R. v. Hodges, ante, 
 p. 362), or belonging to the dwelling-house of J. N., and which at the 
 time belonged to J. N., or in which he had a right of fishery. The 
 local situation of the dwelling-house and water must also be proved : 
 but if the boundary of any parish, township, or vill, happen to be in 
 or by the side of the water, it will be sufficient to prove that the 
 
391 
 
 offence was committed either in the parish, etc., named in the indict- 
 ment, or in the parish, etc., adjoining thereto. 24 tfc 25 Vtct. c. 96, 
 s. 24. 
 
 STEALING OR DREDGING POK OYSTERS, ETC. 
 
 24 <6 26 Viet. c. 96, ». 26.]— Whosoever shall steal any oysters 
 or oyster-brood from any oyster-bed, laying or fishery, being the 
 property of any other person, and sufficiently marked out, or known 
 as such, shall be guilty of felony, and being convicted thereof shall 
 be liable to be punished as in the case of simple larceny (ante, p. 
 303) ; and whosoever shall unlawfully and wilfully use any dredge, or 
 any net, instrument, or engine whatsoever, within the limits of any 
 oyster-bed, laying or fishery, being the property of any other person, 
 and sufficiently marked out or known as such, for the purpose of 
 taking oysters or oyster-brood, although none shall be actually taken, 
 or shall unlawfully and wilfully, with any net, instrument, or engine, 
 drag upon the ground or soil of any such fishery, shall be guilty of 
 a misdemeanor, and being convicted thereof shall be liable, at the 
 discretion of the court, to be imprisoned for any term not exceeding 
 three mouths, with or without hard labour, and with or without soli- 
 tary confinement ; and it shall be sufficient in any indictment to 
 describe, either by name or otherwise, the bed, laying or fishery, in 
 which any of the said offijnces shall have been committed, without 
 stating the same to be in any particular parish, township, or vill : 
 provided that nothing in this section contained shall prevent any 
 person from catching or fishing for any fioating fish within the limits 
 of any oyster fishery, with any net, instrument or engine adapted for 
 taking floating fish only. 
 
 31 (& 32 Vict. c. 4:5— Part 3— s. 28— Interpretation of Terms.]— In 
 this part of this act the words " oysters" and " mussels" respectively 
 include the brood, ware, half-ware, spat, and spawn of oysters and 
 mussels respectively. In this part of the act the expression " oyster 
 and mussel fishery" includes a fishery for either oysters or mussels 
 separately, and the term " oyster or mussel fishery" includes a fishery 
 for both oysters and mussels ; and the provisions of this part of this 
 act shall be construed to apply in the case of any fishery to oysters 
 and oyster ground and beds alone, or to mussels and mussel ground 
 and beds alone, or to both oysters and mussels and oyster and mussel 
 ground and beds, according as the right of fishery is for oysters 
 alone, or for mussels alone, or for both oysters and mussels. 
 
 Sect. i2— Marking out of Oyster, etc. Fishery, how proved.']— 'When- 
 ever it is necessary in any legal proceeding to prove that, in pursu- 
 ance of any act of parliament or of an order under this part of this 
 act, the limits of any oyster and mussel fishery have been duly 
 buoyed or otherwise marked, or notices of such limits have been duly 
 published, posted, or distributed, or that notice of the provisions of 
 the order or of such actl:elating to the oyster and mussel fishery has 
 been duly published, a certificate purporting to be under the hand 
 of one of the secretaries or assistant secretaries of the Board of 
 Trade, certifying that the Board of Trade are satisfied that the said 
 limits were so buoyed or marked, or that the said notices were duly 
 
392 Larceny. 
 
 published, posted, or distributed, shall be received as evidence that 
 the same have been so buoyed or marked, or that the said notices 
 have been so published, posted, or distributed. 
 
 Sect. 43 — Oyster Fishery to he within Cowntyfor purposes of Juris- 
 diction.'] — The portion of the sea-shore to which an order of the 
 Board of Trade under this part of this act relates (as far as it is not 
 by law within the body of any county) shall for all purposes of juris- 
 diction be deemed to be within the body of the adjoining county, or 
 to be within the body of each of the adjoining counties, if more than 
 one. 
 
 Sect. 51 — Property in Oysters, etc. within several Fishery.] — ^AU 
 oysters and mussels being in or on an oyster or mussel-bed within 
 the limits of a several oyster and mussel fishery granted by an order 
 under this part of this act, and all oysters being in or on any private 
 oyster-bed which is owned by any person independently of this act, 
 and is sufficiently marked out or sufficiently known as such, shall he 
 the absolute property of the grantees or of such owner, as the case 
 may be, and in all courts of law and equity and elsewhere, and for 
 all purposes, civil, criminal, or other, shall be deemed to be in the 
 actual possession of the grantees and such owner respectively. 
 
 Sect. 52 — Property in Oysters, etc. removed from several Fishery.'] — 
 All oysters and mussels removed by any person from an oyster or 
 mussel-bed within the limits of any such several fishery, and all 
 oysters removed by any person from any such private oyster-bed, 
 and not either sold in market overt or disposed of by or under the 
 authority of the grantees or owner (as the case may be), shall he 
 the absolute property of the grantees and owner respectively, and in 
 all courts of law and equity and elsewhere, and for all purposes 
 civil, criminal, or other, the absolute right to the possession thereof 
 shall be deemed to be in the grantees and owner respectively. 
 
 Sect. 55 — Statement and Proof of Ownership, et<^ in case of con- 
 tiguous Fisheries.] — When two or more oyster or mussel-beds or 
 fisheries belonging to difierent proprietors are contiguous to each 
 other, and any proceeding by indictment or otherwise is taken 
 against any person for stealing oysters or mussels from any bed 
 formed under an order made in pursuance of this part of this act, or 
 for stealing oysters from any bed formed independently of this act, it 
 shall be sufficient, in alleging and proving the property and lawful 
 possession of the oysters or mussels stolen, and the place from which 
 they were stolen, to allege and prove that they were the property of 
 and in the lawful possession of one or other of such proprietors, and 
 were stolen from one or other of such contiguous beds or fisheries. 
 
 Part A:— Sect. 65 — Saving.] — ^Nothing in this act shall prevent any 
 person being liable under any other act or otherwise to any indict- 
 ment, proceeding, punishment, or penalty, other than is provided for 
 any offence by this act, so that no person be punished twice for the 
 same offence. 
 
 Indictment for stealing Oysters or Oyster-Brood. 
 
 Commencement as ante, p. 313] — from a certain oyster-bed (" any 
 oyster-bed, laying, or fishery, being the property of any other person, 
 
Larceny, 393 
 
 and sufficiently marked out or known as mch") called , the 
 
 property of J. N., and sufficiently [marked out and] known as the 
 property of the said J. N., one thousand oysters feloniously did steal, 
 take and carry away ; against the form [as ante, p. 347]. It is mffi- 
 cient to describe, either by name or otherwise, the bed, laying, or fishery 
 in which the offence is committed, rdthout stating the same to be in any 
 particular parish, township, or vill. 24: <& 25 Vict. c. 96, s. 26. Asia 
 the mode of alleging the property in the casters and the place from 
 which thty were stolen when they ham been stolen from one of two or 
 more contiguous beds belonging to different proprietors, but it is not 
 known from which of such beds they have been stolen, see 31 & 32 Vict. 
 t. 45, s. 65, supra. 
 
 Felony : punishable as simple larceny. {See ante, p. 313.) — 24 tt 25 
 Vict.c. 96, s. 26. 
 
 Evidence. 
 
 Prove a larceny of the oysters or some of them, as directed ante, 
 p. 314, et seq. Prove, also, that the place from whence they were 
 taken was at the time the oyster-bed, laying or fishery of J. N., and 
 was sufficiently marked out or known as such. That it was suffi- 
 ciently marked out may be proved as directed by 31 & 32 Vict. e. 45, 
 s. 42, supra. As to the proof of the property in the oysters and the 
 place from which they have been stolen when the theft has been 
 from one of two or more contiguous beds belonging to different pro- 
 prietors, but it is not known from which of such beds they have been 
 stolen, see 31 <& 32 Vict. e. 45, s. 65, supra. 
 
 Indictment for using a Dredge, etc., in the Oyster Fishery of another. 
 
 Commencement as ante, p. 313]— within the limits of a certain 
 
 oyster-bed (" any oyster-bed, laying, or fishery") called , the 
 
 property of J. N., and sufficiently [marked out and] known as the 
 property of the said J. N., unlawfully and wilfully did use a certain 
 dredge (" arty dredge, net, instrument, or engine whatsoever") for the 
 purpose of then and there taking oysters (" oysters or oyster-brood") ; 
 against the form \as ante,p. 347]. Sie the last precedent. 
 
 Misdemeanor : pwnishable by imprisonment not exceeding three months, 
 with or without hard labour, and with or without solitary confinement 
 (such confinement not exceeding one month at amy one time, 24 & 25 
 Vict. c. 96, s. 119, ante, p. 308).— 24 & 25 Vict. c. 96, s. 26. The 
 offender may also, in addition to or in lieu of this punishment, be fined, 
 md required to enter into his own recognizances and to find sureties, 
 l., °L ^i*^^*"' f"^ keeping the peace and being of good behaviour. 
 24 c6 26 Fic«. c. 96, s. 117 (anfe,^. 307). 
 
 Evidence. 
 
 Prove that the defendant used a dredge, etc., within the limits of 
 
 the oyster-bed etc., of J. N., as stated in the indictment; and that 
 
 such oyster-bed, etc., was at the time the property of J. N., and was 
 
 sufficiently [marked out and] known as such. That it was so marked 
 
 QoT^^r,.!,® P™""®^ *' ^"^«'=*«'^ by 31 <^ 32 Vict. c. 45, s. 42, ante, 
 p. m. The purpose is to be inferred from the act, and it is imma- 
 tenal whether the defendant actually took any oysters or oyster- 
 brood or not. The statute does not apply to persons catching or 
 
 s5 ' 
 
394 Larceny. 
 
 fishing for any floating fish within the limits of an oyster fishery, 
 ■with any net, instrument or engine, adapted for taking floating fish 
 only. 24 S 25 Vict. c. 96, s. 26. 
 
 IndicMmtfor dragging upon the grovnd of the Oyster Fishery 
 of another. 
 
 Commemement as ante, p. 313]— upon the ground Q^grtimd or 
 
 soiV) of a certain oyster fishery (" such fishery") called , the 
 
 property of J. N., and sufficiently [marked out and] known as the 
 property of the said J. N., with a certain net (" any net, instrument, or 
 engine") "unlawfully and wilfully did drag; against the form [as anUe, 
 p. 347]. 
 
 Misdemeanor: see the last precedent. 24 (& 25 Vict. c. 96, s. 26. 
 
 Eoidence. 
 
 Prove that the defendant dragged with a net, etc., upon the ground 
 of the oyster-bed, etc., as stated in the indictment ; and that such 
 oyster-bed, etc., was at the time the property of J. N., and was suffi- 
 ciently [marked out and] known as such. That it was so marked 
 out may be proved as directed by 31 d 32 Vict. c. 45, s. 42, ante, 
 p. 391. The statute does not apply to persons catching or fishing 
 for any floating fish within the limits of any oyster fishery, with any 
 net, instrument, or engine, adapted for taking -floating fish only. 
 24 d 25 Vict. c. 96, g. 26. 
 
 LAllCENY BY TENANTS OK LODfiERS. 
 
 Statute. 
 24 d; 25 Vict. c. 96, «. 74.] — Whosoever shall steal any chattel or 
 fixture let to be used by him or her in or with any house or lodgtag, 
 whether the contract shall have been entered into by him or her or 
 by her husband, or by any person on behalf of him or her or her 
 husband, shall be guilty of felony, and being convicted thereof shall 
 be liable, at the discretion of the court, to be imprisoned for any term 
 not exceeding two years, with or without hard labour, and .with or 
 without solitary confinement, and, if a male under the age of sixteen 
 years, with or without whipping; and in case the value of such 
 chattel or fixture shall exceed the sum of five pounds, shall be liable, 
 at the discretion of the court, to be kept in penal servitude for any 
 term not exceeding seven years and not less than three years [now 
 five years, 27 <& 28 Vict. c. 47, s. 2, ante, p. 173], or to be imprisoned 
 for any term not exceeding two years, with or without hard labour, 
 and with or without solitary confinement, and, if a male under the 
 age of sixteen years, with or without whipping ; and in every case of 
 stealing any chattel in this section mentioned, it shall be lawful 
 to prefer an indictment in the common form as for larceny; and 
 in every case of stealing any fixture in this section mentioned, to 
 prefer an indictment in the same form as if the offender were not a 
 tenant or lodger ; and in either case to lay the property in the owner 
 or person letting to hire. 
 
Larceny. 395 
 
 Indictment. 
 
 The indictment for stealing a chattel will be in the form, ante^ 
 p. 313, and for stealing a fixture, in the form, ante, p. 368. The 
 article stolen must be described as the property of the landlord ; and 
 in the latter case the dwelling-house or lodging must, according to 
 circumstances, be described as the dwelling-house of the defendant, 
 or of the landlord, as in burglary. 
 
 Felony : imprisonment not exceeding two years, with or without hard 
 labow, and with or without solitary confinement (such confinement not 
 exceeding one month at any one time, nor three months in amy one year, 
 24 & 25 Vict. c. 96, s. 119, ante, p. 308) ; and, if a male wider sixteen, 
 with or without whipping (Id.) : — or if the value of the chattel or fixture 
 exceed 51, penal servitude for not exceeding seven and not less than five 
 [27 c6 28 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment, etc., as 
 above. — 24 <& 25 Vict. c. 96, s. 74. As to requiring the offender to 
 enter into recognizcmces and find sureties for keeping the peace. Id. «. 1 17 
 (ante, p. 307). 
 
 Evidence. 
 
 Prove a larceny of the chattel mentioned in the indictment, as 
 directed ante, p. 314, et seq. : or, if the indictment allege that the 
 defendant stole a fixture, prove the allegations of that indictment, as 
 directed ante, p. 368. Independently of the statute, the contract of 
 letting, and that the goods were in his possession under that contract, 
 would be matter of defence for the defendant ; but as that circum- 
 stance would now be no defence, it is immaterial whether the contract 
 of letting be proved or not. 
 
 BREAKING AND ENTERING A CHURCH OR CHAPEL, AND STEALING 
 THEREIN. 
 
 Statute^ 
 
 24 (£• 25 Vict. c. 96, s. 50.]— Whosoever shall break and enter any 
 church, chapel, meeting-house, or other place of divine worship, and 
 commit any felony therein, or being in any church, chapel, meeting- 
 house, or other place of divine worship, shall commit any felony 
 therein, and break out of the same, shall be guilty of felony, and 
 being convicted thereof shall be liable, at the discretion of the court,' 
 to be kept in penal servitude for life, or for any term not less than 
 three years [now five years, 27 cB 28 Vict. c. 47, s.2, ante, p. 173], or 
 to be imprisoned for any term not exceeding two years, with or with- 
 out hard labour, and with or without solitary confinement. 
 
 Indictment. 
 
 Commencement as ante, p. 313]— the church of the parish of , 
 
 in thecounty of , [or a certain chapel, situate in the parish of 
 
 , in the county of ] (" any church, chapel, meeting-house, or 
 
 other place of divine worship") feloniously did break and enter, and 
 then, in the said church, one silver cup, of the goods and chattels of 
 the parishioners of the said parish, feloniously did steal, take and 
 carry away; against the form [as ante, p. 347]. 
 
396 Larceny. 
 
 If a chapel which is private proper^ be broJeen and entered, lay the 
 property as in other cases of larceny. 
 
 If a parish chwrch he broken and entered, add a count stating the 
 chattel to be the chattel of the rector, and another stating it to be 
 the chattel of the churchwardens. See 1 Sale, 51, 52 ; Id. 81; 2 East, 
 
 P. a 681. 
 
 As to the offence of breaJcing into a church, etc., with intent to commit 
 felony, no fdony being actually committed therein, see 24 <& 25 Vict, 
 c. 96, s. 57, post, p. 398. 
 
 Felony : penal servitude for life or for not less than five [27 (& 28 
 Vict. c. 47, s. 2, ante p. 173] years, or imprisonment not exceeding two 
 years, vxith or without hard labour, and with or without solium/ con- 
 finement (juch confinement not exceeding one month at any one time, 
 nor three months in any one year, 24 S 25 Vict. c. 96, «. 119, ante, 
 p. 308). — 24 <& 25 Vict. c. 96, s. 50. As to requiring the offender to 
 enter into recognizances and find sureties for heepiTig the peace. Id. 
 s. 117 (ante, p. 307). 
 
 This offence is not triable at quarter sessions. 5 <£ 6 Vict. c. 38, 
 s. 1 (ante, p. 104). 
 
 Evidence. 
 Prove that the defendant broke and entered the church or chapel 
 described in the indictment, in the same manner as in burglary (post. 
 Sect. 4), except that it need not be proved to have beeh done in the 
 night-time. The vestry is part of the church for this purpose. B. 
 v. Evans, C. & Mar. 298. If the evidence fail in this respect, the 
 defendant may be convicted for simple larceny. Then prove the 
 larceny, as directed ante, p. 314, et seq. The words " any chattel" 
 ■would probably be held to extend to articles in a church or chapel, 
 though not used for divine service: for the words " any goods" in the 
 repealed statute 1 Ed. 6, c. 12, were held not to be confined to goods 
 used for divine service, but to extend to articles used in the church to 
 keep it in repair, as a pot used to hold charcoal for airing the vaults, 
 and a snatch-block used to raise weights if the bells wanted repair. 
 a. V. Rourke, R. & R. 386. The allegation of property in the pa- 
 rishioners, rector, or churchwardens, will be sufficiently proved by 
 evidence that the church is a parish church; but the property in goods 
 in a chapel must be proved as in ordinary cases. Upon an indictment 
 for stealing goods from a dissenting chapel, the first count of the in- 
 dictment described them as the property of the trustees of the chapel, 
 and the second as the property of a person who was employed to take 
 care of the chapel, kept the keys of the chapel, and received a salary 
 for so doing; the first count was not proved, and thejudges held that 
 the second could not be sustained, because the goods could not be 
 considered as belonging to the chapel-keeper. R. v. Hutchinson, B. 
 & R. 412. Where a prisoner was indicted for stealing a Bible, a 
 hymn-book, and a pair of brass sconces, the property of J. B. and 
 Mhers, which it appeared had been stolen from a Methodist chapel at 
 Fakenham, and the Bible and hymn-book had been presented to the 
 Society of Methodists there, of which J. B. was one, and also a trustee 
 of the chapel, but the trust deed was not produced, Parke, J., held, 
 that as J. B. was one of the society, the property was well laid in 
 him. R. V. Boulton, b C.& P. 537. Where the property stolen was 
 a box containing money collected for the poor, which was screwed to 
 the outside of a pew in the centre aisle of a church, the property was 
 held to be well laid in the churchwardens in their individual names. 
 
La/rcmy. 397 
 
 R. V. WoHley, 1 Dm. 162; 2 C. & K. 283. Lastly, prove that the 
 church or chapel is situate as described in the indictment. 
 
 The word " chapel," in the repealed statute 7 c6 8 (?. 4, c. 29, s. 10, 
 was construed not to apply to chapels of Dissenters, because where 
 the Legislature meant to protect the chapels of Dissenters, they ex- 
 pressly mentioned them, as in the stat. 7 cfc 8 C 4, c. 30, s. 2. R. v. 
 Warren, 6 C. S P. 336, n. See also R. v. Nixon, T C. & P. 442. 
 But the present statute has also the words " meeting-house, or other 
 place of divine worship." 
 
 Indictmeni for stealing in and breaking out of a Church or Chapel. 
 
 Commencement as ante, p. 313] — one silver cup, of the goods and 
 
 chattels of the parishioners of the parish of , in the county of 
 
 , in the church of the said parish, there situate, feloniously did 
 
 steal, take, and can-y away; and that the said J. S., so being in the 
 said church as aforesaid, afterwards, and after he had so committed 
 the said felony in the said church as aforesaid, on the day and year 
 aforesaid, feloniously did break out of the said church ; against the 
 form las ante, p. 347] . See the last precedent. 
 
 Felony, 24: S 25 Vict. c. 96, s. 50. See the last precedent. 
 
 This offence is not triable at qua/rter sessions. 5 «fe 6 Vict. c. 38, 8. 1 
 (ante, p. 104). 
 
 Prove the larceny, as directed in the last case; prove the breaking 
 out, as in burglary (post, Sect. 4), except that it need not be proved 
 to have been done in the night-time; and prove the local situation of 
 the church or chapel, as described in the indictment. 
 
 HOUSEBREAKING AND STEALING IN A DWELLING-HOUSE, ETC. 
 
 Statute. 
 24 <& 25 Vict. c. 96, s. 53.]— No building, although within the 
 same curtilage with any dwelling-house, and occupied therewith, 
 shall be deemed to be part of such dwelling-house for any of the 
 purposes of this act, unless there shall be a communication between 
 such building and dwelling-house, either immediate or by means of 
 a covered and inclosed passage leading from the one to the other. 
 
 Sect. 56.]— Whosoever shall break and enter any dwelling-house, 
 school-house, shop, warehouse, or counting-house, and commit any 
 felony therein, or being in any dwelling-house, school-house, shop, 
 warehouse, or counting-house, shall commit any felony therein, and 
 break out of the same, shall be guilty of felony, and being convicted 
 thereof shall be liable, at the discretion of the court, to be kept in 
 penal servitude for any term not exceeding fourteen years, and 
 ■ not less than three years [now five years, 27 S 28 Vict. c. 47, s. 2, 
 ante, p. 173], or to be imprisoned for any term not exceeding two 
 years, with or without hard labour, and with or without solitary 
 confinement. 
 
398 Larceny. 
 
 Sect. 57.] — Whosoever shall break and enter any dwelling-house, 
 church, chapel, meeting-house, or other place of divine worship or 
 any building within the curtilage, school-house, shop, warehouse, or 
 counting-house, with intent to commit any felony therein, shall he 
 guilty of felony, and being convicted thereof shall be liable, at the 
 discretion of the court, to be kept in penal servitude for any term 
 not exceeding seven years, and not less than three years [now fine 
 years, 27 <& 28 Vict. e. 47, s. 2, ante, p. 173], or to be imprisoned for 
 any term not exceeding two years, with or without hard labour, and 
 with or without solitary confinement. 
 
 Sect. 60.] — Whosoever shall steal in any dwelling-house any 
 chattel, money, or valuable security, to the Value in the whole of 
 five pounds or more, shall be guilty of felony, and being convicted 
 thereof shall be liable, at the discretion of the court, to be kept in 
 penal servitude for any term not exceeding fourteen years, and not 
 less than three years [now five years, 27 & 28 Vict. c. 47, s. 2, ante, 
 p. 173], or to be imprisoned for any term not exceeding two years, 
 with or without hard labour, and with or without solitary con- 
 finement. 
 
 Sect. 61.] — Whosoever shall steal any chattel, money, or valuable 
 security in any dwelling-house, and shall by any menace or threat 
 put any one being therein in bodily fear, shall be guilty of felony, 
 and being convicted thereof shall be liable, at the discretion of the 
 court, to be kept in penal servitude for any term not exceeding 
 fourteen years, and not less than three years [now five years, 27 <£28 
 Vict. c. 47, s. 2, ante, p. 173], or to be imprisoned for any term not 
 exceeding two years, with or without hard labour, and with or with- 
 out solitary confinement. 
 
 Indictment for HousehreaMng. 
 
 Commencement as ante,p. 313] — the dwelling-house of J. N., situate 
 
 in the parish of , in the county of , feloniously did break 
 
 and enter, with intent the goods and chattels of the said J. N., in the 
 said dwelling-house then being, feloniously to steal, take and carry 
 away, and one dressing-case, of the value of five pounds, of the 
 goods and chattels of the said J. N., then in the said dwelling-house 
 then feloniously did steal, take and carry away ; against the fonn [as 
 ante, p. 347] . See as to the form of the indictment, S. v. Andrews, 
 C. <& Mar. 121, overruling R. v. Smith, 2 M.& Boh. 115 (post,p.AOO). 
 An indictment was held sustainable for a misdemeanor (but see nm 
 24 & 25 Vict. c. 96, s. 57, supra'), which charged that the defendant mir 
 lawfully broke and entered the dwelling-house of J. N., with intent the 
 goods and chattels in the said dwelling-house then being to steal, 
 without stating whose goods he intended to steal. R. v. Lawes, 1 C. 
 & K. 62. If the evidence fail to prove the actual stealing, but the 
 breaMng, entry and intent to steal he proved, the prisoner may be con- 
 victed vmder this indictment of the felony described in 24 & 25 Vid. 
 c. 96, s. 57, supra. If the evidence fail to prove the breaking, but if 
 the stealing in the dwelling-house to the amount of 51. be proved, the 
 prisoner may be convicted of the felony described in 24 <& 25 Vict, 
 c. 96, s. 60, supra. 
 
Larceny. 399 
 
 Felony, 24 <& 25 Vict. c. 96, s. 56 ; penal servitude for not more than 
 fmrteennor less than five [27 (& 28 Vict. e. 47, s. 2, ante, p. 173] j^ea?-«, 
 or imprisonment not exceeding two years, with or without hard labour, 
 and with or vnthout solitary confinement (such confinement not exceeding 
 one month at any one time, nor three months in any one year, 24 cfc 25 
 Vict. c.%,s. 119, ante, p. 30S).-24:S 25 FJci. c. 96, s. 56. As to re- 
 quiring the offender to enter into recognizances and find sureties for 
 keeping the peace. Id. s. 117 {ante, p. 307). 
 
 Evidence. 
 The Dwelling-house of J. iV^.]— This must be proved in the same 
 manner as in burglary (see post. Sect. 4). By stat. 24 <& 25 Vict. c. 
 96, s. 53, ante, p. 397, it is provided that no building, although within 
 the same curtilage with any dwelling-house, and occupied therewith, 
 shall be deemed to be part of such dwelling-house for any of the 
 purposes of that act, unless there shall be a communication between 
 such building and dwelling-house, either immediate, or by means of 
 a covered and enclosed passage leading from the one to the other. 
 
 Did break amd enter.'] — This must be proved in the same manner 
 as in burglary ; 1 Bale, 526 ; Fost. 108 (see post. Sect. 4) ; except 
 that it need not be proved to have been done in the night-time ; but 
 if it be proved to have been done in the night-time, so as to amount 
 to burglary, the defendant may notwithstanding be convicted upon 
 this indictment. See JR. v. Pearce, R. v. Robinson, ante, p. 62. 
 
 In the said Dwelling-house, etc.l — There must be an actual and 
 not merely a constructive taking, but in all other respects the larceny 
 may be proved in the manner directed ante, p. 314, et seq. Where 
 the prosecutor, in consequence of the threat of an armed mob, fetched 
 provisions out of his house and gave them to the mob, who stood out- 
 side the door, this was holden not to be stealing in the dwelling- 
 house. R. V. Leonard, Cheshire Special Commission, 1842. Where 
 it appeared that the prisoner, after breaking and entering the house, 
 took two half-sovereigns from a bureau in one of the rooms, but, 
 being immediately detected, threw them under the grate in that 
 room, Parke, J., held that this was a sufficient asportation to consti- 
 tute a stealing within the meaning of this clause of the statute. 
 R. V. Amier, H C. di P. 344. The value of the goods is immaterial, 
 if a breaking and entry be proved. 
 
 If the prosecutor succeed in proving the larceny, but fail in proving 
 any of the other circumstances above mentioned, the defendant may 
 be convicted of simple larceny ; or if the prosecutor fail in proving 
 the breaking and entry, and the goods be laid and proved to be of the 
 value of five pounds, the defendant may be convicted of stealing in 
 the dwelling-house. The defendant cannot, on this indictment, be 
 convicted of breaking and entering the dwelling-house, and attempt- 
 ing to steal the prosecutor's goods, when it appears that the goods 
 specified in the indictment were not in the house at the time, though 
 other goods of the prosecutor's were. R. v. M'Pherson, Dears. S 
 B. 197 ; 26 L. J. (M. C.) 134. He may, however, it would seem, 
 under such circumstances, be convicted of breaking and entering 
 with intent to commit a felony under 24 <& 25 Vict. c. 96, s. 57, ante, 
 p.m. ^ 
 
400 Larceny. 
 
 Indictment for hreahing into and stealing in a Shop, 
 
 Commencement as ante, p. 313] — ^the shop of J. N., situate in the 
 
 parish of , in the county of , feloniously did break and enter 
 
 with intent the goods and chattels of the said J. N., in the said shop 
 then being, feloniously to steal, take and carry away, and twenty 
 yards of muslin, of the goods and chattels of the said J. N., then in 
 the said shop then feloniously did steal, take and carry away ; against 
 the form \as ante, p. 347]. It had heen ruled that the indictment must 
 allege expressly that the defendant stole the goods in the shop, amd that 
 an averment that they were in the shop, and that the defendant stole 
 them, was not enough; E. v. Smith, 2 M. & Roh. 115; but this case 
 was overruled by R. v. Andrenjos, C. & Mar. 121. 
 
 Felony: see the last precedent. — 24 d 25 Vict. e. 96, s. 56. 
 
 Evidence. 
 
 Prove that the defendant broke and entered the shop, etc., in ques- 
 tion, in the same manner as upon an indictment for burglary (post. 
 Sect. 4), except that it is immaterial whether the breaking and entry 
 be by night or by day ; if this proof fail, the defendant may be con- 
 victed of the simple larceny. Prove that the shop, etc., was at the 
 time, etc., the shop of J. N., that is, that he occupied it, and carried 
 on business there ; then prove the larceny of the goods enumerated 
 in the indictment, in the same manner as upon an indictment for 
 housebreaking (ante, p. 399), or stealing in the dwelling-house (post, 
 p. 402). The value is immaterial. And lastly, prove that the shop, 
 etc., is situate as described in the indictment. 
 
 Upon the repealed stat. 10 <& 11 W. 3, c. 23, s. 1, it was holden that 
 the goods stolen must have been the actual property of the owner of 
 the shop, etc., E. v. Stone, 1 Leach, 334 : Anon., 2 East, P. C. 642, or 
 at least, such as were left with him for sale, lb., and were exposed, 
 or were intended to be exposed, for sale. It was also holden that a 
 warehouse, to be within the meaning of that statute, must have been 
 such as factors or traders keep their goods for sale in, and where cus- 
 tomers go to view them, and not such as are used for the safe keep- 
 ing of goods merely ; R. v. Howard, Post. 77, 78 ; see R. v. Godfrey, 
 1 Leach, 287 ; but this distinction is now exploded ; see R. v. Hill, 2 
 M. <& Rob. 458. There is a dictum, of Alderson, B., upon the repealed 
 stat. 7 cfc 8 6r. 4, c. 29, s. 15, that a shop, to be within it, must be a 
 shop for the sale of goods, and that a mere workshop (such as a car- 
 penter's or blacksmith's shop) would not be sufficient. R. v. Sanders, 
 9 G cfc P. 79 : but see the subsequent case of R. v. Carter, 1 C.&K. 
 173, in which Lord Denman, C. J., dissented from that dictum, and 
 held that a blacksmith's shop, used as a workshop only, was within 
 the 7 c6 8 O. 4, c. 29, s. 15. 
 
 As to what building is a cownimg-house within the statute, see R. v. 
 Potter, 2 Den. 235 ; 3C.dK. 179 ; 20 L. J. (M. C.) 170. 
 
 Indictment for stealing in a Dwelling-house, some Person therein being 
 put in fear. 
 Commencement as ante, p. 313] — one silver basin, of the value of 
 five pounds, of the goods and chattels of J. N., in the dwelling-house 
 
 of the said J. N., situate in the parish of , in the county of , 
 
 feloniously did steal, take and carry away; one J. L. and M. his 
 
Larceny. 401 
 
 ■wife then, to wit, at the time of the committing of the felony afore- 
 said, being in the said dwelling-house, and therein by the said J. S. 
 by a certain menace and threat then used by the said J. S. then 
 being put in bodily fear; against the form [as ante, p. 347]. The 
 indictment must expressly allege that sotm person in the house was put 
 • in fear by the defendant. R. v. Etherington, 2 Leach, 671 ; 2 East, 
 P. C. 635. The value, if amounting to bl., had better always he in- 
 serted, as the prisoner may be convicted on this indictment of stealing to 
 the value of bl. in the dwelling-house, if no n,enace or threat should be 
 
 Felony: penal servitude for not more than fourteen nor less thamfive 
 [27 (& 28 Vict. V. 47, s. 2, ante, p. 173] years, or imprisonment not ex- 
 ceeding two years, with or without hard labour, and with or without 
 solitary canfmement (mch confinement not exceeding one month at any 
 one time, and not exceeding three months in any one year, 24 <& 25 Vict, 
 c. 96, s. 119, ante, p. 308).— 24 <& 25 Vict. c. 96, s. 61. As to re- 
 quiring the offender to enter into recognimnces and find sureties for 
 keeping ihepeace. Id. s. 117 (wnte,p. 307). 
 
 Eeidemce. 
 
 Prove the larceny as directed am,te,p. 314 et seq. The value is im- 
 material, if some person was in the house at the time, and was put in 
 bodily fear by a menace or threat of the defendant ; which may be 
 either by words or gestures. R. v. Jackson, 1 Leach, 269. Then 
 prove that the larceny was committed in the dwelling-house of J. N., 
 situate as described in the indictment, or in some building occupied 
 therewith, and connected or communicating therewith, either imme- 
 diately or by means of a covered and enclosed passage. {See the 
 evidence in the last case but one.) Lastly, prove that the person men- 
 tioned in the indictment was in the house at the time, and was put in 
 fear by the menaces or threats of the defendant or his accomplices. 
 R. V. Etherington, 2 Leach, 671 ; 2 East, P. C. 635. On the former 
 statutes which did not require that the party should be put in fear by 
 a menace or threat, it does not appear to have been settled whether it 
 was necessary to prove an actual sensation of fear; but the pi'actice 
 has been, upon the repealed stat. 3 W.d: M. c. 9, which for this pur- 
 pose is the same as the other statutes, to require proof of actual fear, 
 where the fact was committed out of the presence of the party, so as 
 not to amount to a robbery at common law ; and it has been said, if 
 the fact be committed in the presence of the party, to depend upon 
 circumstances whether fear will or will not be implied ; if the party 
 in whose presence the property was taken was not conscious of the 
 fact no fear could be implied. See 2 East, P. C. 635. But now, by 
 the express words of the statute, the putting in fear must be proved 
 to have been by an actual menace or threat. 
 
 If the prosecutor fail to prove that the person mentioned in the in- 
 dictment was in the dwelling-house, and was put in fear, the defendant 
 may still be convicted of simple larceny; or if the goods stolen in the 
 dwelling-house be laid and proved to be of the value of five pounds, 
 he may be convicted of stealing in the dwelling-house. 
 
 Indictment for stealing in a Dwelling-house to the value of &b. 
 Comm^eneement as ante, ». 313] — one silver sugar basin, of the value 
 of three pounds, six silver table-spoons, of the value of three pounds, 
 and twelve silver tea-spoons, of the value of two pounds, of the goods 
 
402 Larceny. 
 
 and chattels of J. Gr., in the dwelling-house of J. N., situate in the 
 
 parish of , in the county of , feloniously did steal, take, and 
 
 carry away ; against the form [as ante, p. 347] . Where (before the 
 14 (fe 15 Vict. c. 100, s. 23, ante, p. 49) the indictment alleged that the 
 defendant at, etc., stole certain goods " in the dwelling-house of W. T., 
 then and there heing," omitting the words " there situate," the judges^ 
 held that the house must he considered as described of the place laid as 
 special vemte. R. v. Napper, 1 Mood. C. C. 44: amd see R. v. Richards, 
 IM.S Rob. 177. 
 Felony : see the last precedent. 24 c6 25 Vict. c. 96, s. 60. 
 
 Evidence. 
 
 Prove the larceny as directed ante, p. 314 et seq. Prove it to have 
 been committed in the dwelling-house of J. N., or in some building 
 occupied therewith, and connected, or communicating therewith, 
 either immediately, or by means of a covered and enclosed passage 
 leading from the one to the other (see the evidence in the last case hut 
 one); and prove the goods stolen to be of the value of five pounds or 
 more. 
 
 If you fail to prove the larceny, the defendant must of course be 
 acquitted altogether. If you fail to prove it to have been committed 
 in a dwelling-house or some building communicating therewith (such 
 as burglary might be committed in, 2 East, P. C. 644; andi see post. 
 Sect. 4), or fail to prove that it was the dwelling-house of J. N., R. 
 v. White, 1 Leach, 262: -B. v. Woodward, Id. 253, n.: or fail to prove 
 the goods (stolen at any one time, R. v. Petrie, 1 Leach, 224: see B. v. 
 Hamilton, Id. 348 : R. v. Jones, i C. S P. 217 : R. v. Durni, 1 Mood. 
 C. C. 146 : R. V. Smith, Id. 178) to be of the value of five pounds, 
 the defendant must be acquitted of the compound ofience, and may 
 be found guilty of the simple larceny only. 
 
 It had been held in several cases, that if a man steal the goods of 
 another in his own house, R. v. Thompson, 1 Leach, 338, or a woman 
 steal the goods of a stranger in the house of her husband, R. v. 
 Gould, 1 Leach, 4, it is not within the statute, which was not intended 
 to protect property which might be in a house from the owner of the 
 house, but from the depredations of others ; but these cases appear 
 to be overruled by that of R. v. Bowden, 2 Mood. C. C. 285; 1 C.d 
 K. 147, where all the judges agreed that stealing in a dwelling-house 
 to the value of 51., by the owner of the house, was within the 7 tfe 8 
 G. 4, c. 29, «. 12. Where a lodger invited an acquaintance to sleep 
 at his lodgings without the knowledge of his landlord, and during 
 the night stole his watch from the bed's head, it was doubted, at the 
 trial, whether the lodger was not to be considered as the owner of 
 the house with respect to the prosecutor ; but the judges held that 
 the defendant was properly convicted of stealing in the dwelling- 
 house. R. Y. Taylor, R. (& R. 418. If the goods be under the pro- 
 tection of the person of the prosecutor at the time they are stolen, the 
 case will not be within the statute. As, for instance, where the 
 defendant procured money to be delivered to him for a particular 
 pm-pose and then ran away with it; R. v. Campbell, 2 Leach, 264; 
 and where the prosecutor, by the trick of ring-dropping, was induced 
 to lay down his money upon a table, and the defendant took it up 
 and carried it away; R. v. Owen, 2 Leach, 572; 2 East, P. C. 645; 
 these cases were holden not to be within the statute. For a case to 
 be within the meaning of the statute, it is necessary that the goods 
 
Larceny. 403 
 
 shoald be under the protection of the house, and be deposited in it 
 for safe custody. But property left at a house for a person supposed 
 to reside there, will be under the protection of the house, and the 
 stealing of it will be within the statute. Two boxes belonging to 
 A., who resided at 38, Eupert Street, were delivered by a porter 
 (whether by mistake or design did not appear) at No. 33 in the same 
 street; the owner of the house, imagining that they were for the 
 defendant, who lodged there, delivered them to him ; the defendant 
 converted the contents of the boxes to his own use, and absconded; 
 it was doubted at the trial whether the goods were sufficiently within 
 the protection of the dwelling-house to bring the case within the 
 statute, but the judges held that they were, and that the conviction 
 for the capital offence was therefore correct. R. v. Carroll, 1 Mood. 
 C. C. 89. If one, on going to bed, put his clothes and money by his 
 bed-side, these are under the protection of the dwelling-house, and 
 not of the person. B. v. Thomas, Car. Sup. 295. So, where a man 
 went to bed with a prostitute, having put his watch in his hat on a 
 table, and the woman stole the watch while he was asleep ; this was 
 held to be a stealing in the dwelling-house, and not a stealing from 
 the person. R. v. Hamilton, S C<& P. 49. It is a question for the 
 court, and not for the jury, whether goods are under the protection 
 of the dwelling-house, or in the personal care of the owner. R. v. 
 Thomas, supra. 
 
 Indictment for breaJcing and entering a Dwelling-house mth intent to 
 commit any Felony therein. 
 
 Commencement as ante, p. 313] — the dwelling-house of J. N., situate 
 
 in the parish of , in the county of , feloniously did break 
 
 and enter, with intent to commit a felony therein, to wit, the goods 
 and chattels of the said J. N. in the said dwelling-house then being, 
 then feloniously to steal, take and carry away; against the form of 
 the statute in such case made and provided. 
 
 Felony, 24 <fe 25 Vict. c. 96, s. 57; penal servitude for not more than 
 seven nor less than five [27 & 28 Vict. c. 47, s, 2, ante, p. 173] years, 
 or imprisonment not exceeding two years, with or without hard labour, 
 , and with or without solitary confinement (such confinement not exceeding 
 one month at any one time, nor three months in any one year, 24 cfc 25 
 Vict._ c. 96, «. 119, ante, p. 308).— 24 <& 25 Vict. c. 96, s. 57. As to 
 requiring the offender to enter into recognizances and find sureties for 
 keeping the peace, Id. s. 117 {amte,p. 307). 
 
 Evidence. 
 
 Prove that the prisoner broke and entered the dwelling-house in 
 question, and that it was at the time in the occupation of J. N., 
 and also the prisoner's intent to steal. Lastly, prove that the 
 dwelling-house is situate as described in the indictment. The intent 
 to steal may no doubt often be reasonably inferred from the mere 
 fact of breaking and entering. 
 
 Where the prisoner was indicted under the 24 & 25 Vict. c. 96, 
 s. 57, for breaking and entering a shop with intent to commit a 
 felony, viz. to steal, and it appeared that the prisoner broke in the 
 roof, intending to enter and steal, and was then disturbed, but there 
 was no evidence that he ever actually entered the shop, he was held 
 to have been rightly convicted of the misdemeanor of attempting to 
 commit a felony. R. v. Bain, L. & C. 129; 31 L. J. (if. C.) 88. 
 
404 Larceny, 
 
 BREAKING, ETC., A BUILDING WITHIN THE CUKTILAGE AND 
 STEALING THEREIN. 
 
 Statute. 
 24 & 25 Vict. c. 96, s. 55.] — Whosoever shall break and enter any 
 building, and commit any felony therein, such building being within 
 the curtilage of a dweUing-house, and occupied therewith, but not 
 being part thereof according to the provision hereinbefore men- 
 tioned (s. 53, cmte, p. 397), or being in any such building shall 
 commit any felony therein, and break out of the same, shall be 
 guilty of felony, and being convicted thereof shall be liable, at the 
 discretion of the court, to be kept in penal servitude for any term 
 not exceeding fourteen years, and not less than three years [now five 
 years, 27 c6 28 Vict. c. 47, s. 2, ante, p. 173], or to be imprisoned for 
 any term not exceeding two years, with or without hard labour, and 
 with or without solitary confinement. 
 
 Indictment. 
 
 Commencement as ante, p. 313] — a certain building of one J. N., 
 
 situate in the parish of , in the county of , feloniously did 
 
 break and enter (the said building then being within the curtilage 
 of the dwelling-house of the said J. N., thei-e situate, and by the said 
 J. N. then and there occupied therewith, and there being then and 
 there no communication between the said building and the said 
 dwelling-house, either immediate or by means of any covered and 
 enclosed passage leading from the one to the other), with intent 
 the goods and chattels of the said J. N. in the said building then 
 being, feloniously to steal, take and carry away, and that the said 
 J. S. then and there, in the said building, one silver watch, of the 
 goods and chattels of the said J. N., feloniously did steal, take and 
 carry away ; against the form [as ante, p. 347]. This count may he 
 added to an indictment for hurglary, housebreaking, or stealing in a 
 dwelling-house to the amount of five pounds, and should he added 
 whenever it is doubtful whether the building is in strictness a dwelling- 
 house. If the evidence fail to prove the actual stealing, but the break- 
 ing, entry and intent to steal be proved, the prisoner may be convicted 
 under this indictment of the felony described in 24 & 25 Vict. c. 96, 
 s. 57, ante, p. 398. 
 
 Felony: penal servitude for not more than fourteen nor less ihcm fimt 
 [27 & 28 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment not 
 exceeding ty;o years, with or unthout hard labour, and with or without 
 solitary confinement {such confinement not exceeding one month at any 
 one time, nor three months in any one year, 24 & 25 Vict. c. 96, s. 119, 
 ante, p. 308). — 24 & 25 Vict. c. 96, s. 55. As to requiring the offender 
 to enter into recognizances and find sureties for keeping the peace, Id. 
 s. in (ante, p. 307). 
 
 Evidence. 
 To support this indictment, you must prove that the defendant 
 broke and entered the building in question; that the building so 
 broken and entered was occupied, at the time when the offence was 
 committed, by J.. N. with his dwelling-house, and was within the 
 curtilage thereof; that the defendant there stole the goods, etc., 
 enumerated in the indictment; and that the building is situate as 
 described in the indictment. 
 
Larceny, 405 
 
 The breaking and entering must be proved in the same manner as 
 in burglary (vast, Sect. 4), except that it is immaterial whether it be 
 done in the day or night. If this proof fail, the defendant may be 
 convicted of simple larceny. 
 
 The building described in the statute is " any building -within the 
 curtilage of a dwelling-house, and occupied therewith, not being part 
 of the dwelling-house," that is, " not communicating with the dwell- 
 ing-house, either immediately or by means of a covered and enclosed 
 passage leading from the one to the other." To break and enter such 
 a building was, before the present statute, burglary, or housebreak- 
 ing ; and although this enactment, which expressly defines the build- 
 ing meant thereby to be a building within the curtilage, appears to 
 exclude many of those buildings which were formerly deemed parcel 
 of the dwelling-house, from their adjoining to the dwelling-house, 
 and being occupied therewith, although not within any common 
 enclosure or curtilage ; yet some of the cases decided upon these 
 subjects may afford some guide to the construction of the present 
 section. Where the defendant broke into a goose-house, which 
 opened into the prosecutor's yard, into which yard the prosecutor's 
 house also opened, and the yard was surrounded, partly by other 
 buildings of the homestead, and partly by a wall in which there was 
 a gate leading to the road, and some of the buildings had doors 
 opening into the lane, as well as into the yard, the goose-house was 
 holden to be part of the dwelling-house. S. v. Clayhum, R. & R. 
 360. Where the prosecutor's house was at the comer of the street, 
 and adjoining thereto was a workshop, beyond which a coach-house 
 and stable adjoined, all of which were used with the house, and had 
 doors opening into a yard belonging to the house, which yard was 
 surrounded by adjoining buildings, and was altogether enclosed, but 
 the shop had no internal communication with the house, had a door 
 opening into the street, and its roof was higher than that of the 
 house, the workshop was holden to be a parcel of the dwelling-house. 
 R. V. Chalking, R. & R. 334. So, a warehouse, which had a separate 
 entrance from the street, and had no internal communication with 
 the dwelling-house, with which it was occupied, but was under the 
 same roof, and had a back-door opening into the yard, into which the 
 house also opened, and which enclosed both, was holden to be part 
 of the dwelling-house. R. v. Lithgo, R. <S> R. 357. So, where in 
 one range of buildings the prosecutor had a warehouse and two 
 dwelling-houses, formerly one house, all of which had entrances 
 into the street, but had also doors opening into an enclosed yard 
 belonging to the prosecutor ; and the prosecutor let one of the houses 
 between his house and the warehouse together with certain ease- 
 ments in the yard ; it was holden that the warehouse was parcel of 
 the dwelling-house of the prosecutor ; it was so before the division 
 of the house, and remained so afterwards. R. v. Walters, 1 Mood. 
 C. C. 13. And where the dwelling-house of the prosecutor was in 
 the centre of a space of about an acre of land, surrounded by a 
 garden wall, the fi-ont wall of a factory, and the wall of the stable 
 yard, the whole being the property of the prosecutor, who used the 
 factory, partly for his own business and partly in a business in which 
 he had a partner ; and the factory opened into an open passage, into 
 which the outer door of the dwelling-house also opened; it was 
 holden that the factory was properly described as the dwelling-house 
 of the prosecutor. R.. y. Hancock, R. <& R. 110. See R. \. Egging- 
 ton, 2 Leach, 913 ; 2 Bos. <& P. 508. But a building separated from 
 
406 Lwremyi 
 
 the dwelling-house by a public thoroughfare cannot be deemed to 
 be part of the dwelling-house. R. v. Westwood^ R. & R. 495. So 
 neither is a wall, gate, or other fence, being part of the outward 
 fence of the curtilage, and opening into no building, but into the 
 yard only, part of the dwelling-house ; R. v. Bennett, R. & R. 289 ; 
 nor is the gate of an area, which opens into the area only, if there 
 be a door or fastening to prevent persons from passing from the area 
 into the house, although that door or other fastening may not be 
 secured at the time. R. v. Davis, R. & R. 322. Where the build- 
 ing broken into was in the fold-yard of the prosecutoi*'s farm, to get to 
 which from the house it was necessary to pass through another yard 
 called the pump-yard, into which the back-door of the house opened, 
 the pump-yard being divided from the fold-yard by a wall four feet 
 high, in which there was a gate, and the fold-yard being bounded on 
 all sides by the farm-buildings, a wall from the house, a hedge, and 
 gates ; it was held that the building was within the curtilage. R. v. 
 Gilbert, 1 C. & K. 84. 
 
 Prom analogy to the cases of iS. v. Peotrce and R. v. Rolinson, ante, 
 p. 62, it would seem to be unnecessary to negative, in the indict- 
 ment, that the building communicated with the dwelling-house, 
 either immediately or by means of a covered and enclosed way: and 
 from the same analogy it would seem that the defendant might be 
 convicted upon this indictment, though the building should appear 
 in fact to be part of the dwelling-house, and the evidence amount 
 to proof of a burglary. But as this point has not been directly de- 
 cided, the analogy between this and the cases alluded to may be 
 questioned; the prosecutor should therefore be pi'epared with evi- 
 dence to prove that the building did not so communicate with the 
 dwelling-house; and if it be doubtful whether the building be in fact 
 part of the dwelling-house, a count should be added for burglary or 
 housebreaking. 
 
 The larceny in the building must be proved in the same manner 
 as upon an indictment for housebreaking (ante, p. 399), or stealing 
 in a dwelling-house {ante, p. 402). 
 
 STEALING SILK, ETC., IN THE PKOCESS OF MANUPACTUKE. 
 
 24 S 25 Vict. c. 96, s. 62.] — Whosoever shall steal, to the value 
 of ten shillings, any woollen, linen, hempen, or cotton yam, 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 being convicted thereof 
 shall be liable, at the discretion of the court, to be kept in penal 
 servitude for any term not exceeding fourteen years and not less 
 than three years [now five years, 27 <& 28 Vict. c. 47, s. 2, ante, p. 173], 
 or to be imprisoned for any term not exceeding two years, with or 
 without hard labour, and with or without solitary confinement. 
 
 Indictment. 
 Commencement as ante, p. 313] — thirty yards of linen cloth, of the 
 
Larcmy. 407 
 
 value of twenty shillings (" to the value of ten shillings"), of the 
 goods and chattels of J. N., in a certain building (" buiMmg, field, or 
 
 other place"), of the said J. N., situate in the parish of , m the 
 
 county of- — , feloniously did steal, take and carry away, whilst the 
 same were laid, placed and exposed in the said building, during a 
 certain stage, process and progress of manufacture; against the form 
 [as ante, p. 347]. Other counts nwjy le added, stating the particular 
 process and progress of manufacture in. which the goods were when 
 
 Felony: penal servitude for not more than fourteen and n/}t less than 
 five [27 (& 28 Vict. c. 47, s. 2, ante,p. 173] years, or imprisonment for 
 not more than two years, with or without hard labour, and with or 
 vnthout solitary confinement {such confinement not exceeding one month 
 at any one time, nor three months in any one year, 24 d 26 Vict. c. 96, 
 s. 119, ante, p. 308).— 24 <& 26 Vict. c. 96, s. 62. As to requiring the 
 offender to enter into recognizances and fmd sureties for keeping the 
 peace, Id. s. 117 {ante, p. 307). 
 
 As to embezslement of materials or tools by persons employed in such 
 manufactures, see 6 t6 7 Vict. c. 40, ss. 2, 3, 11. 
 
 Evidence. 
 
 Prove the larceny as directed amte, p. 314 et seq., except that an 
 actual and not merely a constructive taking must be proved : prove 
 the value of the goods taken to be ten shillings at the least ; then 
 prove that they were stolen from the building, field, or other place 
 mentioned in the indictment, situate as described ; and, lastly, prove 
 that when stolen the goods were placed, laid, or exposed in the 
 building, etc., described, in a certain stage, process, or progress of 
 manufacture. 
 
 Where, upon an indictment on the repealed statute 18 (?. 2, c. 27, 
 for stealing yarn from a bleaching-ground, it appeared in evidence 
 that the yarn, at the time it was stolen, was in heaps, for the purpose 
 of being carried into the house, and not spread out for bleaching, 
 Thompson, B., held that the case was not within the statute. M. v. 
 Hughill, 2 Russ. 225. So, where the indictment was for stealing 
 calico, placed to be printed and dried in a certain building, it was 
 holden, that, in order to support a capital charge, it was necessary to 
 prove that the building from which the calico was stolen was used 
 either for drying or printing calico; -B. v. Dixon, R. d B. 53; but it 
 should be observed, that the repealed statute mentioned particularly 
 a building, etc., made use of by any calico printer, etc., " for printing, 
 whitening, booking, bleaching, or dyeing." Goods remain in a 
 " stage, process, or progress of manufacture," within the meaning of 
 the 7 (& 8 G. i, c. 30, s. 3, and therefore also within this statute, 
 though the texture be complete, if they be not yet brought into a 
 condition for sale. R. v. Woodhead, X M. & Rob. 549. 
 
 If you prove the larceny, but fail to prove the other circumstances, 
 so as to bring the case within the statute, the defendant may be 
 found guilty of the simple larceny only. 
 
 STEALING PROM VESSELS OE DOCKS, ETC. 
 
 24 di: 25 Vict. c. 96, s. 63.]— Whosoever shall steal any goods or 
 merchandise in any vessel, barge, or boat of any description what- 
 
408 Larceny. 
 
 soever, in any haven, or in any port of entry or discharge, or upon 
 any navigable river or canal, or in any creek or basin belonging to or 
 communicating with any such haven, port, river, or canal, or shall 
 steal any goods or merchandise from any dock, wharf, or quay adja- 
 cent to any such haven, port, river, canal, creek, or basin shall be 
 guilty of felony, and being convicted thereof shall be liable, at the 
 discretion of the court, to be kept in penal servitude for any term 
 not exceeding foiu-teen years and not less than three years [now five 
 years, 27 & 28 Vict. c. 47, s. 2, ante, p. 173], or to be imprisoned for 
 any term not exceeding two years, with or without hard labour, and 
 with or without solitary confinement. 
 
 Indictment for stealing from a Vessel on a navigable River. 
 
 Commencement as ante, p. 313] — twenty pounds weight of indigo, 
 ("am/ goods or merchandise,") of the goods and merchandise of J. N., 
 then being in a certain ship called the Rattler, (" vessel, hairge, or 
 boat, of any description whatsoever,") upon the navigable river Thames, 
 (" in any haven, or in any port of entry or discharge, or upon any 
 navigable river or canal, or in any creek or basin belonging to or com- 
 municating with any such haven, port, river, or canal,") in the said 
 ship feloniously did steal, take, and carry away; against the form \as 
 ante, p. 347]. 
 
 Felony : penal servitude for not more than fourteen nor less than 
 five [27 & 28 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment for 
 not more than two years, with or without hard labour, and viith or 
 without solitary confinement {such confinement not exceeding one month 
 at any one time, nor three months in any one year, 24 S 25 Vict. c. 96, 
 «. 119, ante, p. 308).— 24 <& 25 Vict. c. 96, s. 63. As to requiring 
 the offender to enter into recognizances and find sureties for keeping 
 the peace. Id. s. 117 {ante, p. 307). 
 
 Evidence. 
 
 Prove a larceny as directed ante, p. 314 et seq., except that you 
 must prove an actual and not merely a constructive taking. The 
 words " goods, wares, and merchandise," in the repealed statute 24 
 G. 2, e. 45, were holden to extend to such goods, etc. only as are 
 usually lodged in vessels, or on wharves and quays. R. v. Grimes, 
 Post. 79, n. : R. v. Leigh, 1 Leach, 52. The same may be said of the 
 present statute, by reason of the substitution of the words " goods and 
 merchandise " for the words " chattel, money, or valuable security," 
 which are used in other parts of the act. The luggage of a pas- 
 senger going by a steam-boat is within the statute. R. v. Wright, 
 1 G. &P. 159. Prove that the goods, etc., were at the time in the 
 ship described in the indictment. The words of the statute are, " in 
 any vessel," etc.; and it is therefore immaterial whether the de- 
 fendant succeeded in taking the goods from the ship or not, if there 
 was a sufficient asportation in the ship to constitute larceny. A man 
 cannot be guilty of this offence in his own ship. R. v. Madox, B. & 
 R. 92. Lastly, prove that the ship was at the time upon the river, 
 etc., mentioned in the indictment. This is matter of local descrip- 
 tion, and a variance in this respect between the statement and proof 
 wiU be fatal unless amended. Where it was laid to be committed in 
 a barge on the river Thames, and proved to have been committed in 
 a barge lying aground on the bank of one of the creeks of the river, 
 
■Larceny. 409 
 
 namely, Limehouse-dock, it was holden to be a fatal variance. R. 
 v. Pt&e, 1 Leach, 417. 
 
 If you pMve a larceny, but fail in proving the other circumstances 
 requisite to bring the case within the statute, the defendant may be 
 convicted of the simple larceny. 
 
 Indictmerd for stealing from a DocJc, etc. 
 
 Commencement as ante, p. 313]— twenty pounds weight of indigo 
 (" amy goods or merchandise"), of the goods and merchandise of J. N., 
 then being in and upon a certain dock ('^ dock, wharf or quay"), 
 adjacent to a certain navigable river called the Thames (" adjacent to 
 any haven, port," etc. : see the last precedent), from the said dock 
 feloniously did steal, take, and cany away ; against the form [as ante, 
 p. 347]. 
 
 Felony, 24 cfe 25 Vict. c. 96, s. 63. See the last precedent. 
 
 Evidence. 
 
 Prove the larceny as directed ante, p. 314 et seq., except that there 
 must be an actual and not merely a constructive taking. The goods 
 must be such as are usually deposited upon docks, etc., for shipment, 
 safe custody, or the like. Prove that the goods were taken /ram the 
 dock, etc.; for which purpose a mere removal, such as would be 
 sufficient to constitute simple larceny, wOl not suffice, for the words 
 of the statute are, "from any dock," etc., to satisfy which there 
 must be an actual removal from the dock, etc., in the same manner 
 as upon an indictment for stealing from the person (post). Lastly, 
 prove that the dock, etc., from which the goods were taken, is 
 adjacent to the navigable river, etc. This, as we have seen in the 
 last case, is a matter of local description, and must be proved strictly 
 as laid. 
 
 If you prove the larceny, but fail in proving any of the other 
 circumstances necessary to bring the case within the statute, the 
 defendant may be convicted of the simple larceny. 
 
 ROBBERY, ETC. 
 
 Statutes. 
 24 <& 25 Vict. c. 96, s. 40 — Robbery and Stealing from the Person.'] — 
 Whosoever shall rob any person, or shall steal any chattel, money, or 
 valuable security from the person of another, shall be guilty of felony, 
 and being convicted thereof shall be liable, at the discretion of the 
 court, to be kept in penal servitude for any term not exceeding four- 
 teen years, and hot less than three years \now five years, 27 dc 28 Vict. 
 c. 47, s. 2, ante, p. 173], or to be imprisoned for any term not exceed- 
 ing two years, with or without hard labour, and with or without 
 solitary confinement. 
 
 Sect. 41 — Conviction for Assault with intent to rob, on Indictment 
 for Robbery.] — If upon the trial of any person upon any indictment 
 for robbery it shall appear to the jury upon the evidence that the de- 
 fendant did not commit the crime of robbery, but that he did commit 
 
 w. T 
 
410 Larceny. 
 
 an assault with intent to rob, the defendant shall not by reason thereof 
 be entitled to be acquitted, but the jury shall be at fiberty to return 
 as their verdict that the defendant is guilty of an assault with intent 
 to rob, and thereupon such defendant shall be liable to be punished 
 in the same manner as if he had been convicted upon an indictment 
 for feloniously assaulting with, intent to rob ; and no person so tried 
 as is herein lastly mentioned shall be liable to be afterwards prose- 
 cuted for an assault with intent to commit the robbery for which he 
 was so tried. 
 
 Sect. 42 — Assaullmg with intent to ro6.] — Whosoever shall assault 
 any person with intent to rob shall be guilty of felony, and being 
 convicted thereof shall (save and except in the cases where a greater 
 punishment is provided by this act) be liable, at the discretion of 
 the court, to be kept in penal servitude for the term of three years 
 [now flee years, 27 S 28 Vict. c. 47, s. 2, ante, p. 173], or to be im- 
 prisoned for any term not exceeding two years, with or without hard 
 labour, and with or without solitary confinement. 
 
 Sect, 43 — Robbery, etc., vdth Violence.'] — Whosoever shall, being 
 armed with any offensive weapon or instrument, rob or assault with 
 intent to rob any person, or shall, together with one or more other 
 person or persons, rob or assault with intent to rob any person, or 
 shall rob any person and, at the time of or immediately before or im- 
 mediately after such robbery, shall wound, beat, strike, or use any 
 other personal violence to any person, shall be guilty of felony, and 
 being convicted thereof shall be liable, at the discretion of the court, 
 to be kept in penal servitude for Hfe, or for any term not less than 
 three years [now flee years, 27 & 28 Vict. c. 47, s. 2, ante, p. 173], or 
 to be imprisoned for any term not exceeding two years, with or 
 without hard laboiur, and with or without solitary confinement. 
 
 26 di 27 Vict. c. 44 — Power to ojwarA pvmishnent of Whipjmg.] — 
 After reciting 24 <fr 25 Vict. c. 96, «. 43, and 24: d; 25 Vict. c. 100, s. 21, 
 enacts that where any person is convicted of a crime under either of 
 the said sections, the court before whom he is convicted may, in 
 addition to the punishment awarded by the said sections or any part 
 thereof, direct that the offender, if a male, be once, twice, or thrice 
 privately whipped, subject to the following provisions : — 1. That, in 
 the case of an offender whose age does not exceed sixteen years, the 
 number of strokes at each such whipping do not exceed twenty-five, 
 and the instrument used shall be a birch rod: 2. That, in the case of 
 any other male offender, the number of strokes do not exceed fifty at 
 each such whipping : 3. That in each case the court in its sentence 
 shall specify the number of strokes to be inflicted and the instrument 
 to be used : Provided, that in no case shall such whipping take place 
 after the expiration of six months fi-om the passing of the sentence; 
 provided also, that every such whipping to be inflicted on any person 
 sentenced to penal servitude shall be inflicted on him before he shall 
 be removed to a convict prison, with a view to his undergoing his 
 sentence of penal servitude. 
 
 24 (& 25 Vict. c. 96, s. 44 — Sending Letter dema/nding Money, etc., 
 with Menaces.'] — Whosoever shall send, deliver, or utter, or directly 
 or indirectly cause to be received, knowing the contents thereof, any 
 letter or writing demanding of any person with menaces, and without 
 
Larceny. 411 
 
 any reasonable or probable cause, any property, chattel, money, 
 valuable security, or other valuable thing, shall be guilty of felony, 
 and being convicted thereof shall be liable, at the discretion of the 
 court, to be kept in penal servitude for life, or for any term not less 
 than three years [new five years, 27 & 28 Viet. c. 47, s. 2, ante, 
 p. 173], or to be imprisoned for any term not exceeding two years, 
 with or without hard labour, and with or without solitary confine- 
 ment, and, if a male under the age of sixteen years, with or without 
 whipping. 
 
 Seet. 4:5— Demanding Money, etc., with Menaces or by Force.] — 
 Whosoever shall with menaces or by force demand any property, 
 chattel, money, valuable security, or other valuable thing of any per- 
 son, with intent to steal the same, shall be guilty of felony, and being 
 convicted thereof shall be liable, at the discretion of the eotirt, to be 
 kept in penal servitude for the term of three years [now five years, 
 27 <i 28 Viet. c. 47, s. 2, ante, p. 173], or to be imprisoned for any 
 term not exceeding two years, with or without hard labour, and with 
 or without solitary confinement. 
 
 Sect. 46 — Sending Letter threatening to accuse of Crime, mth intent 
 to extort.] — Whosoever shall send, deliver, or utter^ or directly or in- 
 directly cause to be received, knowing the contents thereof, any letter 
 or writing accusing or threatening to accuse any other person of any 
 crime punishable by law with death or penal servitude for not less 
 than seven years, or of any assault with intent to commit any rape, 
 or of any attempt or endeavour to commit any rape, or of any in- 
 famous crime as hereinafter defined, with a view or intent in any of 
 such cases to extort or gain by means of such letter or writing any 
 property, chattel, money, valuable security, or other valuable thing, 
 from any person, shall be guilty of felony, and being convicted 
 thereof shall be liable, at the discretion of the court, to be kept in 
 penal servitude for life, or for any term not less than three years 
 [now five years, 27 & 28 Vidt. e. 47, s. 2, ante, p. 173], or to be impri- 
 soned for any term not exceeding two years, with or without hard 
 labour, and with or without solitary confinement, and, if a male 
 under the age of sixteen years, with or without whipping ; and 
 the abominable crime of buggery, committed either with mankind 
 or with beast, and every assault with intent to commit the said 
 abominable crime, and every attempt or endeavour to commit the 
 said abominable crime, and every solicitation, persuasion, promise, 
 or threat offered or made to any person whereby to move or 
 induce such person to commit or permit the said abominable crime, 
 shall be deemed to be an infamous crime within the meaning of 
 this act. 
 
 Sect. iT— Accusing or threatening to accuse, with intent to extort.] — 
 Whosoever shall accuse or threaten to accuse, either the person to 
 whom such accusation or threat shall be made or any other person, 
 of any of the infamous or other crimes lastly hereinbefore mentioned, 
 with the view or intent in any of the cases last aforesaid to extort or 
 gain from such person so accused or threatened to be accused, or 
 from any other person, any property, chattel, money, valuable secu- 
 rity, or other valuable thmg, shall be guilty of felony, and being con- 
 victed thereof shall be liable, at the discretion of the court, to be kept 
 m penal servitude for life, or for any term not less than three years 
 
 t2 
 
412 Larceny. 
 
 {now five years, 27 & 28 Vict. c. 47, s. 2, ante, p. 173], or to be impri- 
 soned for any term not exceeding two years, with or witiiout hard 
 labour, and, if a male under the age of sixteen years, with or without 
 whipping. 
 
 Sect. 48 — Inducing aPerson by Violence or Threats to executeDeedi, 
 etc., with intent to defraud.'] — Whosoever, with intent to defraud or 
 injure any other person, shall, by any unlawftd violence to or re- 
 straint of, or threat of violence to or restraint of, the person of 
 another, or by accusing or threatening to accuse any person of any 
 treason, felony, or infamous crime as hereinbefore defined, compel or 
 induce any person to execute, make, accept, indorse, alter, or destroy 
 the whole or any part of any valuable security, or to write, impress, 
 or affix his name, or the name of any other person, or of any com- 
 pany, firm, or co-partnership, or the seal of any body corporate, com- 
 pany or society, upon or to any paper or parchment, in order that the 
 same may be afterwards made or converted into, or used or dealt 
 with as, a valuable security, shall be guilty of felony, and being con- 
 victed thereof shall be liable, at the discretion of the court, to be 
 kept in penal servitude for life, or for any term not less than three 
 years [now five years, 27 S 28 Vict. c. 47, s. 2, ante, p. 173], or to be 
 imprisoned for any term not exceeding two years, with or without 
 hard labour, and with or without solitary confinement. 
 
 Sect. 49 — Immaterial from whom the Menaces proceed.'] —It shall be 
 immaterial whether the menaces or threats hereinbefore mentioned 
 be of violence, injury, or accusation to be caused or made by the 
 offender or by any other person. 
 
 Sect. 1 — Property, what] — Ante, p. 302. 
 
 Indictment for Robbery with Violence. 
 
 Commencement as ante, p. 313] — in and upon one J. N. feloniously 
 did make an assault, and him the said J. N. in bodily fear and danger 
 of his life then feloniously did put, and the moneys of the said J. N., 
 to the amount of ten pounds, and one gold watch, of the goods and 
 chattels of the said J. N., from the person and against thewiUofthe 
 said J. N. then feloniously and violently did steal, take and carry 
 away; and that the said J. S. immediately before he so robbed the 
 said J. N. as aforesaid (" at the time of, or immediately before, or im- 
 Tnediately after such robbery^') the said J. N. feloniously did wound 
 Q^wound, beat, strike, or use any other personal violence to such person ); 
 against the form [as ante, ^.347]. The particular place where the 
 robbery was committed ought not to be stated, but if it be, and be staied 
 incorrectly, it viill be immaterial. (See ante, p. 50.) 
 
 Felony : penal servitude for life or for any term not less than five 
 [27 & 28 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment for 
 not more than two years, with or without hard labour, and with or 
 witiiout solitary confinement {such confinement not exceeding one mmth 
 at any one time, nor three months in any one year, 24 & 25 Vict. c. 96, 
 s. 119, ante, p. 308).— 24 & 25 Vict. c. 96, s. 43. The court before 
 which the prisoner is convicted may also, in addition to the punishment 
 of penal servitude or imprisonment, direct that if a male, he be ome, 
 twice, or thrice privately whipped, subject to the follovmg provisions:— 
 
Larceny. 413 
 
 1. In the case of an offender whose age does not exceed sixteen years, 
 the number of strokes at each whipping shall not exceed twenty -five, and 
 the instrument used shall he a Urch rod:. 2. In the case of any other 
 male offender the number of strokes shall not exceed fifty at each whip- 
 ping: 3. In each case the court in its sentence shall specify the number 
 of strokes and the instrument to be used. The whipping is not to take 
 place after the expiration of six months from the passing _ of the sentence, 
 and in the case of a person sentenced to penal servitude, is to be infiicted 
 before his removal to a convict prison. 26 c6 27 Vict. e. 44, ante, p. 
 410. As to requiring the offender to enter into recognizances and find 
 sureties for keying the peace, see 24 c6 25 Vict. c. 96, s. 117, ante, p. 
 307. 
 
 This offence is not triable at quarter sessions. 5 (& 6 Vict. C..38, s. 1 
 (ante, p. 104). 
 
 Evidence. 
 Robbery, as defined by legal -writers, consists in the felonious and 
 forcible taking from the person of another, or in his presence against 
 his will, of any money or goods to any value, by violence, or putting 
 him in fear. 4 Bl. Com. 243; 1 Hawk. P. C. 95. And in order to 
 maintain this indictment, you must prove a larceny, and prove it to 
 have been committed under the circumstances which, together with 
 it, constitute the offence of robbery, and which we shall now consider 
 under the following heads : — 
 
 In bodily Fear, etc.l — The prosecutor must either prove ' that he 
 was actually in bodily fear, from the defendant's actions, at the time 
 of the robbery, or lie must prove circumstances from which the court 
 and jniy may presume such a decree of apprehension of danger as 
 would induce the prosecutor- to part with his property; Fost. 128; 
 and in this latter case, if the circumstances thus proved be such as 
 are calculated to create such a fear, the court will not pursue the in- 
 quiry iiirther, and examine whether the fear actually existed. There- 
 fore, if a man knocks another do-wn, and steal from him his property 
 whilst he is insensible on the ground, this is robbery. Post. 128. A 
 stage-coach having frequently been robbed on a particular road, J. N. 
 went in it for the purpose of apprehending the robber ; the robber 
 met the coach, pi-esented a pistol) and demanded money of the pas- 
 sengers; J. N. delivered his money, but immediately afterwards 
 jumped out of the coach, and, with the assistance of others, secured 
 the robber; and this was holden to be robbery. Fost. 129. Where 
 the defendant tore a lady's ear through, in snatching an earring 
 from it, the judges held it to be robbery. B. v. Lapier, 1 Leach, 320. 
 So, where the defendant tore some hf.irfrom a lady's head in snatch- 
 ing a diamond pin from it, the pin having a corkscrew stalk, and being 
 twisted very much in her hair, this was holden to be robbery. B. v. 
 Moore, 1 Leach, 335. Where the defendant laid hold of the seals 
 and chain of the prosecutor's watch, and pulled the watch out of his 
 fob, but the watch, being secured by a steel chain which went round 
 the prosecutor's neCk, the defendant could not take it until, by pull- 
 ing and two or three jerks, he broke the chain, and them ran off with 
 the watch, this was holden to be robbery. B. v. Mason, B. <& B. 
 419. So, if there be a struggle for the property, and it be wrested 
 from the prosecutor by superior force, it will be robbery. B. v. 
 Davies, 2 East, P. C. 709. But merely snatching property from a 
 person unawares, and running away with it, will not be robbery. B. 
 
414 Larceny. 
 
 V. Steward, 2 East, P. C. 702 : R. v. Homer, Id. 703 : R. v. Baher, 
 1 Leach, 290: 5. v. RoUns, Id. n. : R. v. Macauley, Id. 287: A v. 
 Walls, 2 C.d K. 214, because fear cannot in fact be presumed in 
 such a case. Where the prisoner caught hold of the prosecutor'a 
 watch-chain, and jerked his watch from his pocket with considerable 
 force, upon which a scuffle ensued, and the prisoner was secured, 
 Oarrow, B., held that the force used to obtain the watch did not 
 make the offence amount to robbery, nor did the force used after- 
 wards in the scuffle; for the force necessarjr to constitute robbery- 
 must be either immediately before or at the time of the larceny, and 
 not after it. R. v. Gnosil, 1 C. & P. 304. The rule, therefore, 
 appears to be well established, that no sudden taking or snatching 
 of property imawares from a person is sufficient to constitute robbery 
 unless some injury be done to the person, or there be a previous 
 struggle for the possession of the property, or some force used to 
 obtain it. 
 
 If a man take another's child, and threaten to destroy him unless 
 the other give him money, this is robbery. Per Eyre, C. J., in R. v. 
 Reave, 2 East, P. C. 735, 736: and see R. v. Donolly, Id. 715, 718. 
 So, where the defendant, at the head [of a mob, came to the pro- 
 secutor's house and demanded money, threatening to destroy the 
 house unless the money were given, the prosecutor thereupon gave 
 him 5s., but he insisted on more, and the prosecutor, being terrified, 
 gave him 5s. more; the defendant and the mob then took bread, 
 cheese and cider from the prosecutor's house, without his permission, 
 and departed, this was holden to be a robbery. R. v. Simons, 2 
 East, P. C. 731: R. v. Brown, Id. So where, during some riots at 
 Birmingham, the defendant threatened the prosecutor that unless he 
 would give him a certain sum of money he should return with the 
 mob and destroy his house, and the prosecutor, under the impression 
 of this threat, gave him the money, this was holden by the judges to 
 be robbery. R. v. Astley, 2 East, P. C. 729. So where, in the riots 
 of 1780, a mob, headed by the defendant, came to the prosecutor's 
 house and demanded half-a-crown, which the prosecutor, from terror 
 of the mob, gave, this was holden to be robbery, although no threats 
 were uttered. R. v. Ta/plin, 2 East, P. C. 712. 
 
 Upon an indictment -for robbery, it appeared that a mob came to 
 the house of the prosecutor, and with the mob the prisoners, who 
 advised the prosecutor to give them something to get rid of them, 
 and prevent mischief, by which means they obtained money from 
 the prosecutor; and Parke, J. (after consulting Vaughan, B., and 
 Alderson, J.) admitted evidence of the acts of the mob at other places 
 before and after on the same day, to show that the advice of the 
 prisoners was not bond fide, but in reality a mere mode of robbing the 
 prosecutor. R. v. Winhworth, i C. <& P. 444. 
 
 Obtaining money under a threat of charging the prosecutor with 
 an unnatural crime had in many cases been holden to be robbeiy; 
 R. V. Jones, 1 Leach, 139 ; 2 East, P. C. 714: R. v. Donolly, 1 Leach, 
 193; 2 East, P. C. 716: R. v. Cannon, R. & R. 146; even where it 
 appeared that the prosecutor parted with his money from a fear 
 merely of losing his character or situation by such an imputation. 
 R. V. Eichmam, 1 Leach, 278: R. v. Egerton, R. & R. 315 : see B. v. 
 Elmstead, 1 Russ. 894. By stat. 24 & 25 Vict. c. 96, s. 47 (re-enacting 
 7 TT. 4 (6 1 Vict. c. 87,. «. 4) whosoever shall accuse or threaten to 
 accuse any person of " the abominable crime of buggery, committed 
 either with mankind or with beast," or of any " assault with intent to 
 
Larceny. 415 
 
 commit the said abominable crime," or of any " attempt or endeavour 
 to commit the said abominable crime," or of any " solicitation, per- 
 suasion, promise or threat oflfered or made to any person, whereby to 
 move or induce such person, to commit or permit the said abominable 
 crime," (see R. v. Hiohman, 1 Mood. C. C. 34,) with a view or intent 
 to extort or gain from any person any property, etc., shall be guilty 
 of felony, and punishable with penal sexTitude or imprisonment as 
 therein mentioned {ante, p. 411). And it would seem that where by 
 such accusation or threat any property is actually obtained, the 
 offender may still be indicted for robbery., See R. v. Stringer, 2 
 Mood. C. C. 261. "Where the property is parted with by threats to 
 accuse, other than those specified in the statute, the indictment may 
 also be for robbery, if the party was put in fear, and parted with his 
 property in consequence. R. v. Norton, 8 C. & P. 671. See post, 
 for am mdictment on the above section. 
 
 Where the prosecutrix was threatened by some person at a mock 
 auction to be sent to Bow-street, and from thence to Newgate, unless 
 she paid for some article they pretended was knocked down to her 
 although she never bid for it ; and they accordingly called in a pre- 
 tended constable, who told her that unless she gave him a shilling 
 she must go with him ; and she gave him a shilling accordingly, not 
 from any apprehension of personal danger, but from a fear of being 
 taken to prison ; the judges held that the circumstances of the case 
 were not sufficient to constitute the offence of robbery; it was 
 nothing more than a simple duress. R. v. Skewland, 2 Leach, 721 : 
 R. v. Wood, 2 East, P. 0. 732. It would seem, however, that a 
 similar state of facts would sustain an indictment under 24 S 25 
 Vict. c. 96, s. 46, ante, p. 411 ; R.y. Robertson, L. S C. 483? 34 i. J. 
 (M. C.) 36, post, and that it would also sustain an indictment for 
 simple larceny. R. v. Macgrafh, L. R., 1 C C. R. 205 ; . 39 Z. J. 
 (M. C.) 7, ante, p. 339. Where the defendant, with an intent to take 
 money from a prisoner who. was under his charge for an assault, 
 handcuffed her to- another prisoner, kicked and beat her whilst thus 
 handcuffed, put her into a hackney-coach for the purpose of carrying 
 her to prison, and then took four shillings from her pocket for the 
 purpose of paying the coach-hire;.- the jury finding that the de- 
 fendant had previously the intent of getting from the prosecutrix 
 whatever money she had, and that he used all this violence for the 
 purpose of carrying his intent into- execution, the judges held clearly 
 that this was robbery. R. v. Gascoigne, 2 East, P. C. 709. Even 
 in a case where it appeared that the defendant attempted to commit 
 a rape upon the prosecutrix, and she, without any demand from him, 
 gave him some money to desist, which he prat into his pocket, and 
 then continued his attempt until he was interrupted ; this was 
 holden by the judges to be robbery. R. v. Blaehham, 2 East, P. C. 
 
 And it is of no_ importance under what pretence the robber obtains 
 the money, etc., if the prosecutor be forced to deliver it from actual 
 fear, or under circumstances from which the court can presume it. 
 As, for instance, if a man with a sword drawn ask alms of me, and I 
 give it him through mistrust and apprehension of violence, it is as 
 much a robbery as if he had demanded money in the ordinaiy way. 
 iBl. Com. 242_. So, if thieves come to rob A., and finding little upon 
 him, enforce him by menace to swear to bring them a greater sum, 
 which he does accordingly, this is robbery, if, at the time he delivered 
 the money, the fear of the menace continued to operate upon him. 
 
416 Larceny. 
 
 Fitz. Cor. PI. 464; EaU, 53. Where the defendant, at the head of 
 a riotous mob, stopped a cart laden with cheeses, insisting upon 
 seizing them for a want of a permit ; after some altercation he went 
 with the driver, under pretence of going before a magistrate, and 
 during their absence the mob pillaged the cart ; this was holden to 
 be a robbery. Merriman '^..Hundred of Chippefrtham, 2 East, P. C. 
 709. So, where the defendant took goods from the prosecutrix of 
 the value of eight shillings, and by force and threats compelled her 
 to take one shilling, under pretence of payment for them ; this was 
 holden to be robbery, if. v. Simons, 2 East, P. C. 712 : and see R. v. 
 Spencer, Id. 
 
 The fear must precede the taking. For, if a man privately steal 
 money from the person of another, and afterwards keep it by putting 
 him in fear, this is no robbery, for the fear is subsequent to the 
 taking. B. v. Harman, 1 Hale, 634; 1 Hawh. c. 34, s. 7; see R. v. 
 Gnosil, 1 a & P. 304 (ante, p. 414). 
 
 One gold Watch, etc.] — The property taken must be such as may 
 be the subject of larceny {see ante, p. 316), and must be proved to be 
 the absolute or special property of the person named in the indict- 
 ment. {See ante, p. 321.) Where a servant who was sent by his 
 master to receive money was robbed of the money on his return 
 home, Alderson, B., doubted whether it could be properly described 
 as the money of the master, and discharged the juiy, that another 
 indictment might be preferred. R. v. Rudich, 8 C. <& P. 237 (see 
 ante, p. 322). The value is immaterial. 1 Sale, 532. But the goods 
 must be of some value to the party robbed; and, therefore, where the 
 defendant compelled the prosecutor, by threats, to sign a promissory 
 note for a sum of money, it was holden by the judges not to be a 
 robbery, because the note was of no value to the prosecutor. R. v. 
 Phipoe, 2 Leach, 673 ; 2 East, P. C. 599 ; and see R. v. Edwards, 6 
 a (& P. 515, 521 ; and R. v. Smith, 2 Den. 449; 21 L. J. (M. C.) 111. 
 Under such circumstances, however, the defendant might now be 
 indicted for the felony described in 24 d 25 Vict. c. 96, s. 48, ante, 
 p. 412. In B. V. Bingley, 5 C. <& P. 602, the prisoner attacked the 
 prosecutor, and took from him a piece of paper, containing a memo- 
 randum of money that a person owed him, and Grumey, B., held it 
 sufficient to constitute robbery. 
 
 From the Person, etc.] — The goods must be proved to have been 
 taken either from the person of the prosecutor, or in his presence. 
 See R. V. Francis, 2 Str. 1015 : B. v. Cfrey, 2 East, P. C. 708 : R. v. 
 Hamilton, 8 C. S P. 49. If a thief put a man in fear, and then in 
 his presence drive away his cattle, it is robbery. 1 Hale, 533. So, 
 if a man, assaulted by a robber, throw his purse into a bush, or 
 flying from a robber, let fall his hat, and the robber, in his presence, 
 take up the purse or hat and carry it away; this would be robbery. 
 Id. Upon an indictment for robbery, it appeared that the prosecutor 
 was in company with another, who had the prosecutor's bundle, and 
 who, upon the prosecutor being attacked with great violence by the 
 prisoner, dropped down the bundle and ran to the prosecutor's 
 assistance, when one of the prisoners took up the bundle, and ran 
 off with it : Vaughan, B., is reported to have held that this was not 
 robbery, because the bundle was not in the prosecutor's possession 
 at the time. R. v. Fallows, 5 C. (& P. 508 ; sed qucere. 
 
Larceny. 417 
 
 Against the willl — It must appear in evidence that the goods were 
 taken against the will of the party robbed ; that is, that they were 
 either taken from him by force and violence, or delivered up by him 
 to the defendant, under the impression of that degree of fear and 
 apprehension which is necessary to constitute robbery. Therefore, 
 where the pai'ty robbed concerted and connived at the robbery, and 
 got one of his confederates to procure two strangers to commit it, for 
 the purpose of getting a reward upon the apprehension and convic- 
 tion of the strangers, the judges held that it was not a robbery, 
 because the property was not taken against the party's will. R. v. 
 M'Daniel, Fast. 121, 128. 
 
 Feloniously.] — The goods must appear to have been taken animo 
 y«mrf, as in other cases of larceny. (Seeante,p.325.'), And there- 
 fore, if a man, by force or threats, compel another to give him goods 
 he has to sell, and give him in retiurn money to the amount of the 
 value of the goods, it is very doubtful whether this be robbery ; 1 
 Hawh. P. C. c. 34, s. 14 ; although undoubtedly it would be, if the 
 goods were of greater value than the money given for them. If a 
 person, under a land fide impression that the property is his own, 
 obtain it by menace, that is a trespass, but not robbery. B. v. Hall, 
 iC.&P. 409. 
 
 Violently.'] — It is not necessary to prove that the goods were taken 
 by actual violence or force ; proof that they were d«Uvered to the 
 defendant by the party robbed, under the impression of that degree 
 of fear and apprehension necessary to constitute robbery will be 
 sufScient. (See orafej^j). 413— 416.) 
 
 Take amd carry away.]— An. actual taking either by force or upon 
 delivery must be proved; that is, it must appear that the robber 
 actually^ got possession of the goods. Therefore,, if a robber cut a 
 man's girdle in order to get his purse, and the purse thereby fall to 
 the ground, and the robber run off or be apprehended before he can 
 take it up ; this would not be robbery, because the purse was never 
 in the possession of the robber. 1 Eale, 533. But it is immaterial 
 whether the taking were by force or upon delivery ; and if by de- 
 livery, it is also immaterial whether the robber have compelled the 
 prosecutor to it by a direct demand in the ordinary way, or upon 
 any colorable pretence. {See ante, pp. 413 — 416.) 
 
 A carrying away must also be proved, as in other cases of larceny. 
 {See ante, p. 345.) And, therefore, where the defendant, upon meet- 
 ing a man carrying a bed, told him to lay it down or he would shoot 
 him, and the man accordingly laid down the bed, but the robber, 
 before he could take it up so as to remove it from the place where it 
 lay, was apprehended ;■ the judges held that the robbery was not 
 complete. R. v. Farrell, 1 Leach, 362, n. (a). But where the de- 
 fendant snatched at a lady's earring, and succeeded in separating it 
 from the ear, and it was aftei-wards found among the curls of her 
 hair ; the court held this a sufficient proof of asportation to support 
 the indictment. R. v. Lapier, 1 Leach, 320. 
 
 It may be necessary to add here, that if the property be once 
 taken, the offence will not be purged by the robber's delivering it 
 back to the owner. 1 Hale, 633 ; 1 Hawk. c. 34, s. 2 : R. v. Peat, 
 1 Leach, 228; 2 East, P. C. 557. 
 
 T 5 
 
418 Larceny. 
 
 And that the said J. S. immediately before, etc., etc., did wownd, etc.] 
 — Prove that the defendant either immediately before, at the time 
 of, or immediately after the robbery, according to the allegation, 
 bounded, beat, etc. the prosecutor, as the case may be. As to the 
 nature of the evidence necessary to sustain the allegation of a 
 wounding, see post, Chap. II., Sect. 3. What period of time can be 
 comprised within the words " immediately before," or " immediately 
 after," will be a question for the court. 
 
 If the prosecutor should fail to prove the wounding, etc., it would 
 seem that the prisoner may be convicted of the robbery, and have 
 sentence for the minor offence accordingly. And if he should fail to 
 prove a robbery, but should prove an assault with intent to rob, the 
 defendant may, on this indictment, be convicted of such assault, and 
 have sentence accordingly ; 24 tfc 25 Viet. c. 96, «. 41, amte, p. 409. 
 And wherever a robbery with aggravated circumstances, i. e., by a 
 person armed, or by several persons together, is charged in the 
 indictment, the jury may convict of an assault with intent to rob 
 attended with the like aggravation, and the defendant may, upon 
 such conviction, be sentenced to penal servitude for life, etc., under 
 the 24 <& 25 Vict. c. 96, ss. 41, 43 : the assault following the nature 
 of the robbery. B. v. Mitchell, 2 Den. 468 ; 21 L. J. {M. C.) 135 ; 
 see Dears. 19, note. 
 
 Indictment for Bobbery by a Person armed. 
 
 Commencement as ante, p. 313] — being then armed with a certain 
 offensive weapon and instrument, to wit, a bludgeon, in and upon 
 one J. N. feloniously did make an assault, and him the said J. N. in 
 bodily fear and danger of bis life then feloniously did put, and a sum 
 of money, to wit, the sum of ten pounds, and one gold watch of the 
 goods, moneys, and chattels of the said J. N., from the person and 
 against the will of the said J. N., then feloniously and violently did 
 steal, take, and carry away; against the form [as ante, p. 347]. 
 
 Felony, 24 c& 25 Vict. c. 96, s. 43. See the last precedent. 
 
 This offence is not triable at quarter sessions, 5 <£ 6 Vict. c. 38, s. 1 
 {ante, p. 104). 
 
 Evidence. 
 
 The evidence to support this indictment will be the same as in 
 ordinary cases of I'obbery (see ante, p. 413 et seq.), with the addi- 
 tional proof that the prisoner, at the time of the robbery, was armed 
 with an offensive weapon or instrument. As to what will amount to 
 an offensive weapon or instrument, see the cases referred to under 
 the heads Smuggling, and Offences relating to Game, post. If the 
 offence were committed by several persons, and one of them were 
 armed, the others being present aiding and- abetting, it would seem 
 that that would be sufficient to convict them all of the whole charge 
 in the indictment. See B. v. Smith, B. c6 B. 368. The defendant 
 may be convicted of the robbery only, or of an assault with intent to 
 rob. Svpra. 
 
 An indictment for robbery by two or more persons in company vM 
 he the same as an indictment for robbing ahne (see infra), except that 
 it should charge that the defendants together robbed the prosecutor; if 
 one of them only be apprehended, it will charge him by name, " and a 
 certain other person [or, certain other persons] to the jurors afore- 
 said unknown," etc. 
 
Larceny. 419 
 
 Indictment for Robbery. 
 
 Commencement as ante, p. 313] — in and upon one J. N. feloniously 
 did make an assault, and him the said J. N. in bodily fear and danger 
 of his life then feloniously did put, and the moneys of the said J. N., 
 to the amount of ten pounds, from the person and against the will of 
 the said J. N., then feloniously and violently did steal, take, and carry 
 away ; against the form [as ante, p.Sil]. The indictment may charge 
 the defendant with having assaulted several persons, and stolen different 
 sums from each, if the whole was one transaction. S. v. Giddins, C. 
 ^ Mar. 634. 
 
 Felony: penal servititde for not more thanfourteen nor less than five 
 [27 Sf 28 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment not ex- 
 ceeding two years, with or without hard labour, and with or without 
 solitary confinement (such confinement not exceeding one month at any 
 one time, nor three months in any one year, 24 Sf 25 Vict. c. 96, s. 119, 
 ante, p. 308). — 24 Sf 25 Viet. e. 96, s. 40. As to requiring the offender 
 to enter into recognizances and find sureties for keeping the peace, Id. 
 n. 117 (ante, p. 307). 
 
 For the evidence to support this indictment, sec ante, p. 413 et seq. 
 
 Indictment for stealing from the Person. 
 
 Commencement as ante, p. 313] — one watch, one pocket-book, and 
 one pocket handkerchief (" any chattel, money, or valuable security'''') 
 of the goods and chattels of J. N., from the person of the said J. N. 
 feloniously did steal, take, and carry away; against the form [as 
 ante, p. 347]. 
 
 Felony, 24 (6 25 Vict. c. %, s. 40, See the last precedent. 
 
 Evidence. 
 Prove a larceny as directed ante, p. 314 et seq., except that an 
 actual and not merely a constructive taking must be proved ; and 
 prove the goods to have been actually severed from the person of 
 J. N. Where the defendant drew a book from the inside pocket of 
 the prosecutor's coat, about an inch above the top of the pocket, but 
 whilst the book was still about the person of the prosecutor the 
 prosecutor suddenly put up his hand, upon which the defendant let 
 the book drop, and it fell into the prosecutor's pocket; this was 
 holdeu, by a majority of the judges, not to be a sufficient asportation 
 to warrant a conviction for stealing from the person, because, from 
 the iirst to the last, the book remained about the person of the pro- 
 secutor; although it was sufficient to constitute a simple larceny, 
 -ffi. V. Thompson, 1 Mood. C. C. 78. But where the prosecutor cai-ried 
 his watch in his waistcoat pocket, fastened to a chain, which was 
 passed through a button-hole of the waistcoat, and kept there, by a 
 watch-key at the other end of the chain ; and the defendant took the 
 watch out of the pocket, and forcibly drew the chain and key out of 
 the button-hole, but the point of the key caught upon another button, 
 and the defendant's hand being seized, the watch remained there 
 suspended, this was held a sufficient severance. M. v. Simpson, 
 Dears. 621 ; 24 L. J. (M. C.) 7. See B. v. Lapier, 1 Leach, 320, ante, 
 p. 417.^ Where a man went to bed with a prostitute, having left his 
 watch in his hat on the table, and while he was asleep she stole the 
 watch, this was held to be a stealing in the dwelling-house, and not 
 a stealing from the person. R. v. Hamilton, % C.&P. 49. 
 
420 Larceny. 
 
 It is immaterial whether the larceny were effected by stealth or 
 with force. If with force suflBcient to constitute robbery, the de- 
 fendant ought to be indicted for that offence ; but if it appear, upon 
 an indictment for stealing from the person, that the force used was 
 sufficient to constitute a robbery, the defendant will not upon that 
 groimd be entitled to an acquittal. R. v. Pearce, R. & R. 174; 2 
 Leach, 1049 : R. v. Robinson, R. & R. 321. 
 
 Indictment for an Assault with Intent to rob. 
 
 Commencement as ante, p. 313] — in and upon one J. N. feloniously 
 did make an assault, with intent the moneys, goods and chattels of 
 the said J. N., from the person and against the will of him the said 
 J. N., then feloniously and violently to steal, take, and carry away; 
 against the form [as ante, p. 347]. This form of indictment was held 
 good in R. v. Huxley, C. Sf Mar. 596 ; it need not in terms charge un 
 intent to lob the prosecutor. 
 
 This count cannot be added to a count for robbery: if it be, the pro- 
 secutor will be put to his election. M. v. Qough, \ M. Sc Rob. 71. 
 But the defendant may be convicted for this offence on an indictment 
 for robbery ; see 24 Sf 25 Vict. c. 96, s. 41, ante, p. 409. 
 
 Felony : penal servitude for five [27 Sf 28 Vict. c. 47, s. 2, ante, p. 
 173] years, or imprisonment for not more than two years, with or 
 without hard labour, and with or without solitary confinement {such 
 confinement not exceeding one month at any one time, nor three months 
 in any one year, 24 ^ 25 Vict. c. 96, s. 119, ante, p. 308). — 24 S^ So 
 Yict. c. 96, s. 42, ante, p. iW. As to requiring the offender to enter 
 into recognizances and find sureties for keeping the peace, Id. s. H7, 
 (ante, p. 307.) 
 
 Indictments for an assault with intent to rob, the prisonei' being 
 armed, or for an assault with intent to rob, together with one or more 
 person or persons, may easily be framed by comparing this with the 
 precedents for robbery under the same circumstances. {See ante, p. 
 418.) The punishment is the same as for such robbery. {See ante, 
 p. 412.) 
 
 Evidence. 
 
 To support this indictment, you must prove the assault, and the 
 intent. 
 
 In proof of the former, it is not necessary to show that the de- 
 fendant committed actual violence upon J. N. ; for an assault is an 
 attempt to commit a forcible crime upon another : and therefore, if 
 the defendant, intending to rob J. N., did anything in his presence, 
 with reference to him, in furtherance of that intent, it will be suffi- 
 cient. The evidence upon this indictment usually proves a robbery, 
 with the exception of the taking and caiTjring away. In R. v. 
 Thomas, 1 Leach, 330 ; 1 East, P. C. 417, it was holden, that an in- 
 dictment which alleged the assault to have been made upon J. N.,was 
 not supported by proof that the assault was made upon the driver of 
 the post-chaise in which J. N. was : but this indictment was framed 
 upon the repealed statute 7 G. 3, c. 21, which made it felony for any 
 person with an offensive weapon to assault any other person, with 
 intent to rob mchperson; and the more general words of the present 
 statute would probably be satisfied by an indictment charging an as- 
 sault upon A., with an intent to rob B. 
 
Larceny. 421 
 
 The intent to rob must, of course, be proved from circumstances. 
 It is a question entirely for the jury to determine, and which they 
 ■will, in general, have to presume from the circumstances attending 
 the assault, the time and place in which it was committed, the ex- 
 pressions or gestures of the defendant at the time, and the like. No 
 actual demand of money, etc., is necessary to support this indictment. 
 R. V. Trusty, 1 East, P. C. 418 : R. v. Shanmn, Id. 421. Assaulting 
 and threatening to charge with an infamous crime, with intent thereby 
 to extort money, is an assaidt with intent to rob, under this statute. 
 R. V. Stnnger, 2 Mood. C. C. 261 ; 1 C. c& K. 188. 
 
 Where the defendant decoyed the prosecutor into a house, and 
 chained him down to a seat, and there compelled him to write orders, 
 for the payment of money and for the delivery of deeds, and the 
 paper on which he wrote remained in his hands half an hour, but he 
 was chained all the time, this was held not to be an assault with 
 intent to rob. R. v. Edwards, % C. & P. 521 : see -B. v. Phipoe, 2 
 Leach, 673. Such cafees as this, however, are now provided for by 
 24 & 25 Viet. c. 96, s. 48, ariie,p. 412. 
 
 Indictment for demanding Property, etc., vnth Menaces or hy Force, 
 with Intent to steal the same. 
 
 Commencement as am,te,p. 313] — feloniously with menaces [or by 
 force, or with menaces and by force] did demand of J. N. the money 
 {^^amy property, chattel, money, valuable security, or other valuable 
 tiling''^ of him the said J. N., with intent the said money from the 
 said J. N. feloniously to steal, take, and carry away; against the 
 form [os cmt6,p. 347]. 
 
 The property, chattel, money, valuable security, etc. demanded must 
 be stated according to the fact. If the demand were of a specific 
 chattel or valuable security, it may he stated thus: " a certain chattel, 
 
 to wit, ," or " a certain valuable security, to wit, ." Where 
 
 an indictment stated that the defendant " feloniously, by menaces, did 
 demand the moneys of the said J. N.," it was holden to be insufficient, 
 because it did not state from whom he had demanded them. R. v. 
 Dimhley, 1 Mood. C. C. 90. See the definition of the term '^property" 
 in this act, s. 1, ante, p. 303. 
 
 Felony : penal servitude for five [27 Sj- 28 Vict. c. 47, .i. 2, ante, p. 
 173] years, or imprisonment for not more than twu years, with or with- 
 out hard labour, and with or without solitary confinement {such con- 
 finement not exceeding one month at any one time, nor three months 
 in any one year, 24 ^ 45 Vict. c. 96, s. U9, ante,'p. 308).— 24 Sf 25 
 Vict. c. 96, s. 45, ante, p. ill. As to requiring tlm offender to enter 
 into recognizances and find sureties for keeping the peace, Id. s. 117, 
 {ante, p. 307.^ 
 
 To support this indictment, the prosecutor must prove a demand 
 by the defendant of the money or other thing stated in the indict- 
 ment, " by menaces or force," with intent to steal it. It is not neces- 
 sary to prove an express demand in words ; the statute says "if any 
 person shall, with menaces or by force demand," etc.; and menaces 
 are of two kinds— by words, or by gestures : so that, if the words or 
 gestures of the defendant at the time were plainly indicative of what 
 
422 Larceny, 
 
 he required, and tantamount in fact to a demand, it should seein to 
 be sufficient proof of the allegation of demand in the indictment. 
 See B. V. Jackson, 1 Leach, 269. 
 
 If a person, with menaces, demand money of another, who does not 
 give it him, because he has it not with him, this is a felony within the 
 statute: but if the party demanding the money knows that it is not 
 then in the prosecutor's possession, and only intends to obtain an 
 order for the payment of it, it is otherwise. R. v. Edwards, G C. (& 
 P. 615. 
 
 The intent to steal must, of course, be presumed from cirenm- 
 stances. It is a question entirely for the jury to determine, and which 
 they wiU, in general, have to presume from the circumstances attend- 
 ing the demand, the expression or gestm-es of the prisoner when he 
 made it, and the like. 
 
 In order to bring a case within 24 & 25 Vict. c. 96, s. 45, the 
 demand, if successful, must amount to stealing, and to constitute a 
 menace within that section it must be of such a nature as to unsettle 
 the mind of the person upon whom it operates, and to take away 
 from his acts that element of voluntary action which alone con- 
 stitutes consent ; it must therefore be left to the jury to say whether 
 the conduct of the prisoner is such as to have had that effect on the 
 prosecutor. B. v. Walton, L. & C. 288; 32 L. J. (M. C.) 79. Where 
 a policeman, professing to act under legal authority, threatens to im- 
 prison a person on a charge not amounting to an offence in law, 
 unless money be given him, and the person believing him gives him 
 money, the policeman may be indicted under that section, although 
 he might also have been indicted for stealing the money. R. v. 
 Robertson, L. & C. 483 ; 34 L. J. (M. C.) 35. 
 
 Indictment for sending or delivering a Letter demanding Money, etc. 
 
 Central Criminal Court, to wit: — The jurors for our lady the Queen 
 upon their oath present, that J. S., on the first day of June, in the 
 
 year of our Lord , feloniously did send {"send, deliver, or utter, 
 
 or directly or indirectly cause to be received") to one J. N. a certain 
 letter ("any letter or writing"'), directed to the said J. N., by the 
 name and description of Mr. J. N.,* demanding money (" any pro- 
 perty, chattel, money, valuable security, or other valuable thing"),bom 
 the said J. N., with menaces, ajid without any reasonable or probable 
 cause, he the said J. S. then well knowing the contents of the said 
 letter ; and which said letter is as follows, that is to say Ihere set out 
 the letter verbatim']; against the form [as ante, p. 347]. 
 
 Second count. — And the jurors aforesaid, upon their oath aforesaid, 
 do further present that the said J. S., on the day and in the year 
 aforesaid, feloniously did utter a certain writing demanding money 
 from the said J. N., with menaces and without any reasonable or 
 probable cause, he the said J. S. then well knowing the contents of 
 the said writing ; and which said writing is as follows, that is to 
 say [here set out the writing verbatim] ; against the form [as ante, 
 p. 347]. 
 
 The letter must be set out in the indictment (see R. v. Lloyd, 3 East, 
 P. C. 1122), and care must be taken to set it out correctly, for a 
 variance (unless amended) would be fatal. (See ante, pp. 205, 206.) 
 
 Mr. Greaves observes (3 Russ., C. Sf M. 179, n. (h), (ithed.) upon 
 24 ^ 25 Vict. c. 100, s. 16, which enacts, that whosoever shall mali- 
 
Larceny. 423 
 
 cUmsly send, deliver, or utter, or directly or indirectly cause to he 
 received, knowing the contents thereof, any letter or writing, threaten- 
 ing to hill or murder any person, shall be guilty of felony, etc., that 
 the words "to any other person" ivere advisedly omitted, in order 
 that every sending, delivering, uttering, or causing to be received 
 might be included. He therefore advises that in every indictment 
 on that and the similar clauses in the other Criminal Law Consolida- 
 tion Acts {which include 24 Sf 25 Vict. c. 96, ss. 44, 46 ; t. 97, 
 «. GO; and c. 100, s. 16), a count should be inserted alleging that the 
 defendant uttered the writing, without stating any person to whom 
 it was uttered. Counts for uttering forged instruments never state 
 the person to whom they were uttered, and they show that such a count 
 on this clause would clearly be good. See Elsworth's case, 2 East, 
 P. C. c. 19, s. 59; 3 Buss. C. Sj- M. 179, n. (h) (ith ed.) The second 
 count in the above indictment is framed in conformity with this 
 suggestion of Mr. Greaves. 
 
 Felony: penal servitude for life or for not less than five [27 ^ 28 
 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment not exceeding 
 two years, with or without hard labour, and with or without solitary 
 confinement {such confinement not exceeding one month at any one 
 time, nor three months in any one year, 24 ^ 25 Viet. c. 96, s. 1 19, 
 ante, p. 308), and, if a male under sixteen, with or without whipping : 
 {Id.) — 24 ^ 25 Vict. c. 96, s. 44, ante, p. 410. As to requiring the 
 offender to enter into recognizances and find sureties for keeping the 
 peace. Id. s. 117, ante, p. 307. 
 
 This offence is not triable at quarter sessions. 5^6 Vict. c. 38, 
 s. 1 {ante, p. 104). 
 
 Evidence. 
 
 Give the letter in evidence, and prove it to have been sent or 
 delivered by the defendant, as charged in the indictment. 
 
 Feloniously did send, etc.] — Proof that the defendant dropped the 
 letter in a place where he knew the prosecutor would come, and that 
 it was picked up by another person, and by him delivered to the 
 prosecutor; M. v. Lloyd, 2 East, P. C. 1122 : B. v. Wagstaff,B. & B. 
 398 ; or that the letter is of the handwriting of the defendant, and 
 that it came to the prosecutor by the post ; B. v. Heming, 2 East, P. 
 C. 1116: amd see B. v. Jepson, Id. 1115 ; has been holden (upon the 
 repealed, statutes, which did not contain the words in the present 
 statute, " or directly or indirectly cause to be received ") sufficient 
 evidence of a sending by the defendant. So, where the prosecutor, 
 having received such a letter, traced it to a woman who was in 
 the habit of going errands for the prisoners in Newgate, and she 
 proved .that she received it from the defendant, then a prisoner in 
 Newgate, to put in the post-office, and the servant of the post-office 
 proved that the letter in question was brought to the office by the 
 last witness, and forwarded in the regular course ; this was holden 
 sufficient evidence, not only of the sending by the defendant, but that 
 he also knew its contents. B. v. Girdwood, 2 East, P. C. 1120; 1 
 Leach, 142. And sending the letter to A. in order that he may 
 deliver it to B., is a sending to B., if the letter is delivered by A. to B. 
 B. V. Paddle, B. & B. 484. So, the leaving of a letter directed to A. , 
 near A.'s house, with an intention that it should not only reach 
 A., but B. also, was held to be a sending of it to B., by whom it 
 was afterwards seen. B. v. Grimwade, 1 Dm. 30 ; 1 C. d K. 692. 
 
424 Larceny. 
 
 Where the only evidence of sending a threatening letter was the 
 declaration of the defendant, that he should never have written it 
 but for W. Gr., it was holden insufficient. R. v. Howe, 1 C.&P. 268. 
 A delivery of a letter was not within the earlier statutes on this 
 subject; R. V. Hammond, 2 East, P. C. 1119; 2 Leach, 499; but a 
 delivery of it, with a knowledge of its contents (which is essential in 
 all cases under this section), is within the express terms of the 
 present act. 
 
 A certain Letter, etc.'] — The words in this statute are " any letter 
 or writing" and therefore the decisions upon the earlier statutes on 
 this subject are inapplicable to the present. 
 
 A material variance between the letter set out and that produced 
 in evidence will be fatal, unless amended. (See ante, p. 422.) 
 
 In R. V. Haine, 6 C. (& P. 105, Bolland, B., ordered the letter to 
 be deposited in the hands of the clerk of the peace, in order that the 
 defendant's witnesses might inspect it before the trial. 
 
 Demanding Money.'] — " Any property, chattel, money, valuable 
 security, or other valuable thing." /See 24 tfe 25 'V'iet. c. 96, s. 1, ante, 
 p. 302. If there be any doubt, which of two or three things was 
 demanded, it may be stated differently in different counts. Where 
 the letter contained a request only, but intimated that, if it were 
 not complied with, the writer would publish a certain Ubel then in 
 his possession, accusing the prosecutor of murder ; this was holden 
 to amount to a demand. R. v. Robinson, 2 Leach, 749 ; 2 East, P. 
 C. 1110. A mere request, however, such as asking charity, or the 
 like, without imposing any conditions, would not come within the 
 meaning of the word " demand " in the statute. Per Bulhr, J., in R. 
 V. Robinson, supra. The demand must be with menaces, and without 
 any reasonable or probable cause, and it will be for the jury to 
 consider whether the letter does expressly or impliedly contain a 
 demand of this description. The words " without any reasonable or 
 probable cause" apply to the demand of money, and not to the 
 accusation threatened by the defendant to be made against the pro- 
 secutor; and it is therefore immaterial, in point of law, whether the 
 accusation be true or not. R. v. Hamilton, 1 C. <& K. 212 : see B. v.. 
 Gardner, 1 C. & P. 479. 
 
 Where an anonymous letter stated that the writer had overheard 
 certain persons agree together to do an injury to the person or pro- 
 perty of the prosecutor, to whom the letter was sent, and that if 
 thirty sovereigns were laid in a particular place, the writer would 
 give such information as would frustrate the attempt ; this was holden 
 not to be a threatening letter within the repealed statute 7 <fc 8 (?. 4, 
 c. 29, s. 8 ; although it appeared that the letter was a mere device 
 to defraud the prosecutor of thirty sovereigns. R. v. Pichford, i 
 C. & P. 227. But a letter written to a banker, stating that it was 
 intended by a cracksman to bum his books and cause his bank to 
 stop, and that, if 250Z. were put in a certain place, the writer of the 
 letter would prevent the mischief, but if the money were not put 
 there, it would happen, — was held to be a letter demanding money 
 with menaces within 7 c6 8 (?. 4, c. 29, s. 8. R. v. Smith, 1 Dm. 
 610 ; 2 C c6 K. 882 ; 19 L. J. (M. C.) 80. Since that decision, it is 
 difficult to see how the case of R. v. Pichford can be supported ; aid 
 see now 24 & 25 "Vict. c. 96, s. 49, ante,p. 412., 
 
Larceny. 425 
 
 Indictment for Threatening to accuse a Man of a Crime, with 
 Intent, etc. 
 
 Commencement as in the last precedmil—ielo^wmly did threaten 
 one J. N., to accuse (" accuse or threaten to accuse ") him the said. 
 J. N. (" either the person to iohom such accusation or threat shall be 
 made, or any other person") of having attempted and endeavoured to 
 commit the abominable crime of sodomy with the said J. S. (' any 
 crime punishable by law with death or penal servitude for not less than 
 seven years, or of any assault with intent to commit any rape, or of any 
 attempt or endeavour to commit any rape, or of any crime in and by the 
 24 & 25 Vict. c. 96, s. 46, defined to be an infamous crime"), with a 
 view and intent thereby then to extort and gain money (" any pro- 
 perty, chattel, money, valuable security, or other valuable thing," see 
 24 & 25 Vict. c. 96, s. 1, ante, p. 302) from the said J. N.; against the 
 form [as ante, p. 347]. It is not necessary to describe the accusation 
 in strict technical language : see B. v. Tucker, 1 Mood. C. C. 134. 
 
 Felony : penal servitude for life or for not less than five [27 & 28' 
 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment for not more than 
 two years, loith or without hard labowr, and, if a male under sixteen, 
 with or without whipping.— 2i & 25 Vict. c. 96, s. 47, ante, p. 411. 
 As to requiring the offender to enter into recognizamces and find sureties 
 for keeping the peace, Id. s. 117, ante, p. 307. 
 
 This offence is not triable at quarter sessions. 5 <& 6 Viet. c. 38, 
 s. 1 (am,te,p. 104). 
 
 Evidemce. 
 
 Prove the threat or accusation, and the intent. 
 
 Before the stat. 10 & 11 Vict. o. 66, s. 2 (of which the 24 & 25 
 Vict. c. 96, s. 47, is in effect a re-enactment), the indictment must 
 have stated that the defendant threatened J. N., and it must have 
 been proved that the threat was made use of to him : R. v. Dunhley, 
 1 Mood. C. C. 90 : R. v. Jones, 1 Den. 218 ; 2 C. d K. 398 ; but 
 see supra. It would seem, however, that if the threat were made 
 to a third person, with the intent that he should communicate it to 
 J. N., it would have supported this allegation. R. v. Paddle, R. & B. 
 484. It must be a threat to accuse, or an accusation : if J. N. be 
 indicted, or in custody for an offence, and the defendant threaten to 
 procure witnesses to prove the charge, this will not be a threat to 
 accuse within the meaning of the statute. R. v. Gill, 1 Arch. P. A. 
 302. But it need not be a threat to accuse before a judicial tribunal ; 
 a threat to charge before any third person is sufficient. R. v. Robin- 
 son, 1 M. & Rob. 14. And it is immaterial whether the prosecutor 
 be innocent or guilty of the offence imputed to him ; R. v. Gardner, 
 \ C. & P. 479 ; if the prisoner intended to extort money by the accu- 
 sation. R. V. Richards, 11 Cox, 43. And therefore, although the 
 prosecutor may be cross-examined as to his guilt of the offence im- 
 puted to him, with a view to shake his credit, yet no evidence will be 
 allowed to be given, even in cross-examination, by another witness, 
 to prove that the prosecutor was guilty of such offence. R. v. 
 Orachnell, 10 Cox, 408. The guilt or innocence of the prosecutor may 
 however be material in considering the question, whether, under the 
 circumstances of the case, the intention of the prisoner was to extort- 
 money or merely to compound a felony. R. v. Richards, 11 Cox, 43. 
 The last-named case appears to be hardly reconcilable with the 
 above-cited cases of R. v. Gardner and R. v. Crachnell. Where it 
 was doubtful from the letter what charge was intended, parol evidence 
 
426 Larceny^. 
 
 was admitted to explain it, and the prosecutor proved, that, having 
 asked the prisoner what he meant by certain expressions in the 
 letter, the prisoner said that he meant that the prosecutor had taken 
 indecent liberties with his person : the judges held the conviction to 
 be right. R. v. Tucker, 1 Mood. G. C. 134 : see R. v. Middleditch, 
 1 Den. 92. Proof that the prisoner went to the prosecutor and 
 threatened to accuse his son of an unnatural offence with a mare 
 unless the prosecutor would buy the mare for 31., was held to sustain 
 an indictment under 24 d; 25 Vict. c. 96, s. 47, of threatening to 
 accuse of an abominable crime thereby to extort money. B. v. 
 Redman, L. R., 1 C. C. R. 12; 35 L. J. (M. G) 89. 
 
 The intent must be proved as laid ; a variance will be fatal, unless 
 amended. Where the intent laid was to extort money, and the intent 
 proved was to extort a bill of exchange, it was holden a fatal variance. 
 R. V. Major, 2 East, P. C. 1118. If the intent do not appear suffi- 
 ciently from the accusation or threat itself, it must be proved by 
 circumstances from which the jury may fairly presume it {see amte, 
 p. 208) ; as by subsequent expressions of the defendant. R. v. Chin, 
 8 a (& P. 187. 
 
 Indictment for sending a Letter threaterdnff to accuse, with Intent, &e. 
 
 Commencement as ante, p. 422, to the asterisK] — threatening to 
 accuse him the said J. N. (" accusing or tJireatening to accuse^') of 
 having [ete., as in the last precedent, to the words'] from the said J. N., 
 he the said J. S. then well knowing the contents of the said letter, and 
 which said letter is as follows, that is to say [here set out the letter 
 verbatim], against the form [ass ante, p. 347]. 
 
 Second count. — And the jurors aforesaid, upon their oath aforesaid, 
 do further present that the said J. S. on the day and in the year afore- 
 said feloniously did utter a certain writing threatening to accuse him 
 the said J. N. [proceed as in the first count, substituting " ivriting"for 
 " letter."'] As to this second count, see the observations following tlie 
 second count of the indictment, ante, p. 422. A n indictment for sending 
 a letter threatening to accuse a man of an irtfamous crime need not 
 specify such crime, for the specific crime the defendo/nt threatened to 
 eharge might intentionally be kft in doubt, R. v. Tucher, supra. 
 The indictment, before 10 ^ 11 Vict. c. 66, s. 1 (which has been re- 
 placed by the 24 ^ 2-5 Vict. c. 96, s. 46), must have alleged that 
 the defendant threatened to accuse the person to whom the letter was 
 sent; see R. v. Dunhley, 1 Mood. C. C. 90 ; but the wards of the 
 present statute are " any other person." Care should be taken U> set 
 out the letter correctly. 
 
 Felony : penal servitude for life or for not less than five [27 ^ 28 
 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment for not more 
 than two years, with or without hard labour, and with or untliout 
 solitary confinement {such confinement not exceeding one month at 
 any one time nor three months in any one year, 24 ^ 25 Vict. e. 96, 
 s. 119, ante. p. 308), and, if a male under sixteen, with or without 
 iohipping{Id.).—2i ^ 25 Vict. c. 96, s. 46, ante, p. 411. As to re- 
 quiring the offender to enter into recognizances and find sureties for 
 keeping the peace, Id. «. 117, ante, p. 307. 
 
 This offence is not triable at quarter sessions, 5i 4" & ^"^'' '• 38) 
 s. 1 {iinte,p. 104). 
 
Larceny. 427 
 
 Prove that the defendant sent, delivered, or uttered, or caused to 
 be received, the letter, as directed mU, p. 423. Whether the letter 
 amounts to a threat to accuse the prosecutor of the offence men- 
 tioned, is a fact to be determined by the jury. See R. v. Girdwood, 
 2 East, P. C. 1121; 1 Leach, 142. If it does not appear from the 
 letteritself of what offence the defendant threatened to accuse the 
 prosecutor, the defendant's declaration of the meaning of the letter 
 may be given in evidence to explain it. jB. v. Tucker, 1 Mood. C. C. 
 134. 
 
 The intent must also be proved, as in the last case; and in order 
 to prove it, other letters received by the prosecutor from the de- 
 fendant upon the same subject may be given in evidence. 
 
 PIKACY AT COMMON LAW. 
 
 Indictment. 
 Yorkshire, to wit: — The jurors for our lady the Queen upon their 
 oath present, that J. S., K. S. and L. T., on the 1st day of August, 
 in the year of our Lord one thousand eight hundred and sixty-one, 
 with force of arms, upon the high seas, to wit, in and on board of a 
 certain ship, called the Windsor Castle, in a certain place upon the 
 high seas, distant about ten leagues from Cutoheen in the East Indies,, 
 then being, in and upon certain mariners, to the jurors aforesaid un- 
 known, in the peace of God and of our lady the Queen then and there 
 being, piratically and feloniously did make an assault, and them the 
 said mariners in bodily fear and danger of their lives on the high, 
 seas aforesaid then and there piratically and feloniously did put, and 
 the said ship called the Windsor Castle, and the apparel and tackle 
 of the said ship, of the value of twelve hundred pounds, and seventy 
 chests of opium, of the value of fourteen hundred pounds, in and on 
 board the said ship then being, of the goods and chattels of certain 
 subjects of our said.lady the Queen, to the jurors aforesaid unknown, 
 and then in the custody and possession of the mariners aforesaid, 
 from the care, custody and possession, and against the will of the 
 mariners aforesaid, then, to wit, on the day and year last aforesaid, 
 upon the high seas aforesaid, piratically, feloniously and violently 
 did steal, take and carry away, against the peace of our lady the 
 Queen, her crown and dignity. As to the venue and place of trial, see 
 ante, p. 30. 
 
 By 28 H. 8, c. 15, ss. 2, 3, piracy at common law, i. e. robbery on 
 the high seas, was made pimishable with death, and with loss of lands 
 and goods, in the same manner as upon an attainder for robbery on 
 land. The 39 G. 3, c. 37, s. 1, however made offences committed within 
 the jurisdiction of the Admiralty punishable in the same manner as if 
 they had been committed on lamd. The 1 G. 4, c. 90, «. 1, extended to 
 such offences the hertefit of clergy, as if committed on land; cmd the 
 Stat. T S 8 G. i, e. 28, s. 12, enacted, that " all offences prosecuted im 
 the High Cowrt of Admiralty of England should, upon every first and 
 subsequent conviction, be subject to the same punishment, whether of 
 death or otherwise, as if such offences had been committed upon the 
 land." See nmuTW.i&l Vict. c. 88 {post, p. 430). 
 
42& Piracy. 
 
 Evidence. 
 
 Prove a robbery, and prove it to have been committed upon fte 
 high seas, within the jurisdiction of the Admiralty. Attend also to 
 the following particulars of evidence : — 
 
 Upon the High /Seas.]— The offence must be proved to have been 
 committed within the jurisdiction of the Court of Admiralty, that is, 
 upon some part of the sea which is not infra corpus comitatue. See 
 13 R. 2, St. 1, c. 5 ; 15 R. 2, e. 3. All rivers in this country, until 
 they flow past the furthest point of land next the sea, are within the 
 jurisdiction of the courts of common law, and not of the court of 
 Admiralty. See 1 Co. 175 ; 3 Inst. 113 ; i T. R. 315. Nor does the 
 Admu'alty jurisdiction extend to any haven, creek, arm of the sea, or 
 other place within the body of a county ; 3 Inst. 113 ; 1 Hawk. c. 37, 
 s. 11; thus, where the sea flows in between two points of land in this 
 country, a straight imaginary line being drawn from one point to the 
 other, the courts of common law have jurisdiction of all offences 
 committed within that line ; the court of Admiralty of all offences 
 without it. See R. v. Bruce, R. & R. 242 : R. v. Cunningham, Bell, 
 72 ; 28 L. J. (M. C.) 66, ante,j). 32. But if a robbery be committed 
 in creeks, harbours, ports, etc., in foreign countries, the court of 
 Admiralty indisputably has jurisdiction of it, and such offence is con- 
 sequently piracy. M. v. Jemot, Old Bailey, 28th Fib. 1812, MS. For 
 the court of Admiralty has jurisdiction over British ships in foreign 
 rivers, below the bridges, where the tide ebbs and flows, and where great 
 ships go, although the municipal authorities of the foreign country 
 may be entitled to exercise concurrent jurisdiction. R. v. Anderson, 
 L. R., 1 C. C.R. 161; 38 i. J. (MC.) 12. Indeed on an indictment for 
 larceny out of a vessel lying in a river at Wampu, in China, the 
 prosecutor gave no evidence as to the tide flowing or otherwise 
 where the vessel lay ; but the judges held that the Admiralty had 
 jurisdiction, it being a place where great ships go. R. v. Allen, 1 
 Mood. C. C. 494. As to offences committed on the coasts, the Ad- 
 miralty have exclusive jurisdiction of offences committed beyond the 
 low water-mark; and between that and the high water-mark the 
 court of Admiralty has jurisdiction of offences done upon the water 
 when the tide is in ; and the courts of common law of offences com- 
 mitted upon the strand when the tide is out. But see Embleton v. 
 Brown, 3 E. <& E. 234; 30 L. J. (M. C.) 1. All the other pai-ts of 
 the high seas are indisputably within the jurisdiction of the Ad- 
 miralty. 
 
 In amd on Board, etc.'] — This must be proved as laid. If the name 
 of the ship be unknown, it must be stated so in the indictment. (See 
 ante, p. 39.) 
 
 In the Peace of owr Lady the Queen.] — Some evidence must be 
 given of this; for if the persons robbed be subjects of a state at 
 enmity with this country, although it may perhaps be piracy, yet 
 it is not cognizable as such in anv court of Admiralty within this 
 realm. 4 Inst. 154 ; 2 R. 3,/. 2. &e R. v. Samyer, R. S R. 294. 
 
 In bodily Fear, etc.] — This must be proved in the same manner as 
 in robbery. Sir L. Jenh. xciv. 
 
Piracy. 429 
 
 And the said Ship, etc.']— The things stolen are proved in the same 
 majiner as in ordinary cases of larceny. The value is immaterial, as 
 in a robbery upon land. Molloy, 64, s. 18 ; Beawes, 231. It is said, 
 that if one or more of the crew or passengers in a vessel be taken for 
 the purpose of being sold as slaves, it is piracy. Molloy, 63, s. 16 ; 
 and see 5 G. 4, c. 113. 
 
 Of the Goods mud Chattels of, ete.]— These must be stated to be 
 the goods of a subject or subjects of this realm, or of some state in 
 amity with it: and the allegation must be proved as laid. (See ante, 
 pp. 39, 202.) 
 
 Piratically, feloniously, amd violently .1 — The goods must be proved 
 to have been taken animo furandi, as in other cases of larceny. 
 Molloy, 71, s. 33. (See ante, p. 326.) And they must be proved to 
 have been either taken with force and violence, or delivered to the 
 pirates under the impression of that degree of fear and apprehen- 
 sion which is necessary to constitute robbery upon land. (See anie, 
 p. 413.) 
 
 The taking, to be piracy, must be without authority from any 
 prince or state. If a party making a capture at sea do so by the 
 authority of any prince or state, it cannot be considered piracy ; for 
 a nation never can be deemed pirates; fixed domain, public revenue, 
 and a certain form of government, exempt a people from that cha- 
 racter. Even a capture by authority of the states of Algiers, Tunis, 
 or Tripoli, cannot be treated as piracy. 2 Sir L. Jenh. 790; Grot. 2, 
 c. 18, s. 2. Also, at common law, if a subject of this realm com- 
 mitted acts of hostility against another subject, under the authority 
 of a commission from a foreign prince, it was not piracy; 2 Sir L. 
 Jenh. 754; but the law has been altered in this respect by 11 <& 12 
 W. 3, c. 7, amd 18 G. 2, c. 30, s. 1. See R. v. Evan^, 2 East, P. C. 
 798. 
 
 If the subjects of the same state commit robbery upon each other, 
 upon the high sea, it is piracy. If the subjects of different states 
 commit robbery upon each other, upon the high sea, if their respec- 
 tive states be in amity, it is piracy; if at enmity, it is not; for it is 
 a general rule, that enemies can never commit piracy on each other, 
 their depredations being deemed mere acts of hostility, 1 Sir L. 
 Jenh. xciv.; 4 Inst. 154. 
 
 But if a commissioned ship, by mistake, capture a vessel belong- 
 ing to the subjects of a friendly power, imagining it to belong to an 
 enemy, and bring it, without damage, into port for condemnation, 
 that is not piracy. See 1 Sir L. Jenh. xciv. 
 
 Steal, take, and carry away.] — This is proved in the same manner 
 as in robbery. JfoZ%, 64, s. 18. If persons at sea force the captain 
 of a vessel to sell part of his cargo for less than its value, it is piracy. 
 ZT.B.llZ. SeeSSiT. 8, C.15, s. 4. But if a pirate attack a vessel, 
 and before he obtains possession of her, the captain, in order to 
 redeem her, give an oath to pay a sum certain, this is no piracy, for 
 there was no taking. Molloy, 64, s. 18. But if there be an actual 
 taking, it is piracy, although the pirate afterwards allow the party to 
 proceed on his voyage. Sir L. Jenh. xcviii. 
 
430 Piracy. 
 
 PIRACY BY STATUTE. 
 
 Statutes. 
 
 11 & 12 W. 3, c. 7, s. 8 — Piratical Acts done wider colowt of Foreign 
 Commission.'] 
 
 Sect. 9 — CertainActs of Commanders, Seam£n,etc., to lePiracy.] — If 
 any commander or master of aiiy ship, or any seaman or mariner, 
 shall, in any place where the admiral hath jurisdiction, betray his 
 trust, and turn pirate, enemy, or rebel, and piratically and feloniously 
 run away with his or their ship or ships, or any barge, boat, ordnance, 
 ammunition, goods, or merchandize, or yield them up voluntarily to 
 any pirate ; or shall bring any seducing message from any pirate, 
 enemy, or rebel; or consult, combine, or confederate with, or attempt, 
 or endeavour to corrupt any commander, master, oflBcer, or mariner, 
 to yield up or run away with any ship, goods, or merchandizes, or 
 turn pirates, or go over to pirates ; or if any person shall lay violent 
 hands on his commander, whereby to hinder him from fighting in 
 defence of his ship, and goods committed to his trust, or shall confine 
 [iJ. V. Jones, 11 Cox, B93,post, p. 431] his master, or make, or en- 
 deavour to make, a revolt in the ship, he shall be adjudged, deemed, 
 and taken to be a pirate, felon, and robber. 
 
 8 G. 1, c. 24, s. 1 — Certain Acts of Commanders, Seamm, etc., to be 
 Piracy^ — If any commander or master of any ship or vessel, or any 
 other person or persons, shall anywise trade with any pirate, by 
 truck, barter, exchange, or in any other manner, or shall furnish any 
 pirate, felon, or robber upon the seas, with any ammunition, provi- 
 sion, or stores of any kind, or shall fit out any ship or vessel know- 
 ingly, and with a design to trade with, or supply or correspond with 
 any pirate, felon, or robber on the seas, or if any person or persons 
 shall anyways consult, combine, confederate, or correspond with 
 any pirate, felon, or robber on the seas, knowing him to be guilty of 
 any such piracy, felony, or robbery, such offender and offenders, and 
 every of them, shall in each and every of the said cases be deemed, 
 adjudged, and taken to be guilty of piracy, felony, and robbery, and 
 he and they shall and may be inquired of, tried, heard, and adjudged 
 of and for all or any of the matters aforesaid, according to the 28 H. 
 8 (c. 15) and the 11 tfe 12 W.S {c. 7) ; and in case any person or 
 persons belonging to any ship or vessel whatsoever, upon meeting 
 any merchant ship or vessel on the high seas, or in any port, haven, 
 or creek whatsoever, shall forcibly board or enter into such ship 
 or vessel, and though they do not seize or carry off such ship or 
 vessel, shall throw overboard or destroy any part of the goods or 
 merchandizes belonging to such ship or vessel, the person or persons 
 who shall be guilty thereof shall in all respects be deemed and 
 pimished as pirates as aforesaid. l_Made perpetiMl by 2 G. 2, 
 c. 28.] 
 
 18 G. 2, c. 30 — Piracy committed under Enemy's Commission.'] 
 
 7 TF. 4 <6 1 Vict. c. 88, s. 1.] — Repeals so mwih of the statutes 28 
 H. 8, c. 15; 11 (& 12 W. 3, C.1 ; i G. 1, c. 11; 8 G. 1, c. 24; and 18 
 
Piracy. 431 
 
 0. 2, c. 30, aB relates to the pwiishmeiit of the crime of piracy, or of 
 any offence by amy of the said acts declared to he piracy, or of acces- 
 sories thereto respectively. 
 
 Sect. 2— Piracy with Violeme.']— Whosoever, wUhintent to commit, 
 or at the time of, or immediately before, or immediately after com- 
 mitting the crime of piracy in respect of anjr ship or vessel, shall 
 assault, with intent to murder, any person being on board of or be- 
 longing to such ship or vessel, or shall stab, cut, or wound any such 
 person, or unlawfully do any act whereby the life of such person may 
 be endangered, shall be guilty of felony, and, being convicted thereof, 
 shall suflfer death as a felon. 
 
 Sect. 3— Punishment of Piracy.}— WhoBoeveT shall be convicted 
 of any offence which by any of the acts hereinbefore referi-ed to 
 amounts to the crime of piracy, and is thereby made punishable with 
 death, shall be liable, at the discretion of the court, to be transported 
 beyond the seas for the term of the natural life of such offender or 
 for any term not less than fifteen years, or to be imprisoned for any 
 term not exceeding three years. 
 
 9 <§ 10 Vict. c. 24, s. \.'\—Anie,p. 174. 
 
 20 & 21 Vict. c. 3, s. 2.']^Ante,p. 172. 
 
 27 <& 28 Vict. c. 47, «. 2.]— Ante, p. 173. 
 
 7 TF". 4 ^ 1 Vict. e. 88, s. 5 — Place amd Mode of Imprisonment^ — 
 Where any person shall be convicted of ajiy offence punishable under 
 this act, for which imprisonment may be awarded, it shall be lawful 
 for the court to sentence the offender to be imprisoned, or imprisoned 
 and kept to hai-d labour, in the common gaol or house of correction, 
 and also to direct that the offender shall be kept in solitary confine- 
 ment for any portion or portions of such imprisonment, or of such 
 imprisonment with hard labour, not exceeding one month at any one 
 time, and not exceeding three months in any one year, as to the court 
 in its discretion shall seem meet. 
 
 Indicimemt for Piracy with Violence. 
 
 This indictment maty easily he framed from the precedent of an in- 
 dictment for piracy at common law (orate, ^.427), hy adding am, allega- 
 tion, " that the defendant, with intent to commit [or ' at the time of,' 
 or, ' immediately before,' or ' immediately after the committing'] such 
 piracy as aforesaid, in and upon one J. N., then and there being on 
 board of [or 'belonging to'] the said ship, feloniously did make an 
 assault, with intent him the said J. N. feloniously, wilfully, and of 
 his malice aforethought, to kill and murder" [or otherwise, as the 
 case may he"] ; and concluding against the form of the statute, etc. 
 See an abstract of an indictment for piracy under 11 Sf 12 W. 3, c. 7, 
 s. 9. R. V. Jones, 11 Cox, 393. The evidence will be the same 
 as stated ante, p. 428, with the addition of the proof necessary to 
 sustain the above allegation. An indictmejit against sailors for " con- 
 fining their master" under 11 ^ 12 TF. 3, c. 7, s. 9, will be supported 
 by evidence that, although no force was used, the master was re- 
 
432 Piracy. 
 
 strained by the presence and gestures of the prisoners, and deprived 
 of hv> lawful command, and compelled to remain in certain parti of 
 tlie vessel. R. v. Jones, 1 1 Cox, 393, per Bovill, C. J. 
 
 FeUmy: death. 7 W. 4 ^ 1 Vict, c 88, s. 2. This sentence may be 
 recorded, i G i, e 48. s 1, ante, p. 171. 
 
 The offence is nut triable at quarter sessions. 5 Sf 8 Vict. c. 38, 1. 1 
 (ante, p. 104). 
 
 As to offences made piracy by previous statutes, see ante, p. 30. As 
 to piracy hy dealing in slaves, and the off" nee of fitting out vessels, 
 etc., for the slave trade, etc., see 5 G. 4, c. 113, and R v. Zulueta, 1 
 C ^ A". 215 See further as to tlie offence of piracy, 1 Rms. C i^ 
 M. pp. 144 et seq. {ith ed.), and 3 Burn's J., pp. 1265 et seq. 
 (30ih ed.) 
 
 EECEIVING STOLEN GOODS. 
 
 Statute. 
 24 (& 25 Vict. c. 96, s. 91 — Receivers may he tried as Accessoriei 
 after the Fact or for substantive Felony. '\ — Whosoever shall receive 
 any chattel, money, valuable security, or other property -whatsoever, 
 the stealing, taking, extorting, obtaining, embezzling, or otherwise 
 disposing whereof shall amount to a felony, either at common law 
 or by virtue of this act, knowing the same to have been feloniously 
 stolen, taken, extorted, obtained, embezzled, or disposed of, shall be 
 guilty of felony, and may be indicted and convicted, either as an ac- 
 cessory after the fact or for a substantive felony, and, in the latter 
 case, whether the principal felon shall or shall not have been pre- 
 viously convicted, or shall or shall not be amenable to justice ; and 
 every such receiver, howsoever convicted, shall be liable, at the dis- 
 cretion of the court, to be kept in penal servitude for any term not 
 exceeding fourteen years, and not less than three years [now five 
 years, 27 (& 28 Vict. c. 47, s. 2, ante, p. 173], or to be imprisoned for 
 any term not exceeding two years, with or without hard labour, and 
 with or without solitary confinement, and, if a male under the age of 
 sixteen years, with or, without whipping: provided that no person, 
 howsoever tried for receiving as aforesaid, shall be liable to be pro- 
 secuted a second time for the same offence. 
 
 Sect. 92 — Joining Counts against principal Felons and Recmeri^— 
 In any indictment containing a charge of feloniously stealing any 
 property, it shall be lawful to add a count, or several counts, for 
 feloniously receiving the same, or any part or parts thereof, knowing 
 the same to have been stolen ; and in any indictment for feloniously 
 receiving any property knowing it to have been stolen, it shall be 
 lawful to add a count for feloniously stealing the same ; and where 
 any such indictment shall have been preferred and found against any 
 person, the prosecutor shall not be put to his election, but it shall be 
 lawful for the jury who shall try the same to find a verdict of guilty, 
 either of stealing the property, or of receiving the same, or any part 
 or parts thereof, knowing the same to have been stolen; and if such 
 indictment shall have been preferred and found against two or more 
 persons, it shall be lawful for the jury who shall try the same to find 
 all or any of the said persons guilty either of stealing the property, 
 
Receiving Stolen Goods. 433 
 
 or of receiving the same, or any part or parts thereof, knowing the 
 same to have been stolen, or to find one or more of the said persons 
 guilty of stealing the property, and the other or others of them guilty 
 of receiving the same or any part or parts thereof, knowing the same 
 to have been stolen. 
 
 Sect. Q5— Several Counts against separate Receivers.] — Whenever 
 any property whatsoever shall have been stolen, taken, extorted, 
 obtained, embezzled or otherwise disposed of in such a manner as to 
 amount to a felony, either at common law or by virtue of this act, any 
 number of receivers at different times of such property, or of any 
 part or parts thereof, may be charged with substantive felonies in the 
 same indictment, and may be tried toother, notwithstanding that 
 the principal felon shall not be included in the same indictment, or 
 shall not be in custody, or amenable to justice. 
 
 Sect. 94 — Conviction for separate, on Indictment for joint, receiving.] 
 — If upon the trial of any two or more persons indicted for jointly 
 receiving any property, it shall be proved that one or more of such 
 persons separately received any part or parts of such property, it 
 shall be lawful for the jury to convict upon such indictment such 
 of the said persons as shall be proved to have received any part or 
 parts of such property. 
 
 Sect. 95 — Receivers, where principal Offence is a Misdemeanor.] — 
 Whosoever shall receive any chattel, money, valuable security, or 
 other property whatsoever, the stealing, taking, obtaining, converting, 
 or disposing whereof is made a misdemeanor by this act, knowing 
 the same to have been unlawfully stolen, taken, obtained, converted 
 or disposed of, shall be guilty of a misdemeanor and may be indicted 
 and convicted thereof, whether the person guilty of the principal 
 misdemeanor shall or shall not have been previously convicted thereof, 
 or shall or shall not be amenable to justice ; and every such receiver, 
 being convicted thereof, shall be liable, at the discretion of the court, 
 to be kept in penal servitude for any term not exceeding seven years, 
 and not less than three years \mwfive years, 27 & 28 Vict. c. 47, s. 2, 
 ante, p. 173], or to be imprisoned for any term not exceeding two 
 years, with or without hard labour, and with or without solitary 
 confinement, and, if a male under the age of sixteen years, with or 
 without whipping. 
 
 Sect. 96 — Venuein Indictment against Receivers.] — Whosoever shall 
 receive any chattel, money, valuable security, or other property 
 whatsoever, knowing the same to have been feloniously or unlawfully 
 stolen, taken,, obtained, converted, or disposed of, may, whether 
 charged as an accessory after the fact to the felony, or with a sub- 
 stantive felony, or with a misdemeanor only, be dealt with, indicted, 
 tried, and punished, in any county or place in which he shall have or 
 shall have had any such property in his possession, or in any county 
 or place in which the party guilty of the principal felony or misde- 
 meanor may by law be tried, in the same manner as such receiver 
 may be dealt with, indicted, tried, and punished in the county or 
 place where he actually received such property. 
 
 32 d: 33 Vict. c. 99 (The Habitual Criminals Act, 1869), s. 11— 
 Proof of knowledge that Goods were Stolen.] — Where any person, 
 W. U 
 
434 Receiving Stolen Goods. 
 
 ■who, either before or after the passing of this act, has been pre- 
 viously convicted of any offence specified in the first schednle 
 hereto (infra), and involving fi-aud or dishonesty, is found in the 
 possession uf stolen goods, evidence of such previous conviction 
 shall be admissible as evidence of his knowledge that such goods 
 have been stolen; and in any proceedings that may be taken against 
 him as receiver of stolen goods, or otherwise in relation to his 
 having been found in possession of such goods, proof may be given 
 of his previons conviction before evidence is given of his having 
 been found in possession of such stolen goods : Provided, that not 
 less than seven days' notice shall be given to such person that proof 
 is intended to be given of his previous conviction, and that he 
 will be deemed to have known such goods to have been stolen, 
 until he has proved the contrary. Moreover, where proceedings are 
 taken against any person for having in his possession stolen goods, 
 evidence may be given that there were found in the possession 
 of such person other goods stolen within the preceding period of 
 twelve months, and such evidence may "be taken into consideration 
 for the purpose of proving that such person knew the goods to 
 be stfflen which form the subject of the proceedings taken against 
 him. 
 
 Firit Schedule.']— Any felony not punishable with death also, or 
 the offence of uttering false or counterfeit coin, or of possessing 
 counterfeit gold or silver coin, or the offence of obtaining goods or 
 money by false pretences, or the offence of conspiracy to defi-aud, 
 or misdemeanor under 24 <& 25 Vict. c. 96, s. 59. 
 
 Indictment against a Receiver of Stolen Goods as for a substantive 
 Felorey. 
 
 Commencement as ante, p. 313] — one silver tankard Q' chattel, 
 money, valuable security, or other property whatsoeveir"'), of the goods 
 and chattels of J. N., "before then feloniously stolen, taken, md 
 carried away, feloniously did receive and have, he the said J. S. 
 at the time when he so received the said silver tankard as aforesaid 
 then well knowing the same to have been feloniously stolen, taken, 
 and carried away; against the form [as ante, p. 347]. Any number 
 of. receivers at different times of Stolen property may now he charged 
 with substantive felonies in the same indictment: 24 ^ 25 Tict. c 96, 
 s. 93. And where the indictment contains seveval counts for hrceny, 
 describing the goods stohn as the properly of different persons, it may 
 contain the like number of counts, with the same variations, for 
 receiving the same goods. R. v. Beeton, 1 Jien. 415 ; 2 C. if K. 
 960, 961 ; 18 L. J. \M. C.) 117. It is not necessary to state by 
 whom the principal felony was committed; R. v. Jervis, 6 C. Sf P. 
 156; and, if stated, it is not necessary to aver that the principal has 
 not been convicted. R. v. Baxter, 5 T. R. 83. 
 
 If it be alleged in the indictment that the principal felony was 
 committed by A. B., it must be proved that A. B. committed tlie 
 felony, otherwise the receiver must be acquitted, unless the variance 
 he amended. R. v. Woodford, 1 M. Sr Rob. 384. If, however, the 
 indictment state the larceny to have been committed by some persons 
 in the jurors unknown, it is no objection t/tat the grand jury at the 
 
Receiving Stolen Goods. 435 
 
 same assizes find a till for the principal felony against J. S. H. v. 
 Bush, R. ^ R. ZT2. An indictment charging that a certain evil- 
 disposed person feloniously stole certain goods, and that C. D. and 
 E. F. feloniously received the said goods, hnowimg them to be stolen, 
 was holden good against the receivers, as for a substantive felony. 
 R. V. Caspar, 2 Mood C. C. 101 ; 9 C. Sr P. 289. The defendant 
 may be convicted both on a count charging Mm as accessory before the 
 fact and on a count for receiving: R. v. Hughes, Bell, 242; 29 L. J. 
 (M. C.) 71. And where the first count of the indictment charged 
 the defendant with stealing certain goods, and the secotid viith receiv- 
 ing " the goods and chattels aforesaid so as aforesaid feloniously 
 stolen," it was held that a conviction on the latter count was good, 
 the words "so as aforesaid feloniously stolen" being immaterial. 
 R. V. Huntley, Bell, 238; 29 L. J. (M. C.) 70. As to the venue, 
 see ante, p. 36; R. v. Martin, \ Den. 398; 2 C. ^ JT. 950; 18 L. J. 
 (M. C.) 137; and R. v. Cryer, Dears. ^ B. 324; 26 L. J. (M. C.) 
 192. 
 
 Felony : penal servitude for not more than fourteen nor less than 
 five [27 ^ 28 Vict. c. 47, s. 2, ante, p. 173 J years, or imprisonment not 
 exceeding two years, with orr without hard labour, and with or 
 without solitary confinement {such confinement not exceeding (me 
 month at any one time, nor three months in any one year, 24 & 25 
 Vict, c, 96, s. 119, ante, p. 308); and, if a male under sixteen years 
 of age, wither without whipping {Id.). — 24 ^ 25 Vict. c. 96, s. 91. As 
 to requiring the offender to enter into recognizances and find sureties 
 for keeping the peace, Id. s. 117, ante, p. 307. 
 
 The statute extends to "chattels, money, valuable securities (see 
 ante, p 302), and other property whatsoever ;" and the receiver ur 
 receivers may be indicted and convicted as an accessory or accessories 
 after the fact, or for a substantive felony, whether the principal be or 
 be not convicted, or be or be not amenable to justice. 24 Sf 25 Vict, 
 c. 96, ss. 91, 93. 
 
 It may be useful to mention in this place, that the owner, prosecut- 
 ing the receiver or thief to conviction is entitled to restitution of his 
 property, except in the case of a valuable security bonS fide paid or 
 transferred, if a negotiable security, for a valuable consideration. 
 24 ^ 25 Vict. c. 96, s. 100 {ante, p. 305). As to the purchasing or 
 receiving of materials or tools embezzled by persons employed in the 
 woollen, worsted, linen, cotton, flax, mohair, or silk manufactures, 
 see 6 ij- 7 Vict. c. 40,. ss. 4, 5, 11. 
 
 Evidence. 
 
 Prove a larceny of the goods mentioned in the indictment, as 
 directed am,te,p. 314 et seq., for which purpose the principal felon is a 
 competent witness, and indeed to prove the whole case. R. v. Has- 
 lam, 1 Leach, 418. Where the only evidence, however, against 
 the alleged receiver is that of the thief, the presiding judge will 
 advise the jury to acquit. R. v. Robinson, 4^ F. & F. 43. And the 
 mere fact that the stolen goods were found upon the alleged re- 
 ceiver's premises on the day of the theft, is not sufficient to confirm 
 the evidence of the thief, so as to make it proper to convict. R. v. 
 Pratt, AiF.& F. 315. The confession of the principal (unless made 
 in the presence of and assented to by the receiver, R. v. Cox, 1 F. 
 & F. 90) is not admissible evidence against the receiver for any pur- 
 pose. R. v. Turner, 1 Mood. C. O 347. It is competent to the de- 
 u2 
 
436 Beceiving Stolen Goods, 
 
 fendant to disprove the guilt of the principal. Fast. 365. A con- 
 viction of the principal for embezzlement is sutf cient to warrant a 
 conviction of the receiver, by virtue of the express words of 24 <& 25 
 Vict. c. 96, s. 91. See R. v. FrampUm, Dears. & B. 585 ; 27 L. J. 
 {M. C.) 229. But it is not a crime punishable under s. 91 of 24 S 
 25 Vict. c. 96 (ante, p. 432), to receive stolen goods, knowing them 
 to have been stolen, if the stealing is not a crime either at common 
 law or under 24 S 25 Vict. c. 96, although the stealing is a felony 
 under 31 & 32 Vict. c. 116, «. 1 (ante, p. 308). B. v. Smith, L. R., 1 
 G C. B. 266; 39 L. J. (M. C.) 112. And therefore where A. and B. 
 were in partnership, and B. stole the partnership goods, and disposed 
 of them to the prisoner, who received them knowing them to have 
 been so stolen, and the prisoner was afterwards indicted and con- 
 victed as a receiver under 24 cfe 25 Vict. c. 96, s. 91, the conviction 
 was quashed. Id. It was intimated by the court that the proper 
 course in that case would have been to indict the prisoner as an 
 accessory before or after the fact to the felony, either at common 
 law or under 24 <& 25 Vict. c. 94, ss. 1, 3, there being circumstances, 
 independent of the receipt of the stolen goods, from which the jury 
 might have drawn the conclusion that he was such accessory. Id, 
 The mere receipt of stolen goods, however, does not at common law 
 constitute the receiver an accessory, but is a misdemeanor punish- 
 able by fine and imprisonment. Foster's Orown Law, p. 373 {ante, 
 p. 15). And it would seem that if, in the case of R. v. Smith, the 
 only thing that could have been proved against the prisoner was the 
 receiving with a guilty knowledge, he ought to have been indicted 
 for this common law misdemeanor. 
 
 Having proved the larceny, you must prove the goods stolen to 
 have been received by the defendant. And though there be proofW 
 a criminal intent to receive, and a knowledge that the goods were 
 stolen, if the exclusive possession still remain in the thief, a conviction 
 for receiving cannot be sustained. B. v. Wiley, 2 Den. 37; 20 L. J. 
 (M. C.) 4. So, a principal in the second degree, pa/rticeps criminis, 
 cannot at the same time be treated as a receiver. B. v. PerUm, 2 
 Den. 469 ; 21 L. J. (M. C.) 162. But a person having a, joint posses- 
 sion with the thief may be convicted as a receiver. R. v. Smith, 
 Dears. 494; 24 L. J. (M. C.) 136. Before the stat. 14 (fe 15 Jict. 
 c. 100, s. 14, if two defendants were indicted joinHy for receiving, a 
 joint act of receiving must have been proved, in order to convict 
 both. B. V. Messingham, 1 Mood. C. C. 257. See B. v. Archer, Id. 
 143: B. V. Parr, 2 M. & Boh. 346: B. v. Matthews, 1 Den. 596: R, v. 
 Dovey, 2 Den. 86 ; 20 L. J. (M. C.) 105 ; but this was amended by 
 the above section, which, although now repealed, was re-enacted by 
 24 & 25 Vict. c. 96, s. 94, and which enables the jury, on the trial of 
 an indictment against two or more persons for jointly receiving any 
 property, if it be proved that one or more of such persons separately 
 received any part of such property, to convict them separately of re- 
 ceiving such property. Where A., knowing that goods had been 
 stolen, directed B., his servant, to receive them into his premises, and 
 B., in pursuance of that direction, afterwards received them in A's 
 absence, B. also knowing that they had been stolen, they were held 
 to be indictable jointly. B. v. Parr, i M. & Boh. 346. Two or 
 more persons may be indicted jointly for receiving stolen property, 
 though each successively received the whole of the same at different 
 times ; and it makes no difference whether the receipt was direct 
 from the thief or from an intermediate person. R. v. Beardan, L. iJ., 
 
deceiving Stolen Goods. 437 
 
 1 C. a R. 31 ; 35 L. J. {M. C.) 171. Proof that the goods were 
 found in the defendant's possession is good presumptive evidence 
 of the fact; or it may be proved by the principal felon. If it be 
 proved that the defendant not only received the articles, but also 
 assisted in stealing them, he may still be convicted, provided some 
 other person assisted in the theft ; because the stealing and receiving 
 are both felonious, and a theft by several is a theft by each. See B. 
 V. Dyer, 2 East, P. C. 767 : R. v. Attwell, Id. 768 (ante, p. 8). The 
 actual manual possession or touch of the goods by the defendant, 
 however, is not necessaiy to. the completion of the offence of receiv- 
 ing ; it is sufiBcient if they ai-e in the actual possession of a person 
 over whom the defendant has a control, so that they would be forth- 
 coming if he ordered it. R. v. Smith, Dears. 494 ; 24 L^J. {M. C) 
 135. And a person who has never had manual possession of the 
 goods may be convicted of receiving, upon proof that he was present 
 aiding and abetting another receiver who was found in actual pos- 
 session of them. B. v. Rogers, 37 L. J. (M. C.) 83. Where three 
 persons were charged with larceny, and two others as accessories, in 
 separately receiving portions of the stolen goods : and the indictment 
 contained also two other counts, each, of them charging one of the 
 receivers separately with a substantive felony, in separately receiving 
 a portion of the stolen goods, it was ruled that, though the principals 
 were acquitted, the receivers might be convicted on the last two 
 counts of the indictment. R. v. Pulham, 9 C c6 P. 280. See R. v. 
 Hayes, 2M.& Rob. 156. If a husband, knowing that his wife has 
 stolen goods, receive them from her, he may be convicted of re- 
 ceiving. R. V. M'A thq/,L.d:C. 250 ; 32 i. J. (M. C.) 35. Husband 
 and wife were indicted jointly for receiving. The jury found both 
 guilty, and found also that the wife received the goods without the 
 control or knowledge of the husband, and apart from him, and that 
 "he afterwards adopted his wife's receipt." It was held that this 
 finding did not warrant the conviction of the husband. R. v. Dring, 
 Dears. & B. 329. A wife, in her husband's absence, and without has 
 knowledge, received stolen goods, and paid money on. account of 
 them. 'The thief and the husband afterwards met, and the latter 
 then learnt that the goods were stolen, and agreed on the price to be 
 paid for them, and paid the balance to the thief. On these facts the 
 husband was held to have been properly convicted of receiving. R. 
 v. Woodwwrd, L. & C. 122; 31 L. J. (M C.) 91. 
 
 And lastly, it must be proved that the defendant,. at the time he re- 
 ceived or bought the goods, knew them to be stolen. This is proved, 
 either directly, by the evidence of the principal feloUj or circumstan- 
 tially, by proving that the defendant bought them very much under 
 their valvw, 1 Bale, 619, or denied their being in his possession, or the 
 like. And, to show a guilty knowledge, other instances of receiving 
 goods of the prosecutor, from the same person, may, it seems, be 
 proved ; R. v. Dunn, 1 Mood. C. C. 146; even though they be the 
 subject of other indictments, and antecedent to the receiving in ques- 
 tion. R. V. Davis, 6 C. d P. 177.. So, evidence that, on various 
 former occasions portions of the commodity stolen, had been missed 
 by the prosecutor, and that the defendants, the alleged, thief and 
 receiver, had after such occasions been found selling such a com- 
 modity, and that which was sold on the last of these occasions 
 being identified as pait of that missed by the proseeutor, was held 
 admissible in proof of the guilty knowledge. R. r. NichoUs, 1 
 F. <& F. 51. See, however, B. v. Oddy, 2 Dm. 264 ;, 2D, L. J. (M. C.) 
 
438 Receiving Stolen Goods. 
 
 198, ante, p. 216. Additional means of proving guilty knowledge as 
 against receivers of stolen goods are provided by 32 S 33 Vict. c. 99 
 (The Habitual Criminals Act, 1869), s. 11, -which enacts, that where 
 any person, who either before or after the passing of that act has 
 been previously convicted of any offence specified in the first 
 schedule thereto [viz. any felony not punishable with death also, 
 or the offence of uttering false or counterfeit coin or of possessing 
 counterfeit gold or silver coin, or the offence of obtaining goods 
 or money by false pretences, or the offence of con.spiracy to defraud, 
 or misdemeanor under 24 (& 25 Vict. c. 96, s. 58], and involving 
 fraud or dishonesty, is found in the possession of stolen goods, evi- 
 dence of such previous conviction shall be admissible as evidence 
 of his knowledge that such goods have been stolen ; and in any 
 proceedings that may be taken against him as receiver of stolen 
 goods, or otherwise in relation to his having been found in possession 
 of such goods, proof may be given of his previous conviction before 
 evidence is given of his having been found in possession of such 
 stolen goods ; Provided that not less than seven days' notice shall he 
 given to such person that proof is intended to be given of his previous 
 conviction, and that he will be deemed to have known such goods to 
 have been stolen imtil he has proved the contrary. (R. v. Daoii, 
 L. R., 1 C C. R. 272, infra.) And it is further enacted by the 
 same section, that where proceedings are taken against any person 
 for having in his possession stolen goods, evidence may be given 
 that there were found in the possession of such person other goods 
 stolen within the preceding period of twelve months, and such 
 evidence may be taken into consideration for the purpose of proving 
 that such person knew the goods to be stolen which form the sub- 
 ject of the proceedings taken against him. Notwithstanding the 
 language of the proviso in the above section, a prisoner who is 
 indicted for receiving stolen goods, and who has been duly served 
 with the notice in the section mentioned that proof is intended to be 
 given of his previous conviction, and against whom a previous con- 
 viction for one of the offences mentioned in the schedule is proved, 
 will not " be deemed to have known such goods to have been stolen 
 until he has proved the contrary," — in other words proof of the 
 previous conviction has not the effect of throwing it upon the pri- 
 soner to prove that when he received the stolen goods he did not 
 know them to have been stolen, nor of relieving the prosecution fi'om 
 the necessity of proving that the prisoner knew that the goods had 
 been stolen. R. v. Datis, L. R., 1 C. C. R. 272. This decision is 
 in accordance with a previous ruling in R. v. Harwood, 11 Cox, 388, 
 per Keating, J. The following points were also raised in the last- 
 mentioned case, but not decided: (1) Whether, on an indictment for 
 receiving a bank note knowing it to have been stolen, the above sec- 
 tion 11 of the Habitual Criminals Act applies, bank notes not being 
 " stolen goods ;" (2) Whether, on an indictment for receiving stolen 
 goods, that section applies where the prisoner was not " found in the 
 possession" of such goods at the time of his apprehension, although he 
 had been in possession of them at some previous time ; (3) Whether 
 that section applies on an indictment containing counts charging the 
 prisoner with stealing and receiving, or whether it only applies where 
 theindictment is merelyforreceivingandnot where there isalsoacount 
 for stealing. Id. A boy stole a chattel from his master, and after it 
 had been taken from him in his master's presence, it was, with the 
 master's consent, restored to him again, in order that he might 
 
Receiving Stolen Goods. 439 
 
 sell it to the defendant, to whom he had been in the habit of selling 
 similar stolen articles. He accordingly sold it to the defendant, 
 ■who, being indicted for feloniously receiving it of an evil-disposed 
 person knowing it to be stolen, was convicted, and, notwithstanding 
 objection made, sentenced. R. v. Lyons, C. <S> Mar. 217. But this 
 case has since been held not to be law, and a defendant not to be 
 liable to conviction under such circumstances, inasmuch as at the 
 time of the receipt the goods are not stolen goods. R. v. Dolcm, 
 Dears. 463 ; 24 L. J. {M. C.) 59. Stolen goods were sent by the 
 thief in a parcel by railway, addressed to the prisoner. An officer 
 of the railway company, from information he had received, examined 
 the parcel at the railway station at the place of its destination, and 
 stopped it. It was called for by the thief on the day of its arrival 
 and refused to him. Next day a porter of the company, by the 
 officer's direction, took it to a house which the thief had designated, 
 and it was there received by the- prisoner. It was held that the 
 prisoner could not be convicted of receiving, as the goods had ceased 
 to be stolen goods at the time when he received them. R. v. Schmidt, 
 L. B., 1 a a R. 15; 35 L. J. {M. C.) 94. 
 
 A. and B. were indicted, the one for stealing, the other for receiv- 
 ing, six notes of lOOZ. each. A. stole the notes, ©hanged them into 
 notes of 20Z. each, some of which he gave to B.; and it was holden 
 that B. could not be convicted, for he did not receive the notes that 
 were stolen. R. v. Walhley, i C. <& P. 132. Therefore, if the goods 
 stolen have been altered between the time of the larceny and that of 
 the receipt, so as to pass under a new denomination, the indictment 
 should correspond with the fact. And where the principal was in- 
 dicted for sheep-stealing, and the accessory charged with receiving 
 " twenty pounds of mutton, parcel of the goods," etc., it was holden 
 good. R. v. Cowell, 2 East, P. C. 617, 781. 
 
 Recent possession of stolen property is evidence, either that the 
 person in possession stole the property, or that he received it know- 
 ing it to be stolen, according to the circumstances of the case. 
 Where the prisoner was found in the recent possession of stolen 
 property, of which he could give no satisfactory account, and it 
 might reasonably be inferred from the circumstances that he was 
 not the thief, it was held that there was evidence for the jury that 
 he received it knowing it to have been stolen. R. v. Langmead, L. 
 & a 427. See also R. v. Deer, L. <& C. 240; 32 L. J. (M. C.) 33, 
 ante, p. 342. 
 
 Indictment against a Receiver where the principal Offence is a 
 
 ammencemmtas ante,page 313]— one silver tankard (" any chattel, 
 money, valuable security, or other property whatsoever") of the goods 
 and chattels of J. N., then lately before unlawfully, knowingly, and 
 designedly obtained (" stolen, taken, obtained, converted or disposed of") 
 from the saw J. N. by false pretences unlawfully did receive and have, 
 tie the said J. S,, at the time when he so received the said silver 
 tankard as aforesaid, then well knowing the same to have been 
 unlawfully, knowmgly, and designedly obtained from the said J. N. 
 by false pretences; against the form [as ante, p. 347]. The indict- 
 ment must allege the goods to have been obtained by false pretences, and 
 Imovm to have been so; it is not enough to allege them to have been 
 
440 Receiving Stolen Goods. 
 
 "unlavfully obtained, taken, and carried away." R. v. Wilson, 2 
 Mood. C. C. 52. The venue may be laid as in the last case. 
 
 Misdemeanor : penal servitude for not more than seven nor less 
 than five [27 4" 28 Vict. c. 47, s. 2, ante, p. 173] years, or imprison- 
 ment not exceeding two years, with or without hard labour, and with 
 or without solitary confinement {such confinement not exceeding one 
 month at any one time, nor three months in any one year, 21 ^ 25 
 Vict. c. 96, s. 1 19, ante, p. 308); and, if a male under sixteen years 
 of age, with or without whipping (Id.).-^24: Sf 25 Vict. c. 96, s. 95. 
 As to fining the ojffender and requiring him to enter into recognizances 
 and find sureties for keeping the peace and being of good behaviour, 
 see 24 Sf 25 Vict. c. 96, s. 1 17, ante, p. 307. 
 
 The statute extends to ' ' chattels, money, valuable securities, and 
 oilier property whatsoever," the stealing, etc., whereof is a misde- 
 meanor ; and tlie receiver may be indicted and convicted, whether the 
 principal shall or shall not have been previously convicted, or shaU or 
 shall not be amenable to justice. 24 ^ 25 Vict. e. 96, s. 95. 
 
 Evidence. 
 Prove the principal offence, and the receipt and guilty knowledge 
 of the defendant, as in the last case. 
 
 Indictment against the Principal and Receiver jointly . 
 
 After the conclusion of the indictment against the principal, continue 
 it in the same paragraph, thus ;] — and the jurors aforesaid, upon their 
 oath aforesaid, do &rther present, that J. S. afterwards, to wit, on the 
 first day of June, in the year aforesairl,** the goods and chattels afore- 
 said (" chattels, money, valuable security, or other goods whatsoever"), 
 so as aforesaid feloniously stolen, taken, and carried away, feloniously 
 did receive and have, he the said J. S. then well knowing the said 
 goods and chattels to have been feloniously stolen, taken, and cai-ried 
 away; against the form [^as ante, p. 347]. 
 
 Receivers, where the stealing is fehmy by common law or by slat. 
 24 ^ 25 Viet. c. 96, may be indicted as accessories after the fact, and 
 are punishable vnth penal servitude for not more than fourteen and 
 not less than five [27 Sf 28 Vict. c. 47, s. 2, ante, p. 173] years, or 
 imprisonment not exceeding two years, with or without hard labour, 
 and with or without solitary confinement {such confinement not ex- 
 ceeding one month at any one time, nor three months in any one year ; 
 24 Sf 25 Vict. c. 96, s. 119, dn/e, p. 308) ; and, if a male under 
 sixteen years of age, with or without whipping (Id.). — 24 Sf 25 Vict. 
 c. 96, «. 91. As to requiring the offender to enter into recognizances 
 and find sureties for keeping the peace. Id. s. 117, ante, p. 307. 
 
 Evidence. 
 Prove the larceny as directed ante, p. 314 et seq., and prove the 
 offence against the receiver, as directed under the last precedent bat 
 one. 
 
 Indictment against the Receiver as Accessory, the Primcipal having 
 
 been convicted. 
 Middlesex, to wit : — The jurors for our lady the Queen upon their 
 oath present, that heretofore, to wit [" at the general sessions of the 
 
Receiving Stolen Letters. '441 
 
 delivery of the gaol of," etc., etc. — so continuing the caption of the 
 fomwr indictment— ^^ it was presented, that one J. T." etc., continuing 
 the indictment to the end; reciting it, however, in the past a/nd not in the 
 present tense']: upon which said indictment the said J. T., at the 
 session of gaol delivery aforesaid, was duly convicted of the felony 
 and larceny aforesaid. And the jurors aforesaid, upon their oath 
 aforesaid, do further present, that J. S., after the committing of the 
 said larceny and felony as aforesaid, to wit, on the first day of June, 
 in the year last aforesaid [eic, as in the last precedent, from the*']. 
 
 Give in evidence an examined copy of the record of the conviction 
 of the principal, or a certificate thereof .under the hand of the proper 
 officer, pursuant to 14 (fe 15 'Vict. c. 99, s. 13 {ante, p. 241), as proof 
 of his conviction, and of the commission of the larceny. It is not 
 necessary that it should appear from the record that the principal 
 was attainted ; if it appear that he was convicted, it is sufiicient. 
 R. V. Baldwin, 3 Camp. 265 : R. v. Hyman, 2 East, P. C. 782. And 
 although the record be erroneous, it is good evidence against the 
 accessory, until reversed. R. v. Baldwin, 3 Camp. 265 •, R. & R. 
 241. 
 
 After thus proving the larceny and conviction, prove the offence 
 of receiving the stolen property, as directed ante, p. 436. 
 
 KECEIVING STOLEN LETTEKS, ETC. 
 
 Statute. 
 1 W.i <& I 'Vict. c. 36, s. 30.] — Every person who shall receive 
 any post-letter or post letter-bag, or any chattel or money, or valuable 
 security, the stealing, or taking, or embezzling, or secreting whereof, 
 shall amount to a felony under the post-office acts (see ante, p. 374), 
 knowing the same to have been feloniously stolen, taken, embezzled, 
 or secreted, and to have been sent or to have been intended to be 
 sent by the post, shall be guilty of felony, and may be indicted and 
 convicted either as an accessory after the fact, or for a substantive 
 felony, and in the latter case, whether the principal felon shall or 
 shall not have been previously convicted, or shaU or shall not be 
 amenable to justice ; and every such receiver, howsoever convicted, 
 sliaU be liable to be transported beyond the seas for life. See 7 TF. 4 
 <& 1 Vict. e. 36, s. 41 {amte, p. 376). 
 
 Indictment against a Receiver of stolen Letters, etc., as for a 
 
 substantive Felony. 
 
 Commencement as ante, p. 313]— one post-letter (" amy post-letter 
 
 or post letter-bag, or any chattel or money, or valuable security," etc.) 
 
 the property of the postmaster-general, before then from and out of 
 
 a certain post letter-bag feloniously stolen, taken and carried away 
 
 [as the case may be (see ante, p. 374)], (" stolen, taken, embeszhd and 
 
 Secreted ), feloniously did receive and have, he the said J. S. then 
 
 u5 
 
442 Embezzlement. 
 
 well knowing the same post-letter to have been feloniously stolen, 
 taken and carried away, from and out of the said post letter-bag as 
 aforesaid, and to have been sent (" sent or intended to be sent") by 
 the post; against the form [as ante, p. 347]. As to the venue, see 
 ante, p. 25. The property may be laid in the postmaster-general, and 
 it is not necessary to allege or prove any value. {See ante, p. 375.) 
 
 Felony : penal servitude for life or for not less than Jive [27 <£ 28 
 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment not exceeding four 
 years, 7 W. 4. dh 1 Vict. c. 36, ss. 30, 41 {ante, p. 376) ; 20 <& 21 
 Vict. c. 3, s. 2 (ante, p. 172), with or without hard labour, and with 
 or without so.litary confinement, 7 W. A: & 1 Vict. c. 36, s. 42 (ante, p. 
 376), such confinement not exceeding one month at any one time, nor 
 three months in any one year, 7 W.i & 1 Vict. c. 90, s. 5. 
 
 This offence is not triable at quarter sessions, 5 c6 6 Vict. c. 38, s. 1 
 (ante, p. 104). 
 
 Evidence. 
 
 Prove the felony as directed ante, p. 380; then prove the receipt 
 and guilty knowledge, as directed ante, p. 436 ; and also prove that 
 the defendant, at the time he received the letter, etc., knew that it 
 had been sent, or that it was iutended to have been sent, by the post. 
 This may be shown by the post-mark on the letter, or by the con- 
 tents of the letter, if brought to the defendant's knowledge, or by 
 other circumstances from which it may be inferred. {See ante, 
 p. 208.) 
 
 Sect. 2. 
 embezzlement. 
 
 BY CLERKS OR SERVANTS. 
 
 Statute. 
 
 24 <fe 25 Vict. c. 96, s. 68 — Embezzlement by Clerhs or Semantt 
 generally.'] — ^Whosoever, being a clerk or servant, or being employed 
 for the purpose or in the capacity of a clerk or servant, shall fraudu- 
 lently embezzle any chattel, money, or valuable security which shall 
 be delivered to or received or taken into possession by him for or in 
 the name or on the account of his master or employer, or any part 
 thereof, shall be deemed to have feloniously stolen the same from his 
 master or employer, although such chattel, money, or security was 
 not received into the possession of such master or employer, other- 
 wise than by the actual possession of his clerk, servant, or other 
 person so employed : and being convicted thereof shall be liable, at 
 the discretion of the court, to be kept in penal servitude for any 
 term not iexceeding fourteen years and not less than three years 
 \nofm five years, 27 S 28 Vict. c. 47, s. 2, ante, p. 173], or to be im- 
 prisoned for any term not exceeding two years, with or without hard 
 labour, and with or without solitary confinement, and, if a male under 
 the age of sixteen years, with or without whipping. 
 
 Sect. 71 — Distinct acts of Embezzlement may be charged in same 
 
Enibezzhmmt. 443 
 
 Indictment.']— For preventing difficulties in the prosecution of of- 
 fenders in any case of embezzlement, fraudulent application or dis- 
 position, hereinbefore mentioned, it shall be lawful to charge in the 
 indictment, and proceed against the offender for, a,ny number of 
 distinct acts of embezzlement, or of fraudulent application or dis- 
 position, not exceeding three, which may have been committed by 
 him against her Majesty or against the same master or employer, 
 within the space of six months from the first to the last of such 
 acts ; and in every such indictment, where the offence shall relate 
 to any money or any valuable security, it shall be sufficient to allege 
 the embezzlement, or fraudulent application or disposition, to be of 
 money, without specifying any particular coin or valuable security; 
 and such allegation, so far as regards the description of the pro- 
 perty, shall be sustained, if the offender shall be proved to have 
 embezzled, or fraudulently applied or disposed of, any amount, 
 although the particular species of coin or valuable security of which 
 such amount was composed shall not be proved ; or if he shall be 
 proved to have embezzled, or fraudulently applied or disposed of, 
 any piece of coin or any valuable security, or any portion of the 
 value thereof, although such piece of coin or valuable security may 
 have been delivered to him in order that some part of the value 
 thereof should be returned to the party delivering the same, or to 
 some other person, and such part shall have been returned accord- 
 ingly. 
 
 Sect. 72 — Person indicted not to he acquitted if Larceny he proved 
 and vice versl] — If upon the trial of any person indicted for embezzle- 
 ment, or fraudulent application or disposition as aforesaid, it shall be 
 proved that he took the property in question in any such manner as 
 to amount in law to larceny, he shall not by reason thereof be entitled 
 to be acquitted, but the jury shall be at liberty to return as their 
 verdict that such person is not guilty of embezzlement, or fraudulent 
 application or disposition, but is guilty of simple larceny, or of lar- 
 ceny, as a clerk, servant, or person employed for the purpose or in 
 the capacity of a clerk or servant, or as a person employed in the 
 public sei-vice or in the police, as the case may be, and thereupon 
 «uch person shall be liable to be punished in the same manner as 
 if he had been convicted upon an indictment for such larceny ; and, 
 if upon the trial of any person indicted for larceny, it shall be proved 
 that he took the property in question in any such manner as to 
 amount in law to embezzlement, or fraudulent application or dispo- 
 sition as aforesaid, he shall not by reason thereof be entitled to be 
 acquitted, but the jury shall be at liberty to return as their verdict 
 that such person is not guilty of larceny, but is guilty of embezzle- 
 ment, or fraudulent application or disposition, as the case may be, 
 and thereupon such person shall be liable to be punished in the 
 same manner as if he had been convicted upon an indictment for 
 such embezzlement, fraudulent application or disposition ; and no 
 person so tried for embezzlement, fraudulent application or dispo- 
 sition, or larceny as aforesaid, shall be liable to be afterwards prose- 
 cuted for larceny, fraudulent application or disposition, or embezzle- 
 ment, upon the same facts. 
 
 f 31 (fi 32 Vict. c. 116, s. 1 — Embezzlement ly partners or Joint owners 
 of the partnership or joint. property.] — Ante,p. 308. 
 
 Sect, i— Provisions of li, & 19 Vict. c. 126, extended to embezzlement 
 
444 Embezzlement. 
 
 h/ chrhs or servants.'] — All the provisions of the act passed in the 
 session of parliament held in the eighteenth and nineteenth years of 
 her present majesty's reign, intituled, " An Act for diminishing 
 expense and delay in the administration of Criminal Justice in cer- 
 tain cases" [ante, p. 309 et seq.'\, shall extend and be applicable to 
 the offence of embezzlement by clerks or servants, or persons em- 
 ployed for the purpose or in the capacity of clerks or servants, and 
 the said act shall henceforth be read as if the said offence of em- 
 bezzlement had been included therein. 
 
 14 dc 15 Vict. c. 100, 8. 5 — Indictment.'] — Ante, p. 56. 
 
 Sect. 18 — Indictment — Coin and Bank-notes.] — Ante, p. 59. 
 
 Indictment for Embezzlement by Clerk or Servant under 24 cfe 25 Vict, 
 c. 96, s. 68. 
 
 Central Criminal Court, to wit : The jurors for our 'lady the Queen 
 upon their oath present, that J. S., on the first day of June, in the 
 
 year of our Lord , being then employed as clerk (" clerk or 
 
 servant, or being employed for the purpose, or in the capacity of a 
 clerk or servant ") to J. N., did then, and whilst he was so employed as 
 aforesaid, receive and take into his possession certain money (" chattel, 
 money, or valuable security") to a large amount, to wit, to the amount 
 of ten pounds, for and in .the name and on the account of the said 
 J. N., his master (" master or employer "), and the said money then 
 fraudulently and feloniously did embezzle ; and so the jurors aforesaid, 
 upon their oath aforesaid, do say, that the said J. S., then in manner 
 and form aforesaid, the said money, the property of the said' J. N., 
 his said master, from the said J. N., his said master, feloniously did 
 steal, take, and carry away ; against the form [as ante, p. 347]. If 
 the defendant has been guilty of other acts of embezzlemmt within the 
 period of six months, the folhwing count may be added: — And the 
 jurors aforesaid, upon their oath aforesaid, do further present, that 
 the said J. S. afterwards, and within six calendar months from the 
 time of the committing of the said offence in the first count of this 
 
 indictment charged and stated, to wit, on the day of , in 
 
 the year aforesaid, being then employed as clerk to the said J. N., 
 did then, and whilst he was so employed as last aforesaid, receive 
 and take into his possession certain other money to a large amount, 
 to wit, to the amount of ten pounds, for and in the name and on the 
 account of the said J. N., his said master, and the said last-mentioned 
 money then, and within the said six calendar months, fraudulently 
 and feloniously did embezzle ; and so, etc., as in the first count to the 
 end. Any number of acts, not exceeding three, committed against the 
 same master within six calendar months from the first to the last of 
 such acts, may be charged in the indictment. 24 & 25 Vict. c. 96, 
 s. 71. And the proper course is to charge them in separate counts. B. 
 V. Pwrchase, C. & Mar. 617. The indictment must show hy express 
 words that the different sums were embezzled within the six months. 
 Id. : R. V. Noake, 2 C. tS: K. 620. Before the recent statutes it was 
 necessary, in all cases of embezzlement, to state specifically in the in- 
 dictment some article embezzled. R. v. Fumeaux, R. & B. 335 : R- 
 V. Flower, 8D.& R.512: R. v. Tyers, R. & R. 402. But now, in ecery 
 
Emhezzlement. 445 
 
 case (except where the offence relates to a chattel, which must be de- 
 scribed as in an indictment for larceny), it is sufficient to allege the 
 CMbezzUment to be of money, without specifying any particular com or 
 valuable security; 24 <fc 25 Vict. c. 96, s. 71 1 nor is it necessary that 
 the exact amount or value of the thing embezzled should be stated; K. 
 V. Carson, R. <& R- 303 ; and in case the indictmmt alleges the embezzle- 
 ment ofnloney, such allegation, so far as regards the description of the 
 property, is sustained by proof that the offender embezzled any amownt, 
 although the particular species of coin or valuable security of which 
 such amownt was composed shall not be proved; or by proof that he 
 embezzled any piece of coin or any vahiaUe security, or any portion of 
 the value thereof, although such piece of coin or valuable security may 
 have been delivered to him in order that some part of the value thereof 
 should be returned to the party delivering the same, or to some other 
 person, and such part shall have been returned accordingly. 24 (& 25 
 Vict. c. 96, s. 71 ; 14 <£ 15 Vict. c. 100, s. 18. But an indictment 
 alleging the embezzlement of money is not sustained by evidence of the 
 embezzlement of a cheque, unless it be also proved that the prisoner 
 cashed the cheque and so converted it into money. R. v. Keena, L. R., 
 
 1 C. C. R. 113; 37 L.J. {M. C.) 43. The indictment must allege the 
 goods, etc., embezzled to be the property of the master; R. \. McGregor, 
 3 Bos. <& P. 106; R. & R. 23; R. v. Beacall, 1 Mood. C. C. 15: and 
 it has been said that it rnust show that the defendant was servant, etc., 
 at the time. R. v. Somerton, T B.&C. 463 : see, however, R. v. Lovell, 
 
 2 M.& Rob. 236, post, p. 455. It is usual and prudent to state that 
 the defendant feloniously did embezzle, etc. ; but it is not absolutely 
 necessary, if the conclusion state that he feloniously -stole. R. v. 
 Orighton, R. & R. 62, It is not necessary to state from whom the 
 money, etc., was received. R. v. Beacall, 1 C. <& P. 464. But as this 
 may operate as a hardship upon the prisoner, thejvdge before whom he 
 is to be tried will, upon application, order the prosecutor to furnish the 
 prisoner with a particular of the charge. R. v. Bootymom, b C. & P. 
 300 : R. V. Hodgson, S C. <& P. 422. As to the venue, see ante, pp. 35, 
 36, and R. v. Mwrdoek, 2 Den. 298 ; 21 L. J. (M. C.) 22. 
 
 Declared to be larceny, and punishable with penal servitude for not 
 more than fawrteen nor less than five [27 & 28 Viet. c. 47, s. 2, ante, 
 p. 173] years, or by imprisonment for any term not exceeding two years, 
 vjith or without hard labour, and with or without solitary ccmfinemeni 
 (such confinement not exceeding one month at any one time, nor three 
 months in any one year, 24 <& 25 Vict. c. 96, s. 119 (ante, p. 308); and, 
 if a male under sixteen years of age, with or without whipping. — 24 & 
 25 Vict. c. 96, s. 68. As to requiring the offender to enter into recog- 
 nizances and find sureties for keeping the peace. Id. s. 117, ante, p. 307. 
 
 If it be proved that the defendant toohthe property in question in any 
 such manner as to amownt in law to larceny, he is not by reason thereof 
 entitled to be acquitted, but the jury may return as their verdict that he 
 is not guilty of embezzlement, but is guilty of simple larceny, or of 
 larceny as a clerk, servant, etc., cmd thereupon he is liable to be punished 
 as for such larceny. 24 <& 25 Vict. c. 96, s. 72. But it would seem 
 that a general verdict of guilty cannot be sustained upon evidence of 
 larceny only. R. v. Gorbutt, Dears. & B. 166 ; 26 L. J. (M. C.) 47. 
 
 As to embezzlement by officers and servants of the Bank of England, 
 or of Ireland, see 24 d: 26 Vict. c. 96, s. 73 ; R. v. Aslett, R. ^ iJ. 67: 
 R. V. Bakewell, R. & R. 35; by officers and servants of the South Sea 
 Company, see 24 G. 2, c. 11, ^. 3, and A & 6 Vict. c. 56, s. 1. As to. 
 ■embezzlement and fraudulent application or disposition by persons in 
 
446 Embezzlement. 
 
 the public service or in thepolice, see 24 <6 25 Vict. c. 69, ss. 70, 71 {post, 
 p. 465), and R. v. Lm>ell, iM.& Rob. 236 : R. v. Moah, Dears. 626; 25 
 X. J. {M. C.) 66. .4« to embezzlement of letters, etc., by servants of the 
 fost-office, seel W. i SI Vict. c. 36, s. 26 (ante, p. 374). And see R. 
 V. Pooley, R. & R.\2: R. v. Ellins, Id. 188 : R. v. Ramon, Id. 232 : 
 iZ. V. Plumer, R. <Sk R. 264 : R. v. SAarpe, 1 Mood. C. C. 125 : R. v. 
 Townsend, C. & Mar. 178. J.« to embezzlement of naval and military 
 stores, see post. Part II., Sect. 6 ; and as to embezzlement from Chelsea 
 Hospital, see 7 G. 4:, c. 16; from Greenwich Hospital, 10 G. 4, c. 26; 
 /toto poorhmises, 55 ff. 3, c. 137; and from warehouses through the 
 miscimduct of eustom-house officers, 16 <& 17 Vict. c. 107, s. 95. .4s to 
 emftezzfemewi by clerks and other offi.cers of joint-stock banhing com- 
 panies, see 7 G. i, c. 46 ; 1 <£ 2 Vict. c. 96 i R. v. Atkinson, 2 Mood, 
 a C. 278; a & Mar. 526 : and R. v. Pritchard, i. <* G 34; 30 L. J. 
 (M. C.) 169; {ante, pp. 43, 44.) As to embezzlement of materials, tools, 
 etc., by persons employed in the woollen, linen, cotton, flax, mohair, or 
 silk manufacture, «ce 6 <fe 7 Vict.c. 40, ss. 2, 3, 11. As to embezzlement 
 by any person appointed to any office or service by or wider any local 
 marine board, see 25 <fc 26 Vict. c. 63, s. 16. 
 
 Evidence. 
 Prove that the defendant, at the time he received the chattel, 
 money, or valuable security, was clerk or servant to J. N., or em- 
 ployed for the purpose or in the capacity of a clerk or servant as 
 stated in the indictment. A female servant is within the meaning 
 of the act. R. v. Smith, R. & R. 267. So is an apprentice, though 
 under age. R. v. Mellish, R. & R. 80. The statute is not confined 
 to the clerks and servants of persons in trade, but extends to the 
 clerks and servants of all persons whomsoever, if they be employed 
 to receive money, etc. ; and therefore a person employed as account- 
 ant and treasurer to the overseers of the poor, whose duty it is to 
 receive and pay monies receivable and payable to them, is a clerk 
 and servant within the statute. R. v. Squire, R. <& R. 349. See E. 
 v. Townsend, 1 Den. 167 ^iC.&K. 168 : R. v. Adey, 1 Den. 578; 19 
 L. J. {M. C.) 149. A collector of poor and other rates within the 
 parish of St. Paul, Covent Garden, was held to be rightly described 
 as servant to the committee of management of the affairs of that 
 parish (appointed under the stat. 10 G. 4, c. 87), though he was 
 elected by the vestrymen of the parish. R. v. Callahan, S C.S P. 
 154. See now 12 <& 13 Vict. c. 103, s. 15. So, a clerk of a savings- 
 bank was held to be properly described as clerk to the trustees, 
 though elected by the managers. R. v. Jenson, 1 Mood. C. C. 434. 
 An assistant overseer, elected by the parishioners in vestry under 
 69 G. 3, c. 12, s. 7, who fix his duties and salary, is rightly described 
 as the servant of the inhabitants of the parish, in an indictment 
 charging him with embezzling monies collected by him for the poor 
 rate. R. v. Carpenter, L. R., 1 C. C. R. 29 ; 35 L. J. {M. C.) 169. 
 The mode by which the defendant is remunerated for his service is 
 immaterial. Where a defendant, who was employed as a master of 
 a barge, to carry out and sell coals, and was allowed a portion of 
 the profits, after deducting the price of the coals at the colliery, for 
 his labour, took a quantity of coals, sold them, received the price, 
 and absconded with the money ; it was holden by a majority of the 
 judges, that he was a servant within the meaning of the act. R. f. 
 Hartla/, R. & R. 139. So, where the defendant was employed as a 
 
Embezzlement. 447 
 
 traveller to take orders and collect money, was paid by a per-centage 
 npon the orders he got, paid his own expenses, did not hve with the 
 prosecutors, and was employed as traveller by other persons also ; 
 he was holden to be a clerk to the prosecutors, withm the meaning 
 of the act. B. v. Carr, R. <& B. 198 : B. v. Hoggms, Id. 145 ; see 
 B. V. me, L. cfc a 29 ; 30 L. J. (M. C.) 142. And where the 
 cashier of a firm had, besides his salary, a per-centage on the profits 
 made by the firm, but was not tp be liable for its losses, and had no 
 control over the management of the business, it was held that he 
 might be indicted as a servant for embezzling the firm's monies. 
 By. Macdonald, L. (&C.85; 31 L. J. {M. C.) 67. The defendant 
 entered into an agreement with the prosecutor, whereby he undertook 
 to take charge of the prosecutor's glebe-land, his wife undertaking the 
 dairy and poultry, at 15s. a week, till Michaelmas, 1850, and after- 
 wards at a salai-y of 251. a year, and a third of the clear annual 
 profits, after all expenses of rent, rates, labour, and interest on 
 capital, etc., were paid, on a fair valuation, made from Michaelmas 
 to Michaelmas ; three months' notice on either side to be given, at 
 the expiration of which time a cottage, which was to be occupied by 
 the defendant as bailiff, in addition to his salary, was to be vacated. 
 It was held that this was not a contract of partnership, but an agree- 
 ment for the hire of the defendant as a labourer : and that he was 
 rightly convicted of embezzlement, in fi-audulently denying the 
 receipt of monies which he had received for and on account of the 
 prosecutor, though such denial was after Michaelmas, the period 
 agreed on for the valuation to be made and the profits ascertained. 
 B. V. Woriley, 2 Den. 333; 21 L. J. (M. C.) 44. The case of B. v. 
 Hartley, ante,p. 446, and the cases cited after it, were decided before 
 the passing of 31 & 32 Vict. c. 116, s. 1 (ante, p. 308), which enacts, 
 that if any person being a member of any copartnership, or being 
 one of two or more beneficial owners of any money, goods, or effects, 
 bills, notes, securities, or other property, shall embezzle any such 
 money, goods, or effects, bills, notes, securities, or other property of 
 or belonging to any such copartnership or to such joint beneficial 
 owners, every such person shall be liable to be dealt with, tried, 
 convicted, and punished for the same as if such person had not been 
 or was not a member of such copartnership or one of such beneficial 
 owners. Where the prosecutors, manure manufacturers, engaged 
 the defendant, who kept a refreshment house at B., to get orders for 
 the manure, on which orders they supplied it from their stores ; the 
 defendant was to collect the money, and pay it over to them, and 
 send a weekly account, and was called agent for the B. district : " he 
 was to go through the county and see the farmers, and get orders, 
 and to be continually during the season among the farmers :" subse- 
 quently the prosecutors sent large quantities of manure to stores at 
 B., which were under the defendant's control, who took them in his 
 own name, and paid the rent for them, being repaid such rent by 
 the prosecutors when their accounts were adjusted ; and the defend- 
 ant signed a proposal to a guarantee society to insure the prosecu- 
 tors, which stated that his salary was 1^. a year, besides commission, 
 which was estimated at 651. a year; and the prosecutors deposed 
 that at this time they had agreed to give the salary of 11. a year: 
 the defendant was held to be an agent, and not a servant within the 
 statute. B. v. Walker, Dears. <& B. 600 ; 27 L. J. {M. C.) 207. So, 
 where the defendant was employed to obtain orders for the sale of 
 iron manufactured by the prosecutors, and was to receive a commis- 
 
448 Embezzlement. 
 
 sion on the orders he got; it being his duty to account to the prose- 
 cutors for all money he should receive, but it was not expressly 
 found to be his duty to receive money ; he was held not to be a clerk 
 or servant, etc. within the statute. R. v. May, L. d C.13; 30 L.J. 
 (M. C.) 81. The conclusion to be drawn from the cases appears to 
 be, that a commercial traveller, whether paid by commission or 
 salary, who is under orders to go here and there, is, but that a com- 
 mission agent is not, a clerk or servant, or person employed for the 
 purpose or in the capacity of a clerk or servant, within 24 dk 25 Vict. 
 c. 96, s. 68. Thus, where the prisoner was employed by the prose- 
 cutors as their agent for the sale of coals on commission, and to 
 collect monies in connexion with his orders, but he was at liberty to 
 dispose of his time as he thought best, and to get or abstain from 
 getting orders as he might choose, he was held not to be a clerk or 
 servant within the statute. S. v. Bowers, L. R., 1 C. C. R. 41 ; 35 
 L. J. {M. C.) 2G6. In delivering judgment in that case, Erie, C. J., 
 observed, " The cases have established that a clerk or servant 
 must be under the orders of his master, or employed to receive 
 the monies of his employer, to be within the statute; but if a 
 man be intrusted to get orders and to receive money, getting the 
 orders when and where he chooses, and getting the money when and 
 where he chooses, he is not a clerk or servant within the statute." 
 lb. See also R. v. Mayle, 11 Cox, 150 : R. v. Marshall, 11 Cox, 490, 
 ace. It is not necessary that the employment should be permanent; 
 if it be only occasional, it wUl be sufficient. Where the prose- 
 cutor, having agreed to let the defendant carry out parcels when 
 he had nothing else to do, for which the prosecutor was to pay 
 him what he pleased, gave him an order to receive two pounds, 
 which he received and embezzled, he was holden to be a servant 
 within the meaning of the act. R. v. Spencer, R. dt R. 299. See 
 R. V. Smith, Id. 516. And where a drover, who was employed to 
 drive two cows to a purchaser, and receive the purchase-money, 
 embezzled it, he was holden to be a servant within the meaning 
 of the act. R. v. Hughes, 1 Mood. C. C. 370. The duties of the 
 secretary of a money club were held to be sufficiently cognate to 
 that of the receipt of money for and on the account of the club, to 
 make his employment to receive money in a particular instance an 
 employment by him as clerk or servant within the statute : and that, 
 although he had recourse to an action in his own name to get in the 
 money. R.v. Tongue, Bell,289 ; SOL. J. (M.C.)i9. But where the 
 treasurer of a charitable institution, in his individual capacity directed 
 the defendant (who was the schoolmasterof the charity school, appointed 
 by a committee of which the treasurer was a member, and whose sole 
 duty was confined to the instruction of the children) in one single 
 instance to receive a voluntary contribution, for which he was to have 
 no remuneration ; it was holden that he was not a clerk or servant, 
 or person employed for the purpose or in the capacity of a clerk or 
 servant. R. v. Nettleton, 1 Mood. C. C. 259. A member of, and secre- 
 tary to, a society, who fraudulently withheld money received from a 
 member, to be paid over to the trustees, was held to be guilty of 
 embezzlement, and to be properly described as the clerk and servant 
 of the trustees, and the money to be properly stated as their pro- 
 perty, although the money ought, in the ordinary course, to have 
 been received by the steward, and although the articles of the society 
 were not enrolled, and the society was not conducted strictly ac- 
 cording to the act of parliament. R. v. Hall, 1 Mood. C. C. 474; B. 
 
Embeedemeilt. 449 
 
 V. Milkr, 2 Mood. C. C. 249: M. v. Proud, L. & C. 97; 31 L. J. 
 (M. C.) 71. But a mere unpaid treasurer of a friendly society, not 
 appointed by the trustees of the society, is not a clerk or servant of 
 the trustees in whom the monies of the society are vested,, and cannot 
 be indicted for embezzling the monies of the society. R. v. Tyree, 
 L. JR., 1 C. a R. 177; 38 L. J. {M. C.) 58. " I believe," says Bovill, 
 C. J., (see L. R., 1 C. C. R. 181,) " there is no case to show that 
 the treasurer of a friendly society can be indicted for embezzle- 
 ment. The essence of the indictment in this case is, that the pri- 
 soner was a clerk or servant of the trustees. The trustees have all 
 monies of the society vested in them by statute, as well as by one of 
 their rules, and the prisoner must account to them; but this does not 
 make him their servant. The treasurer is an accountable officer, 
 but not a servant." And the secretaiy, who was also a member, of 
 a friendly society, established under 18 <& 19 Vict. c. 63, for which 
 no trustees had been appointed, could not, previously to 31 dc 32 
 Vict. c. 116, be convicted on an indictment for embezzling the so- 
 ciety's monies, laying the property in, and describing him as the 
 servant of, A. B. (another member of the society) and others, because 
 the " others" would have comprised himself, and so the indictment 
 would in fact have charged him with embezzling his own money as 
 his own servant. R. v. Diprose, 11 Cox, 185: i?. v. Taffs, 4 Ck>x, 169. 
 So where a committee, formed of the members of two friendly so- 
 cieties, for the purpose of conducting an excursion, appointed certain 
 persons to sell the excursion tickets, and the money reeeived from 
 their sale was to be paid over to a specified person, and was to belong 
 to the two societies. The prisoner, who was a member of the com- 
 mittee, was one of those appointed' to sell tickets without any re- 
 muneration for his services. He sold some of the tickets and frau- 
 dulently misappropriated the money received for the sale to his own 
 use. It was held previously to 31 & 32 Vict. c. 116, that he could 
 not be convicted on an indictment charging him as servant to the 
 other members of the committee with embezzling their monies. R. 
 r.Bren, L. & C. 346 ; 33 L. J. {M. C.) 59. But see now 31 <& 32 
 Vict. c. 116, s. 1, ante, p. 308, which was passed to meet such diffi- 
 culties as arose in R. v. Diprose, R. v. Taffs,. and R. v. Bren, supra. 
 A person cannot be convicted of embezzlement as clerk and servant 
 to a society which, in consequence of administering an unlawful oath 
 to its members, is an unlawful combination and confederacy within 
 the Stat. 37 G. 3, c. 123, and 57 G. 3, <;. 19: R. v. Hunt, 9, C. & P. 
 642. But a society which is of the nature of a friendly society, 
 although not enrolled or certified under the Friendly Societies Act, 
 some of the rules of which are in restraint of trade, and therefore 
 void, is not an illegal society in the sense that it is disabled from 
 prosecuting a servant for embezzling its funds. R. v. Stainer, 
 L. R., 1 a a R. 230; 39 L. J. (M. C.) 54. A prisoner, who had 
 been employed sometimes as a regular labourer, sometimes as a 
 roundsman for a day at a time, and had on several occasions been 
 sent to a banker's to receive the amount of cheques, was sent to the 
 banker's with a cheque for payment, for which he was to receive 6d, 
 he not being in the prosecutor's employment at the time: he received 
 the money for the cheque, and embezzled it; and being indicted for 
 the embezzlement, Parh, J. (after consulting Taunton, J.) held, that 
 he was not a clerk or servant within the meaning of the act of par- 
 liament. R. V. Freeman, bC.&P. 534. The person employed to 
 collect the sacrament money from the communicants is not the ser- 
 
450 Embezzlement. 
 
 vant of the minister, churchwardens, or poor. R. v. Burton, 1 Mood; 
 C. C. 237. If the clerk of several partners embezzle the private 
 money of one of them, it is an embezzlement within the act; for he 
 is a servant of each. R. v. Leach, 3 Stark. N. P. 70. So where a 
 traveller is employed by several persons, and paid wages, to receive 
 money, he is the individual servant of each. Id.: R. v. Ceerr, R. & 
 R. 198: R. V. Batty, 2 Mood. C. C. 257. So, a coachman, employed 
 by one proprietor of a coach to drive a certain part of the journey, 
 and to receive money and hand it over to him, may be charged with 
 embezzling the money of that proprietor, though the money, when 
 received, would belong to him and his partners. R. v. White, 2 
 Mood. C. C. 91; %C.& P. 742. See also R. v. Bayle^, Dean. & B. 
 121; 26 L.J. {M. C) 4. A county court bailiff, who has fraudu- 
 lently misappropriated the proceeds of levies made under county 
 court process, cannot be indicted for embezzling the monies of 
 the high bailiff his master. .B. v. Glover, L. d C. 46&; 33 L. J. 
 {M. C.) 169. A distraining broker employed exclusively by the pro- 
 secutor, and paid by a weekly salary and by a commission, is a 
 servant within the meaning of 24 <& 25 Vict. c. 96, s. 68. R. v. 
 Flanagan, 10 Cox, 561. 
 
 Where the prisoner was charged with embezzlement, but his em- 
 ployer, who made the engagement with him, was not called to prove 
 the terms thereof, but only his managing clerk, who knew them 
 through repute alone, having been informed of them by his employer, 
 it was held that there was no evidence to go to the jury that the pri- 
 soner was servant to the prosecutor. R. v. Tayhr, 10 Cox, 544, per 
 Russell Crumey, Q. C. 
 
 Prove that the defendant received the money, etc., stated in the in- 
 dictment, for or in the name or ©n the account of his master. If the 
 indictment allege that the defendant received chattels, the articles 
 described, or some part of them, must be proved, as in larceny; but 
 if the receipt of " money" be alleged, the prosecutor may give in 
 evidence the receipt of any species of coin or valuable security, or 
 a receipt of any amount, although the particular species of coin, or 
 valuable security, of which such amount was composed, shall not be 
 proved; 24 & 25 Vict. c. 96, s. 71; and in case the indictment alleges 
 the embezzlement of money, such allegation, so far as regards the 
 description of the property, will be sustained by proof that the de- 
 fendant embezzled any amount, although the particular species of 
 coin or valuable security of which such amount was composed shall 
 not be proved; or by proof that he embezzled any piece of coin ot 
 any valuable security, or any portion of the value thereof, although 
 such pieee of coin or valuable security may have been delivered to 
 him in order that some part of the value thereof should be returned 
 to the party delivering the same, or to some other person, and such 
 part has been returned accordingly. Id.: 14 & 15 Tict. c. 100, s. 18 
 (ante, p. 59). But an indictment alleging the embezzlement of 
 money is not sustained by evidence of the embezzlement of a cheque, 
 unless it be also proved that the prisoner cashed the cheque and so 
 converted it into money. R. v. Keena, L. R., 1 C. C. R. 113 ; 37 
 L. J. (M. C.) 43. A variance between the indictment and the evi- 
 dence as to the amount received is immaterial. R. v. Carson, B. & 
 R. 303. It must appear that the defendant received the money, ete., 
 for or in the name ofj or on account of, his master. Money received 
 by the defendant from his master himself, for the purpose of paying 
 it to a third person, is not within the meaning of the act. R. v. 
 
Embezslement. 451 
 
 Pech, 2 Suss. 180: R. v. Smith, R. dt R. 267 : R. v. Hawkins, 1 Den. 
 684 : R. T. Ooodenough, Dears. 210. So neither is money which is 
 constructively in the possession of the master, by the hands of any 
 other clerk or servant. R. v. Mwrray, 1 Mood. C. C. 276; b C.& P. 
 145. See R. v. Watts, 2 Dm. 15 ; 19 L. J. (M. C.) 192 : R. v. Reed, 
 Dears. 168, 257; 23 L. J. {M. C.) 25. So where the defendant's 
 duty was to place eveiy night in an iron safe, provided by his em- 
 ployers for that purpose, in an office where hg conducted the business 
 of his employers (though in his own house), the monies received by 
 him on their account and not used during the day, it was held that 
 by placing it there he determined his own exclusive possession of the 
 money, and that by afterwards taking some of it out of the safe, 
 animo furandi, he was guilty of larceny. R. v. Wright, Dears. & B. 
 431 ; 27 L. J. (M. C) 65. But the fraudulent appropriation of 
 money, which has never been in the master's own possession, and 
 which the defendant has received from a fellow-servant to give to his 
 master, is embezzlement. R. v. Masters, 1 Den. 332; 2 C. (& K. 930; 
 18 L. J. (M. C.) 2. Where the master gave a stranger some marked 
 inoney, for the purpose of purchasing goods from the master's shop- 
 man, in order to try the shopman's fidelity, which he doubted ; the 
 stranger bought the goods, and the shopman embezzled the money : 
 the judges held this to be a case within the act. R. v. Headge, 2 
 Leach, 1033 ; R. d R. 160, confirmed in R. v. Gill, Dears. 289 ; 23 
 L. J. (M. C.) 50. Where the defendant's duty was to sell his master's 
 goods, entering the sales in a book, and settling accounts with his 
 master weekly, and upon such a sale the defendant fraudulently 
 omitted to make an entry of it in the book, and appi-opriated the 
 money which he received from the buyer, this was held to be embez- 
 zlement and not larceny. R. v. Setts, Bell, 90 ; 28 L. J. (M. C.) 69. 
 A defendant, whose business it was to receive orders, to take the 
 materials from his master's shop, work them up, deliver the goods, 
 receive the price for them, and pay it over to his master, who, at the 
 end of the week, paid the defendant a proportion of the price for his 
 work, _ received an order for certain goods, took his master's 
 materials, worked them up on his premises, delivered them, and 
 received the price, but concealed the transaction, and embezzled 
 the money ; upon a conviction for embezzlement, it was doubted 
 whether this was not a larceny of the materials, rather than a case 
 within the statute : the judges held the conviction right. R. v. 
 Soggins, R. & R. 145. But where it appeared that the defendant 
 was employed as a town traveller and collector, to receive orders 
 from customers, and enter them in the books and receive the money 
 for the goods supplied thereon, but had no authority to take or direct 
 the delivery of goods fi-om his master's shop, and a customer having 
 ordered two articles of the defendant, he entered one of them only 
 in the order-book, for which an invoice was made out by the prose- 
 cutor to the customer ; but the defendant entered the price ef the 
 other at the bottom of the invoice, and, having caused both to be 
 delivered to the customer, received the price of both, and accounted 
 to the prosecutor only for the former: this was held not to be em- 
 bezzlement but larceny. R. v. Wilson, ^C.4P. 27. The prosecutor 
 had contracted with a railway company to find and provide them with 
 necessary horses and carmen for the purpose of conveying and de- 
 hvermg to the company's customers the coals of the eompamy, in 
 their own waggons ; and that he or his carmen should daily account 
 for and deliver to the company's coal manager all monies received 
 
452 Enbezzlement. 
 
 in payment for coals so delivered ; the delivery notes, as well as re- 
 ceipted invoices, for the coals, being handed to the carmen, and the 
 former taken to the prosecutor's office, the latter left with the cus- 
 tomers on payment. The defendant, one of the prosecutor's carmen, 
 delivered cosds of the company to a customer, and brought back the 
 delivery-order to the prosecutor's office to be entered - he received 
 bl. 10«. from the customer for the coals, leaving with him the re- 
 ceipted invoice, and emljezzled the money. It was held that there 
 was such a privity as to make the- defendant the agent of the com- 
 pany in receiving the money, and that it was not received for or on 
 the account of the prosecutor, his master, but for and on account of 
 the company. R^ v. Beaumont, Dears. 270 ; 23 L. J. {M. C.) 64. 
 H., the defendant's master, was the agent of a i-ailway company for 
 delivering goods and employed his own servants, of whom the de- 
 fendant was one, and used his own drays and horses, and was 
 answerable to the company for monies collected by his servants for 
 carriage. It was the defendant's duty to go out with a dray, to take 
 with him goods and a delivery-book handed to him by a clerk of the 
 company, and to receive the amount of carriage therein specified as 
 due to the company, and then to account for the sums so received 
 with the company's clerk. The sums charged as being embezzled 
 were sums received by the defendant for carriage, and entered in the 
 delivery-book, and such sums were paid to the defendant and received 
 by him as due to the company, and he gave receipts for the same in 
 the name of the company. It was held that the defendant was pro- 
 perly convicted on an indictment charging that he received the 
 money for and in the name and on the account of H. his master ; for 
 that, although he received it in the name of the company, he received 
 it for and on account of his master. B. v. Thorp, Dears< & B. 562 ; 
 27 L. J. (M. C.) 64. The defendant was the miller of a mill in a 
 county gaol, being paid a weekly salary as such out of the county 
 rates, and it was his duty to direct persons who brought grain to he 
 ground at the mill, to obtain at the porter's lodge a ticket specifying 
 the quantity of grain brought, and his business then was to receive 
 the grain with the ticket, to grind it, to receive the money for the 
 grinding, and to account for it to the governor of the gaol, who, in 
 his turn accounted to the county treasurer. The defendant received 
 and ground grain without a ticket, and, without directing the persons 
 who brought it to obtain one, received the money for grinding it, 
 and did not account for it, but applied it to his own use. It was 
 held that upon these facts he could not be convicted of embezzle- 
 ment, as the conclusion to be drawn from them was that he had 
 made an improper use of the mill by grinding the com for his own 
 benefit, and so he did not receive the money for or on behalf of his 
 masters. R. v. Earns, Dears. 344; 23 L. J. (M. C.) 110. As it 
 must have appeared, in order to satisfy the statute 7 <6 8 ff. 4, c. 29, 
 s. 47, that the money, etc., embezzled was never, even constructively, 
 in the possession of the master, siuce, if it was, the oifence would 
 amount to larceny at common law, nice and difficult questions fi-e- 
 quently arose on this point. See R. v. Murray,, R. v. Waits, ante, 
 p. 451, and other cases. But this distinction is rendered practically 
 immaterial by the enactments' of the 24 & 25 Vict. e. %; s. 72 (ante, 
 p. 443), by which, upon an indictment for embezzlement, the de- 
 fendant is not entitled to be acquitted if the offence turn out ta be 
 larceny, but may be convicted and punished as for larceny and viee 
 versa. It is to be observed, however, that where the prisoner is 
 
Embezzlement. 453 
 
 indicted for larceny a general verdict of guilty cannot be sustained 
 upon evidence of embezzlement only. R. v. Qorhutt, Dears. & B. 
 166- 26 L J. (M. C.) 47. If the defendant's receipt for the money 
 were offered in evidence, it could not formerly be received unless 
 stamped {if it were of an amount to require a stamp), in the same 
 manuer as upon the trial of a civil action. R. v. Hall, 3 Starh. 67. 
 But see now 17 & 18 Vict.-c. 83, s. 27 (fmte, p. 268), which does away 
 with stamp objections in criminal cases. 
 
 Upon an indictment for this offence mnder the repealed enactment 
 of 7 <fc 8 fi'. 4, c. 29, s. 47, it must have appeared in evidence that the 
 defendant received the money, etc., by virtue of his employment, the 
 words of that section being " shall, hy virtue of such employment, re- 
 ceive or take into his possession any chattel, etc., for or in the name 
 or on the account of his master." If, therefore, on an indictment 
 under that section, it did not appear that the servant who had em- 
 bezzled the money or .chattel was authorized to receive it by virtue 
 of his employment the case did not come within the section. R. v. 
 Thorlaj, 1 Mood. C. C. 343: R. v. Hawtin, 1 C. & P. 281: R. v. 
 Mellish, R. & R. 80: R. v. SnowUy, 4. C. & P. 390. The 24 & 25 
 Vict. c. 96, s. 68, which has replaced the 7 c6 8 G. 4, c. 29, s. 47, does 
 not contain the words, " by virtue of such employment," and there- 
 fore if a man pay a servant money for his master and the servant 
 embezzles it, the case will be within the present enactment, although 
 it was neither the duty of the servant to receive it, nor had he autho- 
 rity to do so. The cases above mentioned are therefore no authori- 
 ties OB the 24 & 25 Vict. c. 96, s. 68. 
 
 And lastly, prove that the defendant embezzled the money, etc., so 
 received, or some part of it. The usual presumptive evidence of this 
 fact is, that the defendamt never acconmted with his master for the 
 money, etc., so received by him, or that he denied his having received 
 it. Where the defendant charged himself in his master's book with 
 money received by him, it was held that an embezzlement was not 
 proved merely by his not paying it over to the master. R. v. Hodg- 
 son, 3 C. <& P. 422. On the other hand, the defendant is not exempted 
 from the operation of the statute merely by entering the receipt of the 
 money correctly in his master's book. R. v. Lister, Dears. & B. 119; 
 26 L. J. (if. C.) 26: R. v. Guelder, Bell, 284; 30 L. J. (M. C.) 34. 
 If, instead of denying the appropriation of the money, the party in 
 rendering his account admits it, alleging a right in himself, however 
 unfounded, or setting up an excuse, however frivolous, he ought not 
 to be convicted of embezzlement ; R. v. Norman, C. & Ma/r. 501; 
 even though he afterwards abscond, and do not pay over the money. 
 R. V. Greed, 1 C. <& K. 63. But wlxere it is the servant's duty to 
 account for and pay over the monies received by him at stated times, 
 his not doing so wilfully is an embezzlement, although he do not 
 actually deny the receipt of them. R. v. Jackson, 1 C. & K. 384. 
 The case of R. v. Jones, 7 C. <& P. 833, which seems to the contrary, 
 must fee taken to be overruled. And even where no precise time 
 can be fixed at which it was his duty to pay them over, his not 
 accounting for them, if found by the jury to have been done fraudu- 
 lently, is equally an embezzlement. R. v. Welch, 1 Den. 199 ; 2 C. 
 & K. 296. &ee R. v. Squire, ante, p. 446: R. v. Wortley, 2 Den. 
 333; 21 L. J. {M. C.) 44, ante, p. 447. The defendant, who was 
 employed as a travelling salesman by a tradesman living at Not- 
 tingham, received two sums for his master in the county of Derby, 
 appropriated them to his own use, and neglected to return and 
 
454 Embezzlement. 
 
 account to his master for the money, as it was his duty to do. Two 
 months afterwards he was met by his master in Nottingham ; and, 
 being asked by him respecting the two sums of money, said he was 
 very sorry for what he had done, that he had spent the money. It 
 was held that there was evidence to go to the jury of an embezzlement 
 in Nottingham, and therefore that the defendant was rightly tried 
 there. R. v. Murdoch, 2 Dm. 298; 21 L. J. (M. C.) 22. Where 
 the defendant received payment of a debt from one of his master's 
 customers in Bank of England notes, but accounted with his master 
 for 61. less than he received, and afterwards delivered some Bank of 
 England notes to his master upon another account : it being argued 
 for the defendant that these must be presumed to be the same bank- 
 notes which were received from the customer, and being actually 
 delivered to the master could not be said to be embezzled, — Bayky, 
 J., ruled, that these notes, to the amount of 61., must be deemed to 
 have been embezzled within the meaning of the act, the moment the 
 defendant accounted for 61. less than he received, and that his after- 
 wards paying these identical notes to his master in another account 
 made no difference : which decision was afterwards confirmed by 
 the judges. S. v. Sail, 3 Stark. 67; R. & R. 463. The difficulty in 
 that case, which arose from the necessity of proving the embezzle- 
 ment of some specific note or coin, has been removed by modem 
 legislation. If the embezzlement be alleged to be of money, without 
 specifying any particular coin or valuable security, such allegation, 
 so far as regards the description of the property, will be sustained, 
 if the offender shall be proved to have embezzled any amount, 
 although the particular species of coin or valuable security of which 
 such amount was composed shall not be proved, or if he shall be 
 proved to have embezzled any piece of coin or valuable secui'ity, 
 or any portion of the value thereof, although such piece of coin or 
 valuable security may have been delivered to him, in order that 
 some part of the value thereof should be returned to the party deliver- 
 ing the same, or to some other person, and such part shall have been 
 returned accordingly, 24 & 25 Vict. c. 96, s. 71 (ante, p. 442). In 
 R. V. Grove, 1 Mood. C. C. 447; 1 C. <& P. 635, a majority of the 
 judges (eight against seven) are reported to have held that, since 
 7 (fc 8 e. 4, c. 29, s. 48 (of which 24 & 25 Vict. c. 96, s. 71, is sub- 
 stantially a re-enactment), an indictment for embezzlement might be 
 supported by proof of a general deficiency of monies that ought to 
 be forthcoming, without showing any particular sum received and 
 not accounted for. See also R. v. Lambert, 2 Cox, 309, per Erie, J., 
 ace.: R. v. Moah, Dears. 626; 25 L. J. (M. C.) 66. But in R. v. 
 Lloyd Jones, 9 C. & P. 288, where, upon an indictment for embezzle- 
 ment, it was opened that the prisoner had been shopman to the 
 prosecutrix, and that it would be proved that there was a deficiency 
 in the prisoner's accounts, but that there was no proof of the em- 
 bezzlement of any particular sum, Alderson, B., said, "Whatever 
 difference of opinion there might be in R. v. Chrove (ubi supra), that 
 proceeded more upon the particular facts of that case than upon the 
 law. It is not sufficient to prove at the trial a general deficiency 
 in account. Some specific sum must be proved to be embezzled, in 
 like manner as in larceny some particular article must be proved to 
 have been stolen." See also R. v. Cliapman, 1 C. <b K. 119, per 
 Williams, 3. : R. v. Wolstenholme, 11 Cox, 313, per Brett, J., ace. 
 Where an indictment for embezzlement charged three offences, and 
 it appeared that the prisoner had made correct entries of a number 
 
Embezzlement. 455 
 
 of payments made by him in one week, but had cast up the whole 
 2Z. less than the ooirect amount ; and in another week there was a 
 precisely similar error of the same amount, and the same in a third 
 week, and these were the cases charged in the indictment ; it was 
 held that evidence of a series of similar errors, both before and after 
 those which formed the subject of the indictment, was admissible in 
 order to anticipate the defence that the three cases contained in the 
 indictment were merely accidental errors. R. v. Richardson, 1 F, & 
 F. 343; 8 Cox, 448. See. aim R. v. Prowi, L. & C. 97; 31 L. J. 
 (Jf. G) 71, ante, p. 209. 
 
 Where the indictment contains only one count, charging the re- 
 ceipt of a gross sum on a particular day, and it appears in evidence 
 that the money was received in different sums on different days, the 
 prosecutor will be put to his election, and must confine himself to 
 one sum and one day. R. v. Williams, 6 C.& P. 626. 
 
 It seems that it is not necessary to allege or prove the embezzling 
 to have taken place while the prisoner continued clerk or servant to 
 the prosecutor. jB. v. Lovell, 2M.<& Mob. 236. 
 
 EMBEZZLEMENT BY PERSONS EMPLOYED IN THE PITBLIC SERVICE, 
 OK BY POLICE CONSTABLES. 
 
 24 <& 25 Vict. c. 96, s. 70 — Embezzlement by Persons in the Queen's 
 Service or by the Police — Vernie — Form oflndictmerU.^ — Whosoever, 
 being employed in the public service of her majesty, or being a con- 
 stable or lother person employed in the police of amy county, city, 
 borough, district or place whatsoever, and intrusted by virtue of 
 such employment with the receipt, custody, management or control 
 of any chattel, money or valuable security, shall embezzle any 
 chattel, moBey or valuable security which shall be intrusted to or 
 received or taken into possession by him by virtue of his employ- 
 ment, or any part thereof, or in any manner fraudulently apply or 
 dispose of the same or any part thereof to his own use or benefit, 
 ■or for any purpose whatsoever except for the public service, shall be 
 deemed to have feleniously stolen the same from her majesty, and 
 being convicted thereof shall be liable, at the discretion of the court, 
 to be kept in penal servitude for any term not exceeding fourteen 
 years and not less than three years [nmo five years, 27 d: 28 Vict, 
 c. 47, s. 2, ante, p. 173], or to be imprisoned for any term not ex- 
 ceeding two years, with or without hard labour ; and every offender 
 against_ this or the last preceding section [ante, p. 348] may be 
 dealt with, indicted, tried and punished either in the county or place 
 in which he shall be apprehended or be in custody, or in which he 
 shall have committed the offence; and in every case of larceny [amte, 
 p. 348], embezzlement, or fraudulent application or disposition of 
 any chattel, money or valuable security in this and the last pre- 
 ceding section [ante, p. 348] mentioned, it shall be lawful in the 
 warrant of commitment by the justice of the peace before whom the 
 offender shall be charged, and in the indictment to be preferred 
 against such offender, to lay the property of any such chattel, money 
 or valuable security in her majesty. 
 
 Sect. 71 — Distinct acts of embezzlement, SfC, mai/, under certain 
 fiircumstances, be charged in same indictment].— Ante, p. 442. 
 
456 Emhezzlement. 
 
 Sect. 11 — Person indicted for emhezzlement, SfC, not to be ac- 
 quitted if the offence turn out to be larceny, and vice versa], — Ante, 
 p. 443. 
 
 BY BANKERS, MERCHANTS, BROKERS, ATTORNEYS, AGENTS OE 
 FACTORS. 
 
 Statute. 
 
 24 16 25 Vict, c 96, «. 75.] — Whosoever, having been intrusted, 
 either solely, or jointly with any other person, as a banker, merchaDt, 
 broker, attorney or other agent, with any money or security for the 
 payment of money, with any direction in writing to apply, pay or 
 deliver such money or security or any part thereof respectively, or the 
 proceeds or any part of the proceeds of such security, for any pur- 
 pose, or to any person specified in such direction, shall, in violation 
 of good faith' and contrary to the terms of such direction, in anywise 
 convert to his own use or benefit, or the use or benefit of any person 
 other than the person by whom he shall have been so intrusted, such 
 money, security or proceeds, or any part thereof respectively; and 
 whosoever, having oeen intrusted, either solely, or jointly with any 
 other person, as a banker, merchant, broker, attorney, or other agent, 
 with any chattel or valuable security, or any power of attorney for 
 the sale or transfer of any share or interest in any public stock or 
 fund, whether of the United Kingdom, or any part thereof, or of any 
 foreign state, or in any stock or fund of any body corporate, com- 
 pany, or society, for safe custody or for any special purpose, without 
 any authority to sell, negotiate, transfer, or pledge, shall in violation 
 of good faith, and contrary to the object or purpose for which such 
 chattel, security, or power of attorney shall have been intrusted to 
 him, sell, negotiate, transfer, pledge, or in any manner convert to his 
 own use or benefit, or the use or benefit of any person other than the 
 person by whom he shall have been so intrusted, such chattel or 
 security, or the proceeds of the same, or any part thereof, or the 
 share or interest in the stock or fund to which such power of attorney 
 shall relate, or any part thereof, shall be guilty of a misdemeanor, 
 and being convicted thereof shall be liable, at the discretion of the 
 court, to be kept in penal servitude for any term not exceeding seven 
 years and not less than three years [now fine years, 27 & 28 Vict. 
 c. 47, s. 2, ante, p. 173], or to be imprisoned for any term not 
 exceeding two years, with or without hard labom-, and with or 
 without solitary confinement ; but nothing in this section contained 
 relating to agents shall afiect any trustee in or under any instru- 
 ment whatsoever, or any mortgagee of any property, real or per- 
 sonal, in respect of any act done by such trustee or mortgagee 
 in relation to the property comprised in or afiected by any such 
 trust or mortgage ; nor shall restrain any banker, merchant, broker, 
 attorney, or other agent from receiving any money which shall 
 be or become actually due and payable upon or by virtue of any 
 valuable security, according to the tenor atid eflect thereof, in such 
 manner as he might have done if this act had not been passed ; nor 
 from selling, transferring, or otherwise disposing of any securities 
 or effects in his possession upon which he shall have any lien, claim, 
 
Emhezdemmt. 457 
 
 or demand entitling him by law so to do, unless such sale, transfer, 
 or other disposal shall extend to a greater number or part of such 
 securities or effects than shall be requisite for satisfying such lien, 
 claim, or demand. 
 
 Sect. 76 — Bankers, &c. fravdulently selling Property intrusted to 
 their Care.'] — Whosoever, being a banker, merchant, broker, attorney, 
 or agent, and being intrusted, either solely, or jointly with any other 
 person, with the property of any other person for safe custody, shall, 
 with intent to defraud, sell, negotiate, transfer, pledge, or in any 
 manner convert or appropriate the same or any part thereof to or for 
 his own use or benefit, or the use or benefit of any person other tbau 
 the person by whom he was so intrusted, shall be guilty of a misde- 
 meanor, and being convicted thereof shall be liable, at the discretion 
 of the court, to any of the punishments which the court may award 
 as hereinbefore last mentioned. 
 
 Sect. 77 — Persons under Powers af Attorney fraudulently selling 
 Property.] — Whosoever, being intrusted, either solely, or jointly with 
 any other person, with any power of attorney for the sale or transfer 
 of any property, shall fraudulently sell or transfer or otherwise con- 
 vert the same or any part thereof to his own use or benefit, or the use 
 or benefit of any person otlier than the person by whom he was so 
 intrusted, shall be guilty of a misdemeanor, and being convicted 
 thereof shall be liable, at the- discretion of the court, to any of the 
 punishments which the court may award as herejnbefoi-e last men- 
 tioned. 
 
 Sect. 78 — Factors unlawfully obtaining Advamces on Property of their 
 Prirecipafe.]— Whosoever, being a factor or agent intrusted, either 
 solely, or jointly with any other person, for the purpose of sale or 
 otherwise, with the possession of any goods, or of any document 
 of title to goods, shall, contrary to or without the authority of his 
 principal in that behalf, for his own use or benefit, or the use or 
 benefit of any person other than the person by whom he was so in- 
 trusted, and in violation of good faith, make any consignment, 
 deposit, transfer, or delivery of any goods or document of title so in- 
 trusted to him as in this section before mentioned, as and by way of 
 a pledge, lien, or security for any money or valuable security borrowed 
 or received by such factor or agent at or before the time of making 
 such consignment, deposit, transfer, or delivery, or intended to be 
 thereafter borrowed or received, or shall, contrary to or without 
 such authority, for his own use or benefit, or the use or benefit of 
 any person other than the person by whom he was so intrusted, and 
 m violation of good faith, accept any advance of any money or valu- 
 able security on the faith of any contract or agreement to consign, 
 deposit, transfer, or deliver any such goods or document of title, 
 shall be guilty of a misdemeanor, and being convicted thereof shall 
 be liable, at the discretion of the court, to any of the punishments 
 which the court may award as hereinbefore last mentioned ; and 
 every clerk or other person who shall knowingly and wilfully act and 
 assist in making any such consignment, deposit, transfer, or deli- 
 very, or in accepting or procuring such advance as aforesaid, shall 
 be guilty of a misdemeanor, and being convicted thereof shall be 
 liable, at the discretion of the court, to any of the same punish- 
 ments: Provided, that no such factor or agent shall be liable to any 
 
458 Embezzlement. 
 
 prosecution for consigning, depositing, transferring, or deliveiing any 
 euch goods or documents of title, in case the same shall not be made 
 a security for or subject to the payment of any greater sum of money 
 than the amount which at the time of such consignment, deposit, 
 transfer, or delivery was justly due and owing to such agent from 
 his principal, together with the amount of any bill of exchange drawn 
 by or on account of such principal, and accepted by such factor or 
 agent. 
 
 Sect. 79 — Definition of Terms.]— Aaj factor or agent intrusted as 
 aforesaid, and possessed of any such document of title, whether de- 
 rived immediately from the owner of such goods or obtained by 
 reason of such factor or agent having been intrusted with the posses- 
 sion of the goods or of any other document of title thereto, shall be 
 deemed to have been intrusted with the possession of the goods 
 represented by such document of title ; and every contract pledging 
 or giving a lien upon such document of title as aforesaid shall be 
 deemed to be a pledge of and lien upon the goods to which the same 
 relates; and such factor or agent shall be deemed to be possessed 
 of such goods or document, whether the same shall be in his actual 
 custody, or shall be held by any other person subject to his control, 
 or for him or on his behalf; and where any loan or advance shall be 
 bona fide made to any factor or agent intrusted with and in posses- 
 sion of any such goods or document of title, on the faith of any con- 
 tract or agreement in writing to consign, deposit, transfer or deliver 
 such goods or document of title, and such goods or document of title 
 shall actually be received by the person making such loan or ad- 
 vance, without notice that such factor or agent was not authorized 
 to make such pledge or security, every such loan or advance shall 
 be deemed to be a loan or advance on the security of such goods or 
 document of title within the meaning of the last preceding section, 
 though such goods or document of title shall not actually be received 
 by the person making such loan or advance till the period subse- 
 quent thereto: and any contract or agreement, whether made direct 
 with such factor or agent, or with any clerk or other person on his 
 behalf, shall be deemed a contract or agreement with such factor or 
 agent; and any payment made, whether by money or bill of ex- 
 change or other negotiable security, shall be deemed to be an ad- 
 vance within the meaning of the last preceding section ; and a factor 
 or agent in possession as aforesaid of such goods or document shall 
 be taken for the purposes of the last preceding section to have been 
 intrusted therewith by the owner thereof, unless the contrary be 
 shown in evidence. 
 
 Sect. 86 — No Person exempt from answering Questions in any Court.] 
 — Nothing in any of the last ten preceding sections of this act con- 
 tained shall enable or entitle any person to refuse to make a full and 
 complete discovery by answer to any bill in equity, or to answer 
 any question or interrogatory in any civil proceeding in any court, 
 or upon the hearing of any matter in bankruptcy or insolvency; and 
 no person shall be liable to be convicted of any of the misdemeanors 
 in any of the said sections mentioned by any evidence whatever in 
 respect of any act done by him, if he shall at any time previously to 
 his being charged with such offence have first disclosed such act on 
 oath, in consequence of any compulsory process of any court of law 
 or equity, in any action, suit, or proceeding which shall have been 
 
Ekibeszlemmt. 459 
 
 bond fide instituted by any party aggrieved, or if he shall have first 
 disclosed the same in any compulsory examination or deposition 
 hefore any court upon the hearing of any matter in banki-uptcy or 
 insolvency. 
 
 Sect. S6—Not to deprive Parly grieved of Remedy— Conviction not 
 to be Evidence in Civil Suife.]— Nothing in any of the last eleven 
 preceding sections of this act contained, nor any proceeding, convic- 
 tion, or judgment to be had or taken thereon against any person 
 under any of the said sections, shall prevent, lessen or impeach any 
 remedy at law or in equity which any party aggrieved by any offence 
 against any of the said sections might have had if this act had not 
 been passed; but no conviction of any such offender shall be received 
 in evidence in any action at law or suit in equity against him : and 
 nothing in the said sections contained shall affect or prejudice any 
 agreement entered into or security given by any trustee, having for 
 its object the restoration or repayment of any trust property misap- 
 propriated. 
 
 Sect. 81— Offences not triable at Qaarter Sessions.'] — No misde- 
 meanor against, any of the last twelve preceding sections of this act 
 shall be prosecuted or tried at any court of genei-al or quarter ses- 
 sions of the peace. 
 
 Sect. 1 — Document of Title to Goods, what.'] — Ante, p. 370. 
 
 Indictment against a BanJcer, etc., for the fraudulent Conwreion of 
 Money entrusted to him for a specific Purpose. 
 
 Middlesex, to wit: The jurors for our lady the Queen, upon their 
 oath present, that on the first day of June, in the year of our Lord 
 
 , J. N. did entrust J. S. as a banker (" banker, merchant, broker, 
 
 attorney, or other agent") with a certain large sum of money (" money 
 or security for the payment of money"), to wit, the sum of one hundred 
 pounds, with a direction to the said J. S. in writing to pay the said 
 sum of money (" such money or security or any part thereof, or the 
 proceeds or any part of the 'proceeds of such security"') to a certain 
 person specified in the said direction (''/(»• any purpose or to any 
 person specified in such direction"); and that the said J. S., banker as 
 aforesaid, afterwards, to wit, on the day and year aforesaid, in viola- 
 tion of good faith, and contrary to the terms of the said direction, 
 unlawfully did convert to his own use and benefit (" ovm use or 
 benefit, or the use or benefit of any person other than the person h/ 
 whom he shall have been so entrusted") the said sum of money (" such 
 money, security, or proceeds, or any part thereof respectively'"), so to 
 him entrusted as aforesaid; against the form [as ante, p. 347]. In 
 the case of a security for money, the indictment must, under the re- 
 pealed enactment of! 4-8 G. 4, c. 29, s. 49, have alleged a written 
 direction as to the application of the proceeds. R. v. 'Golde, 2 M. * 
 Sob. 425. Add a count stating tlie purpose, to which the money was 
 to he applied, or the person to whom it was to be paid. 
 
 Misdemeanor: penal servitude fornot more than seven nor less than 
 five [27 6f 28 'Vict. c. 47, s. 2, ante, p. 173] year.', or imprisonment 
 not exceeding two years, with or without hard labour, and ivith or 
 without solitary confinement {such confinement not exceeding one 
 
 x2 
 
460 Embezzlement. 
 
 mmilh at any one time, nor three months in any one year, 24 !^ 95 
 Vict. c. 96, s. 119, ante, p. 3oS) —-24 ^ -26 Viet. c. 96, ». 75. .4» /o 
 fining the offender and requiring him to enter into recognizances and 
 find sureties for keeping the peace and being of' good behaviour, Id. 
 s. \\7, ante. p. SOT. 
 
 This offence is not triable at quarter sessions. Id. s. H7. 
 
 Evidence. 
 
 Prove that the defendant was a banker, agent, etc, as stated in the 
 indictment — that the money, etc., was entrusted to him as such— 
 that directions in writing were given for the application of the 
 money, etc : this must be proved by the production of the directions, 
 or by secondary evidence, after notice to produce the original (see 
 ante, p. 220) : and lastly, prove that the defendant, instead of apply- 
 ing the money, etc., as directed, converted it to his own use and 
 benefit. If the particular purpose be stated in the indictment, the 
 evidence must correspond with the allegation. An allegation of a 
 specific direction to invest the proceeds of valuable securities in the 
 funds, is not supported by evidence of a direction to invest in the 
 fiinds in the event of any unexpected accident occurring. B. v. 
 White, ^ C. & P. 46. This statute does not afiect trustees or mort- 
 gagees, in respect of any act done by them in relation to the pro- 
 perty comprised in or affected by the trust or mortgage : nor does it 
 restrain bankers, etc. from receiving money due and payable upon 
 or by virtue of any valuable security : see Thompson v. Giles, iB.d; 
 C. ^11 : or from selling, transferring, or disposing of securities or 
 efiects in their possession, upon which they have a lien, claim or 
 demand, unless the sale, etc. be to a greater extent than is necessary 
 to satisfy such lien, etc. 24 & 25 Vict. c. 96, s. 76. No banker, 
 etc. shall be convicted by any evidence in respect of any act done 
 by him, i^ at any time previously to his being charged with the 
 offence, he shall have first disclosed such act on oath, in consequence 
 of any compulsory process of any court of law or equity, in any 
 action, suit or proceeding which shall have been bond fide instituted 
 by any party aggrieved, or if he shall have first disclosed the same 
 in any compulsory examination or deposition before any court upon 
 the hearing of any matter in bankruptcy or insolvency. Id. s. 85 ; 
 see B. V- Sheem, ante, p. 357- 
 
 Indictment against a Banher, etc., for misappropriating Goods, etc, 
 
 entrusted to him for safe keeping, etc. 
 Commencement as in the last precedentl — J. N. did entrust to J. S. 
 as a banker, for safe custody {"for safe custody, or for any special 
 purpose"), a promissory note ("any chattel or valuable security, or 
 any power of attorney for the sale or transfer of any share or interest 
 in any piblic stock or fund, whether of the United Kingdom, or any 
 part thereof, or of any foreign state, or in any stock or fund of am/ 
 body corporate, company, or society "), of one J. P. for the payment of 
 twenty pounds, without any authority to him the said J. S. to sell, 
 negotiate, transfer, or pledge the said promissory note, and that the 
 said J. S., banker as aforesaid, on the day and year aforesaid, in 
 violation of good faith, and contrary to the object and purpose for 
 which such promissory note was entrusted to him the said J. S. as 
 
Embezzlement. 461 
 
 aforesaid, unlawfully did negotiate and convert to his own use and 
 benefit (" sell, negotiate, transfer, pledge, or in any manner convert to 
 his own use or benefit, etc.") the said promissory note (" such chattel 
 or security, or the proceeds of the same, or any part thereof, or the 
 share or interest in the stock orfmd to which such power of attorney 
 shall relate or any part thereof") ; against the form [as ante, p. 347]. 
 Misdemeanor: 24 (& 25 Vict. c. 96, s. 75, punishable as in the last 
 
 This offence is not triabU at quarter sessions. Id. s. 87 {ante, 
 p. 459). 
 
 Eoidence. 
 
 Prove that the defendant was a banker or agent, etc., as stated in 
 the indictment — that the note or other security described in the 
 indictment was entrusted to him for safe custody, or for the special 
 purpose stated — that no authority was given to him to negotiate the 
 note— and, lastly, that he negotiated the note, and converted it to his 
 own use and benefit, as stated in the indictment. See the provisions 
 of the statute 24 & 25 Vict. c. 96, ss. 75, 85, in the last case, which 
 apply to an indictment for this offence also. 
 
 Indictment against a Factor for wnlawfully pledging Goods of the 
 Principal. 
 
 Commencement as ante, p. 459] — J. N. did entrust to J. S., the 
 said J. S. then being a factor and agent of him the said J. N., ten 
 bales of cotton (" entrusted with the possession of goods, or of any 
 document of title to goods") ; and that the said J. S., factor and agent 
 as aforesaid, on the day and year aforesaid, contrary to and without 
 the authority of the said J. N., for his own use and benefit, and in 
 violation of good faith, unlawfully did make a deposit of the said ten 
 bales of cotton with one J. P., as and by way of a pledge, lien and 
 security for a certain sum of money, to wit, the sum of fifty pounds, 
 then advanced by the said J. P. to him the said J. S. ; against the 
 form [as ante, p. 347]. 
 
 Misdemeanor: penal servitude for not more than seven nor less 
 ihanfive [27 Sj- 28 Vict, c 47, s. 2, ante, p. 173] years, or imprison- 
 ment, with or without hard labour, and with or without solitary con- 
 finement (such confinement not exceeding one month at any one time, 
 nor three months in any one year, 2-t Sr 25 Vict. c. 96, s. 1 19, ante, 
 p. 308) not exceeding two years.— li '^ 25 Vict. c. 96, s. 78. As to 
 fining the offender and requiring him to enter into recoqnizances and 
 find sureties for keeping the peace and being of good behaviour, 
 Id.s. 117, an/e,p. 307. 
 
 This offence is not triable at quarter sessions. Id. s. 87 (ante, 
 p.im). 
 
 Prove that the goods, etc. described in the indictment were en- 
 trusted by J. N. to the defendant as his agent : that the defendant 
 deposited the goods with J. P. as a security for an advance of money, 
 etc. ; and, lastly, circumstances must be shown from which the jury 
 may mfer that the defendant pledged the goods in violation of good 
 faith, and contrary to and without the authority of the prosecutor. 
 A factor who has a lien upon goods may pledge them to the extent 
 
462 Embezzlement. 
 
 of his Ken. 24 <& 25 Viet. e. 96, s. 75. And if he have, previously 
 to the charge, first disclosed the act on oath under compulsory 
 process of any court of law or equity, in any action, etc., bona fide 
 instituted by any party grieved, or in any compulsory examination 
 or deposition in bankruptcy or insolvency, he cannot be convioted 
 by any evidence whatever. Id. s. 85. C&e ante, pp. 356, 357.) The 
 conviction will not be evidence against the defendant in any action 
 at law or suit in equity against him. Id. s. 86. As to what is an en- 
 trusting within the statute, and what are to be considered as docu- 
 ments of title to goods, see 24 d; 25 Vict. c. 96, s. 79 {ante, p. 458), 
 and sect. 1 (ante, p. 370). A person who has been entrusted with 
 goods, or the documents of title thereto, as agent, is not, after his 
 authority as agent has been revoked, " an agent entrusted" within 
 the meaning of the Factors Act, 5 t& 6 Vict. c. 39, o. 1, so as to pro- 
 tect a pledge by him to an innocent pledgee. Fuentes v Montis, L. R., 
 4 C. P. 93 {Exch. Cham.) ; 38 L. J. (C.F.) 95 (Exch. Cham.). It 
 would seem, therefore, that such a person whose authority has been 
 so revoked is not " a factor or agent entrusted," within the meaning 
 of 24 cfc 25 Vict. c. 96, s. 78. 
 
 BY TRUSTEES. 
 
 Statute. 
 
 24 (& 25 Vict c. 96, s. 80.] — Whosoever, being a trustee of any 
 property for the use or benefit, either wholly or partially, of some 
 other person, or for any public or charitable purpose, shall, with 
 intent to defraud, convert or appropriate the same or any part thereof 
 to or for his own use or benefit, or the use or benefit of any person 
 other than such person as aforesaid, or for any purpose other than 
 such public or charitable purpose as aforesaid, or otherwise dispose 
 of or destroy such property or any part thereof, shall be guilty of a 
 misdemeanor, and being convicted thereof shall be liable, at the dis- 
 cretion of the court, to any of the punishments which the court may 
 award as hereinbefore last mentioned : Provided, that no proceeding 
 or prosecution for any offence included in this section shall be com- 
 menced without the sanction of her Majesty's attorney- general, or, 
 in case that office be vacant, of her Majesty's solicitor-general: Pro- 
 vided also, that where any civil proceeding shall have been taken 
 against any person to whom the provisions of this section may apply, 
 no person who shall have taken such civil proceeding shall com- 
 mence any prosecution under this section without the sanction of the 
 court or judge before whom such civil proceeding shall have been 
 had or shall be pending. 
 
 Sect. 1 — Trustee, what.] — The term "trustee," shall mean a trustee 
 on some express trust created by some deed, will or instrument in 
 writing, and shall include the heir, or personal representative, of any 
 such trustee, and any other person upon or to whom the duty of such 
 trust shall have devolved or come, and also an executor and admi- 
 nistrator, and an official manager, assignee, liquidator, or other like 
 officer acting under any present or fiiture act relating to joist stock 
 companies, bankruptcy or insolvency. 
 
 Id. — Property, what.^ — Ante, p. 303. 
 
Emheszkment. 463 
 
 Indictment. 
 
 Middlesex, to wit:— The jurors for our lady the Queen upon their 
 oath present, that before and at the time of the committing of tlie 
 offences hereinafter mentioned, to wit, on the first day of June, in the 
 
 year of our Lord , J. S. was a trustee of certain property, to wit, 
 
 five thousand pounds three per centum consolidated bank annuities, 
 wholly lor partially] for the benefit of J. N. [or for a certain public 
 (or charitable) pui-pose, that is to say (stating the pv/rpose)} ; and 
 that he the said J. S., so being such trustee as aforesaid, on the day 
 and year aforesaid, nnlawfliUy and wilfully did convert and appro- 
 priate the said property to his own use [" conmrt or appropriate the 
 same or any part thereof to or for his own use or benefit, or the use 
 or benefit of any person other than such person as aforesaid, or for any 
 purpose other than such public or charitable purpose as aforesaid, or 
 otherwise dispose of or destroy such property or any part thereof'^ with 
 intent thereby then to defraud ; against the form [as ante, p. 347] . 
 Add counts alleging that the defendant disposed of (showing the mode 
 of disposition) or destroyed the propeirty, if necessary. 
 
 Misdemeanor: penal servitude fw not more than seven and not less 
 than five [27 <& 28 Vict. c. 47, s. 2, ante, p. 173] years, or imprison- 
 ment, with or without hard labour, and with or without solitary con- 
 finement (such confinement not exceeding one month at any one time, 
 nor three months in any one year, 24 & 25 Vict. c. 96, s. 119, ante, p. 
 308), m)t exceeding two years. — 24 <& 25 Vict. c. 96, ss. 75, 80. See 
 ss. 85, 86, ante, pp. 458, 469. As to fining the offender and requiring 
 him to enter into recognizances and' find sureties for keeping the peace _ 
 amd being of good behaviour. Id. s. 117, ante, p. 307. 
 
 This offence is not triable at guarter sessions. Id. s. 87 (ante, n. 
 459). ' 
 
 The prosecution must be comnmnced with the sanction of a judge or 
 of the attorney -general. Id. s. 90. 
 
 Evidence. 
 
 Prove that the defendant was a trustee, as stated in the indictment, 
 by_ producing and proving the deed, will, or other instrument in 
 writing whereby the trust (which must be an express and not an 
 implied trust) was created, and also, if the defendant be the heir or 
 personal representative of the origmal trustee, by proving his heir- 
 ship, or the will or letters of administration, as the case may be, of 
 the original trustee (see ante, p. 246). A trustee of a savings bank 
 IS not a trustee of property " for a public or charitable purpose" 
 withm s. 80, supra. He is, however, a trustee for the benefit " of 
 some other persons" within that section. B. v. Fletcher, L. & C. 
 180 ; 31 L. J. (M. C.) 206. The rules of a savings bank are an 
 
 mstrument m writing" within s. 1, supra ; ib. If the defendant is 
 charged as an assignee in bankruptcy, the proceedings must be pro- 
 duced and proved (see ante, p. 247), in order to show his character as 
 assignee : if as liquidator under the Companies Act, 1862 (25 <& 26 
 Vict. e. 89), It must be shown that the company was one that had 
 been duly registered by producing the certificate of registration ; and 
 It the appointment as liquidator was by the court of Chancery, the 
 order of the court appointing the defendant must be proved ; if by 
 the company m general meeting, the appointment by such general 
 meeting mi^st be proved. Then prove that the defendant appro- 
 
464 JEmbezzlemmt. 
 
 priated the property of wliich he was such trustee, or some part 
 thereof, to his own use, or disposed of or destroyed it, or some part 
 of it, as the case may be, and that he did so with intent to defraud, 
 which intent must in general be implied from the circumstances of 
 the case (see ante, p. 208). 
 
 The " property" to which the act applies is declared by the 1st 
 section of the 24 <& 25 Vict. u. 96, to include " every description of 
 real and personal property, money, debts and legacies, and all deeds 
 and instruments relating to or evidencing the title or right to any 
 property, or giving a right to recover or receive any money or 
 goods ;" and shall also include not only such property as shall have 
 been originally in the possession or under the control of any party, 
 but also any property into or for which the same may have been 
 converted or exchanged, and anything acquired by such conversion 
 or exchange, whether immediately or otherwise. 
 
 BY BANKRUPTS. 
 
 See " Offences against the Bankrupt Laws," post, Book 11., Fart 2, 
 Chap. 4, Sect. 2. 
 
 BY DIRECTORS, OPPICBRS AND MEMBERS OF PUBLIC COMPANIES. 
 
 Statutes. 
 24 S 25 Vict. c. 96, s. 81.]— Whosoever, being a director, member,, 
 or public officer of any body corporate or public company, shall 
 fraudulently take or apply for his own use or benefit, or for any use 
 or purposes other than the use or purposes of such body corporate 
 or public company, any of the property of such body corporate or 
 public company, shall be guilty of a misdemeanor, and being con- 
 victed thereof shall be liable, at the discretion of the court, to any 
 of the punishments which the court may award as hereinbefore last 
 mentioned. 
 
 Sect. 82 — Keeping fraudulent Accounts.] — Whosoever, being a 
 director, public officer, or manager of any body corporate or public 
 company, shall as such receive or possess himself of any of the pro- 
 perty of such body corporate or public company otherwise than in 
 payment of a just debt or demand, and shall, with intent to defraud, 
 omit to make or to cause or direct to be made a full and true entry 
 thereof in the books and accounts of such body corporate or public 
 company, shall be guilty of a misdemeanor, and being convicted 
 thereof shall be liable, at the discretion of the court, to any of the 
 punishments which the court may award, as hereinbefore last men- 
 tioned. 
 
 Sect. 83 — Wilfully destroying or mutilating Boohs, etc.] — Whoso- 
 ever, being a director, manager, public officer, or member, of any 
 body corporate or public company, shall, with intent to defraud, 
 destroy, alter, mutilate, or falsify any book, paper, writing, or valu- 
 able security belonging to the body corporate or public company, or 
 make or concur in the making of any false entry, or omit or concur 
 in omitting any material particular, in any book of account or other 
 
Embezzlement. 465 
 
 document, shaU be guilty of a misdemeanor, and being convicted 
 thereof shall be liable, at the discretion of the court, to any of the 
 punishments which the court may award, as hereinbefore last men- 
 tioned. 
 
 Sect. 9,i—PnUisUng fraudulent Stotemenis.]— Whosoever, being a 
 director, manager, or public officer of any body corporate or public 
 company, shall make, circulate, or publish, or concur in raakmg, cir- 
 culating, or publishing, any written statement or account which he 
 shall know to be false in any material particular, with intent to 
 deceive or defraud any member, shareholder or creditor of such body 
 corporate or public company, or with intent to induce any person to 
 become a shareholder or partner therein, or to intrust or advance 
 any property to such body corporate or public company, or to enter 
 into any security for the benefit thereof, shall be guilty of a_ mis- 
 demeanor, and being convicted thereof shall be liable, at the discre- 
 tion of the court, to any of the punishments which the court may 
 award, as hereinbefore last mentioned. 
 
 Sect. 85 — Not to exempt from giving Eeidmce, etc.']— Ante, p. 458. 
 
 Sect. S6— Remedies not to be affected — Convictions not to be Evidence 
 in Civil Suits.'] — Ante, p. 459. 
 
 Sect. 87 — Offences not triable at Quarter Sessions.] — Ante, p. 459. 
 
 25 <& 26 Vict. c. 89, s. 166 — Penalty on Falsification of Boohs on wind- 
 ing up Joint Stock Company.] —If any director, officer, or contribu- 
 tory of any company wound up under this act destroys, mutilates, 
 alters, or felsifies any books, papers, writings, or securities, or makes 
 or is privy to the making of any false or fraudulent entry in any 
 register, book of account, or other document belonging to the com- 
 pany with intent to defraud or deceive any person, every person so 
 offending shall be deemed to be guilty of a misdemeanor, and upon 
 being convicted shall be liable to imprisonment for any term not ex- 
 ceeding two years, with or without hard labour. 
 
 Sect. 167 — Direction of Prosecution by Court in case of winding up 
 by Court — Expenses of Prosecution.] — Where any order is made for 
 winding up a company by the court, or subject to the supervision of 
 the court, if it appear in the course of such winding up that any past 
 or present director, manager, officer, or member of such company has 
 been guilty of any offence in relation to the company, for which he 
 is criminally responsible, the court may, on the application of any 
 person interested in such winding up, or of its own motion, direct 
 the official liquidators, or the liquidators (as the case may be), to in- 
 stitute and conduct a prosecution or prosecutions for such offence, 
 and may order the costs and expenses to be paid out of the assets of 
 the company. 
 
 Sect. 168 — Prosecution by Liquidators with Sanction of Court, in case 
 of voluntary winding up— Expenses of Prosecution.] — Where a com- 
 pany is being wound up altogether voluntarily, if it appear to the 
 liquidators conducting such winding up that any past or present 
 director, manager, officer, or member of such company has been 
 guilty of any offence in relation to the company for which he is 
 x5 
 
466 Embezzlement. 
 
 criminally responsible, it shall be lawful for the liquidators, with the 
 previous sanction of the court, to prosecute such offender, and all ex- 
 penses ptoperly incurred by them in such proaecution shall be pay- 
 able out of the assets of the company, in priority to all other lia- 
 bilities. 
 
 26 c6 27 Viet c. 87, ». 9— Officers of Savings Banks receiving i3e- 
 posits and not paying over same.'] — If any actuary, cashier, secretary, 
 officer, or other person holding any situation or appointment in any 
 savings bank shall receive any sura or sums of money from or on ac- 
 count of any depositor or person desirous of becoming such, or on 
 account of such savings bank, and shall not forthwith, or in the case 
 of local receivers acting on behalf of any savings bank within the 
 time specified in the rules of the said savings bank, duly account for 
 and pay over the same to the trustees or managers thereof, or to such 
 person as may be directed by the rules of the said savings bank, 
 such actuary, cashier, secretary, officer, or local receiver, or other 
 person as aforesaid, on being convicted thereof, shall be guilty of a 
 misdemeanor. 
 
 29 & 30 Vict. c. 108, s. lb— Penalty on Railway Company and its 
 Directors and Officers delivering Securities loithout such Declaration as 
 is mentioned in s. 14, being first put thereon and signed,]— If after the 
 expiration of the time specified in the last preceding section [21 Jan. 
 1867}, any railway company deliver any such mortgage deed, boad, 
 or certificate [see s. 14], without such a declaration [see s. 14] being 
 first put thereon and signed as aforesaid, they shall be deemed guilty 
 of an offence against this act, and shall for every such oflfenee be 
 liable, on summary conviction, to a penalty not exceeding twenty 
 pounds ; and if any director or officer of any railway company know- 
 ingly authorizes or permits the delivery of any such mortgage deed, 
 bond, or certificate without such a declaration being first put thereon 
 and signed as aforesaid, every such person shall be deemed guilty of 
 an offence against this act. 
 
 Sect. 16 — Signing Declaration, etc., hnomng the same to be false.]— 
 If any director or registered officer of a company signs any declara- 
 tion [se« ss. 14, 15], account [see ss. 5— 9J, or statement [see s. 10], 
 under this act, knowing the same to be false in any particular, he 
 shall be deemed guilty of an offence against this act. 
 
 Sect. 17 — Punishment.'] — If any director or officer of a railway 
 company is guilty of an ofience against this act, he shall be Uable, 
 on conviction thereof on indictment, to fine or imprisonment, or on 
 summary conviction thereof, to a penalty not exceeding ten pounds. 
 
 31 <S 32 Vict. e. 119, s. 5 — Signing false Statement, etc., under " Thi 
 Regulaiion of Railways Act, 1868."] — If any statement, balance sheet, 
 estimate or report which is required by this act is false in any par- 
 ticular to the knowledge of any person who signs the same, such 
 person shall be liable, on conviction thereof on indictment, to fine 
 and imprisonment, or on summary conviction thereof, to a penalty 
 not exceeding 50/. 
 
Embezzlement. 467 
 
 Indictment against a Director of a Public Company for fraudulently 
 appropriating the Company's Money. 
 
 Middlesex, to wit :^The jurors for our lady the Queen upon their 
 oath present, that before and at the time of the committing of the of- 
 fence hereinafter mentioned, J. S. was a director [}' director, member, 
 or public officer "] of a certain public company [" any body corporate 
 
 or public covipany,"2 called the Company, and that he the said 
 
 J. S., so being such director as aforesaid, on the day of , in 
 
 the year of our Lord , did unlawfully and fraudulently take and 
 
 apply for his own use and benefit ["/or- his own use or benefit, or for 
 any use or purposes other than the use or purposes of such body corpo- 
 rate or public compamy"'] certain money, to wit, one thousand pounds 
 [" any property^' see 24 & 25 Vict. c. 96, s. 1, ante,p. 303], of and be- 
 longing to the said company ; against the form [as ante, p. 347]. 
 
 Misdemeanor : penal servitude for not more than seven nor less than 
 five [27 if '28 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment, 
 with or without hard labour, and with or without solitary confinement, 
 not exceeding two years. 24 Sf- 25 Vict c. 96, ss. 75, 81. As t» 
 fining the offender and requiring him to enter into recognizances and 
 find sureties for keeping the peace and being of good behaviour, Id', 
 s. in, ante, p. 307. 
 
 This offence is not triable at quarter sessions. 24 Sf 25, Vict. c. 96, 
 s. 87 (ante, p. 459). 
 
 Evidence.. 
 Prove that the defendant was, at the time of the commission of the 
 offence, a director of the public company mentioned in the indict- 
 ment. Proof of his acting in that capacity will be sufficient ^n'ma 
 facie evidence of his appointment. The statute does not define what 
 is to be deemed a "public company" within these sections; but 
 there can be no doubt that any company constituted by act of par- 
 liament or by charter, or registered under the Joint Stock Com- 
 panies Acts, would be held within them. Prove, also, that he took 
 and applied to his own use the money of the company, as stated in 
 the mdictment, or some part thereof, and that he did so fraudulently 
 (see ante, ^. 208 J. 
 
 Indictment for publishing Fraudulent Statements. 
 Commmcemeni as in the last precedenf]—dii unlawfully circulate 
 and pubhsh {"make, circulate, or publish, or cmew i» making, circu- 
 lating, or pubbshing"} a certain written statement and account ["any 
 wrztten statement or account"], which said written statement was false 
 in certara material particulars, that is to say, in this, to wit, that it 
 was therein falsely stated that {state the particulars), he the said J. S. 
 tuen well knowing the said written statement and account to be false 
 in the several particulars aforesaid; with intent thereby then to 
 deceive and defraud J. N., then being a shareholder of the said pub- 
 lic company ["TOtt vntent to deceive or defraud amy member, share- 
 iwtaer, or creditor of such body, corporate or puMic company, or with 
 intent to induce amy person to become a shareholder or partner therein, 
 or to entrust or advamce any property to such body corporate or pub- 
 lic company, or to enter into my security for the benefit thereof"] ; 
 agamst the form [as ante, p. 347]. Add counts stating the intent to be 
 to deceive and defraud " certain persons to the jurors afores^d un- 
 
468 Fahe Pretences. 
 
 known, being shareholders of the said public company;'' and also 
 varying the allegation of the intent as above stated. 
 
 Misdemeanor, 24 S 26 Vict. c. 96, s. 84. See the last precedent. 
 
 This offence is not triable at qiiarter sessions, 24 cfc 25 Vict. c. 96, 
 ». 87 (ante, p. 459). 
 
 JEh>idence. 
 
 Prove that the defendant was a director, as in the last case ; that 
 he circulated and published, or concurred in circulating and publish- 
 ing, a statement in writing, or in print, relating to the aflfairs of the 
 company, false in some material particular or particulars, as stated 
 in the indictment (the materiality will be a question for the judge to 
 determine) : that it was false in such particular or particulars to the 
 defendant's knowledge, which maybe shown either expressly, by his 
 acts or declarations, or impliedly, from the situation he filled in the 
 company, the part he took in its management, and his opportunities 
 of knowing its condition ; and that he did so with the fraudulent 
 intent set forth in the indictment, which will in general be infereed 
 from its tendency to produce the effect alleged to have been in- 
 tended ; and prove his knowledge of the falsehood of the statement. 
 This last head of evidence of course includes the proof that J. N. 
 was a shareholder, etc., as stated in the indictment. It is not neces- 
 sary to prove that any person was actually prejudiced by the fraudu- 
 lent statement. 
 
 Sect. 3. 
 false pretences and cheating. 
 
 Statute. 
 24 (b 25 Vict. c. 96, s. 88.] — Whosoever shall by any false pretence 
 obtain from any other person any chattel, money, or valuable secu- 
 rity, with intent to defraud, shall be guilty of a misdemeanor, and 
 being convicted thereof shall be liable, at the discretion of the court, 
 to be kept in penal servitude for the term of three years \mw floe 
 years, 27 & 28 Vict. c. 47, s. 2, ante, p. 173], or to be imprisoned for 
 any term not exceeding two years, with or without hard labour, and 
 with or without solitary confinement ; Provided that if, upon the trial 
 of any person indicted for such misdemeanor, it shall be proved that 
 he obtained the property in question in any such manner as to 
 amount in law to larceny, he shall not by reason thereof be entitled 
 to be acquitted of such misdemeanor ; and no person tried for such 
 misdemeanor shall be liable to be afterwards prosecuted for larceny 
 upon the same facts ; Provided also, that it shall be sufficient in any 
 indictment for obtaining or attempting to obtain any such property 
 by false pretences, to allege that the party accused did the act with 
 intent to defraud, without alleging an intent to defraud any particular 
 person, and without alleging any ownership of the chattel, money, or 
 valuable security ; and on the trial of any such indictment it shall 
 not be necessary to prove an intent to defraud any particular person, 
 but it shall be sufficient to prove that the party accused did the act 
 charged with an intent to defraud. 
 
 Sect. 89 — Where the Money, etc., is caused to be paid or delivered to 
 
False Pretences. 469 
 
 any Person other than the Party charged.]— 'WhoBoevez shall by any 
 talse pretence cause or procure any money to be paid, or any chattel 
 or valuable security to be delivered to any other person, for the use 
 or benefit or on account of the person making such false pretence, or 
 of any other person, with intent to defraud, shall be deemed to have 
 obtained such money, chattel, or valuable security, within the mean- 
 ing of the last preceding section. 
 
 Sect. 90 — Inducing Persons by Fraud to execute Deeds and other 
 Instruments.] — Whosoever, with intent to defraud or injure any other 
 person, shall by any false pretence fraudulently cause or induce any 
 other person to execute, make, accept, endorse, or destroy the whole 
 or any part of any valuable security, or to write, impress, or affix his 
 name, or the name of any other person, or of any company, firm, or 
 co-partnership, or the seal of any body corporate, company, or 
 society, upon any paper or parchment, in order that the same may 
 be afterwards made or converted into or used or dealt with as a 
 valuable security, shall be guilty of a misdemeanor, and being con- 
 victed thereof shall be liable, at the discretion of the court, to be 
 kept in penal servitude for the term of three years [now five years, 
 27 & 28 Vict. c. 47, s. 2, ante, p. 173], or to be imprisoned for any 
 term not exceeding two years, with or without hard labour, and with 
 or without solitary confinement. 
 
 14 & 15 Vict. c. 100, s. 18 — Indictment — Coin and Bank Notes.] — 
 Ante, p. 59. 
 
 Indictment for obtaining Goods, etc., by false Pretences. 
 Commencement as ante, p. 313] — unlawfully, knowingly, and de- 
 signedly did falsely pretend to one J. N. [that the said J. S. then was 
 the servant of one K. 0., of St. Paul's Churchyard, in the city of Lon- 
 don, tailor {the said K. 0. then and long before being well known to 
 the said J. N., amd a customer of the said J. N. in his business and way 
 of trade as a woollen draper), and that the said J. S. was then sent by 
 the said K. 0. to the said J. N. for five yards of superfine woollen 
 ' cloth]; by means of which said false pretences the said J. S. did then 
 unlawfully obtain from the said J. N. five yards of superfine woollen 
 cloth (" any chattel, money, or valuable security") with intent to de- 
 fraud; whereas in truth and in fact [the said J. S. was not then the 
 servant of the said K. 0.; amd whereas in truth and in fact the said 
 J. S. was not then sent by the said K. 0. to the said J. N. for the said 
 cloth or for any cloth whatsoever]; as he the said J. S. well knew at 
 the time when he did so falsely pretend as aforesaid ; against the 
 form [as ante, p. 347]. An indictment, which stated that the defend- 
 ant " unlawfully, knowingly, and designedly did feloniously pretend," 
 etc., was held bad. R v Walher, QC.S^P. 657. One who obtains 
 goods by false pretences in one county, and afterwards brings them 
 into another county, where he is apprehended with them, cannot be 
 indicted for the offence in the latter county, but must be indicted in 
 the county where the goods were obtained. B. v. Stanbury, L if C. 
 128; 31 Z. J {M. C.) 88 All persons vyho have concurred and 
 assisted m the fraud may be indicted and convicted as principals, 
 though not present at the time of making the pretence and obtaining 
 the money or goods. S. v. Moland, 2 Mood. C. V. 276 : see 24 * 25 
 YKt. c. 96, s. 98. ^ 
 
470 False Pretences. 
 
 Misdemeanor: penal servitude Jbr five [27 Sf ^ Vict. c. 47, ». 2, 
 ante, p. 173] years, or imprisonment, with or mthmtt hard hboar, 
 and with or without solitary confinement {such confinement not er- 
 eeeding one mouth at any one time, nor three months is any one year, 
 24 * 25 Vict. c. 96, s. 119, ante, p. 808), not exceeding turn years, 24 
 if as Viet. e. 96, s. 88. As to fining the offmder and requiring Urn 
 to enter into recognizances and find sureties for heeping the peace 
 and being of good behaviour. Id. s. 117, ante. p. 307. 
 
 No aidictment can be preferred for obtaining money or other pro- 
 perty by false pretences unless one or oilier of the prelioiiaary steps 
 required ly 22 S^ 23 Vict. c. 17, s. 1, has been tahen. See ante, 
 pi. 
 
 Forfrttudspiadshable by particular statutes, see 2 Rus' C. Sf M., 
 by Greaves, 701 , 4th ed. As to the punishment of bankrupts who 
 hare fraudulent^ obtained goods under the Jake pretence (f carrying 
 on business in the ordinary course if trade, see 32 ^ 33 Vict. e. 62, 
 *. 11, par. 14, post. As to the punishment <^ directors and other 
 officers of corporate bodies and public companies for the publica- 
 tion of kBoiBOtgly false statements, fee 24 ^ 25 Viet, c. 96, ss. 81—84, 
 ante, pp. 464, 465. As to the concealment of instruments material to 
 the title and falsification of pedigrees, on a sale or mortgage, see 22 ^ 
 23 Vict. c. 35, s. 24, amended by -23 Sr 34 Vict. c. 38, s. 8. ByS^9 
 Vict. c. 109, s. 17, winning at play by fraud is punishable as far ob- 
 taining money by false pretences. (See post. Chap. V., Sect. 5, and 
 S. V. Hudson, BeU, 263; 29 L. J. {M. C.) 145.) 
 
 The indictment must set forth the pretences. Where it alleged 
 the money to have been obtained by ^^ false pretences," without spe- 
 cifying them, it was holden to be error, and the judgment was re- 
 versed. R. V. Mason, 2 T. R. 581. If, indeed, it were for a conspiracy 
 to obtain money bv false pretences, it seems it would be otherwise. 
 %B.& Ad. 204. See Dav. & J/. 208. Where the prisoAers delivered 
 a quantity of soot to the prosecutor, pretending that it was more in 
 quantity than it really was, and that it was of Sie weight described 
 in a ticket which they produced to the prosecutor, and they thereby 
 obtained from him the price for the alleged quantity of soot, and the 
 indictment charged the prisoners with obtaining money of the prose- 
 cutor by falsely pretending to him that the soot was of such a weight, 
 whereas it was not of that weight, but of a less weight, it was hel4 
 that it was not necessary in the indictment to allude to the ticket, 
 as what passed respecting the ticket was merely matter of evidence. 
 R. V. Lee, L. & C. 418; 33 L. J. {M. C.) 129. And it is not neces- 
 sary to state in what manner the false pretence was calculated to 
 effect or did effect the obtaining of the money. Hamilton v. B., 9 
 Q. B. 271 ; 16 L. J. {M. C.) 9. 
 
 And the pretences must be set forth with sufficient certainty. But 
 where the pretence alleged was a wager made " with a colonel in 
 the army, then at Bath," without naming him — the court held it to 
 be sufficient ; for probably the defendant at the time did not mention 
 the name of the colonel. Toung y.R,ST. R.98; 2 East, P. C. 82, 
 83; li,eacft,505. 
 
 As to the false pretences which are within the meaning of the act 
 The first statute on this subject, 33 H. 8, c. 1, extended only to cases 
 where the money, etc., was obtained by means of a false token or 
 counterfeit letter in the name of another ; but this provision not 
 being deemed sufficiently extensive, the statute 30 G.2, c. 24, was made 
 for die purpose of including all false pretences whatsoever. These 
 
FaUe Pretences. 471 
 
 two statutes, the former entirely, and the latter so far " as relates to 
 obtaining by false pretence or pretences any property as therein 
 mentioned :" and also the whole of the statute 52 G. 3, c. 64, wliich 
 extended the provisions of the 30 G. 2, c. 24 ; and also so much of 
 the statute 3 G. 4, c. 114, as relates to the punishment for obtaining 
 any property as therein mentioned by false pretences— were repealed 
 by Stat. 7 cfe 8 ff. 4, c. 27, and consolidated and amended by stat. 
 1 <&8 G.i, u. 29, s. 53, which substituted the words " by any false 
 pretence," for the words " by false pretence or pretences," which were 
 in the stat. 30 G. 2, c. 14, ». 1. The same words are repeated in 
 the present statute 24 S 25 Vict. a. 96, s. 88. The phrases in all 
 these acts are in substance the same, and consequently the decisions 
 upon the repealed statutes will be applicable to cases arising under 
 the new act. And it may be laid down as a general rule of interpre- 
 tation of the statute, that wherever a person fraudulently represents 
 as an emisting fact that which is not an existing fact, and so gets 
 money, etc., that is an offence within the act. See R. v. Woolley, 1 
 Dea. 559; i C. & K.'di; 19 L. J. (if. C) 165. Where a carrier, 
 falsely pretending that he had carried certain goods to A. B., de- 
 manded, and thereupon obtained fi-om the consignor, sixteen shillings 
 for the carriage of them, it was holden to be within the statute. B. 
 V. Coleman, 2 East, P. C. 672. See B. v. Airey, 2 East, 30. Where 
 the foreman of a manufacturer, who was in the habit of receiving 
 from his master money to pay the workmen, obtained from him, by 
 means of false written accounts of the wages earned by the men, 
 more than the men had earned or he had paid them, the judges held 
 it to be within the act ; they said that all cases where the false pre- 
 tence creates the credit are within the statute ; and here the de- 
 fendant would not have obtained the excess above what was really 
 due to the workmen, were it not for the false account he had delivered 
 to his master. B. v. Witchell, 2 East, P. C. 830. Where the de- 
 fendant falsely pretended to J. N., that he was entrusted by the 
 Duke de Lauzan to take some horses from Ireland to London for 
 him, and that he had been detained so long by contrary winds that 
 his money was all spent, by means of which representation he in- 
 duced J. N. to advance him money; this was holden to be within the 
 act. B. V. Villeneuve, lb. So, where the defendants, falsely pre- 
 tending that they had made a bet with A. B, that one of them should 
 run ten miles within an hour, prevailed upon J. N. to join them in 
 the bet, and obtained from him twenty guineas as his share in it; the 
 judges held this to be within the statute, notwithstanding the pre- 
 tence was probably one against which common prudence might have 
 guarded. Young v. B-, 3 T. B. 98. Where an attorney, who had 
 appeared for .J. S., who was fined 21. on a summary conviction, called 
 on the wife of J. S., and told her that he had been with J. N., who 
 was fined 21. for a like offence, to Mr. B. and Mr. L., and that he had 
 prevailed on Mr. B. and Mr. L. to take 11. instead of 21, and that if 
 she would give him U., he would go and do the same for her; and 
 she thereupon gave him a sovereign, and afterwards paid him for his 
 trouble ; and it was proved that the attorney never applied to Mr. B. 
 or Mr. L. respecting either of the fines, and that both were afterwards 
 paid in full: it was held that the attorney was guilty of obtaining 
 money by false pretences. B. v. Asterley, 7 C. & P. 191. Where a 
 servant, who had authority to buy goods, and was to be repaid on 
 producing a ticket containing a statement of the purchase, produced 
 such a ticket and obtained the amount stated therein, no purchase 
 
472 False Pretences. 
 
 having in fact been made, this was held to be not larceny, but ob- 
 taining money by false pretences. R. v. Barnes, 2 Den. 59; 20 L. J. 
 (M. C.) 34. And see R. v. Prince, post, p. 477. It was the pri- 
 soner's duty to ascertain daily the amount of dock dues payable 
 by his master, and, having ascertained it, to apply to his master's 
 cashier for the amount, and then to pay it in discharge of the dues. 
 On one occasion by representing falsely to the cashier that the 
 amount was larger than it really was, as he knew, the prisoner 
 obtained from the cashier the sum he stated it to be, and then 
 paid the real amount due, and appropriated the difference to his 
 own use. This was held to be not larceny, but obtaining money 
 by false pretences. R. v. Thompson, L. & C. 233 ; 32 L. J. (M. C.) 
 67. So, where the defendant obtained goods by falsely stating 
 that he wanted them for J. S., who lived at N., and was a person 
 whom he would trust with 1,000Z., and who went out to New Orleans 
 twice a year to take goods to his sons, this was held to be a suffi- 
 cient false pretence within the statute. R. v. Archer, Dears. 449. 
 So, where the false pretence alleged was, that a person who lived 
 in a large house down the street, and had had a daughter married 
 some time back, had been to him (the defendant) about some carpet, 
 and had asked him to procure a piece of carpet, whereby the defend- 
 ant obtained from the prosecutor twenty yards of carpet ; this was 
 held sufficient. R. v. Bumsides, Bell, 282 ; 30 L. J. (M. C.) 42. Ob- 
 taining as a loan, from the drawer of a bill accepted by the prisoner 
 and negotiated by the drawer, part of the amount, for the purpose of 
 paying the bill, under the false pretence that the prisoner was pre- 
 pared with the residue of the amount, was holden to be an offence within 
 the statute, the prisoner being shown not to be prepared, and not in- 
 tending so to apply the money. R. v. Orossley, 2M.d; Rob. 17. In 
 like manner, where the defendant obtained goods by a false statement 
 that a bill, drawn on and accepted by himself, and purporting to be 
 payable at the London and Westminster Bank, which he gave the 
 prosecutor for the price of the goods, would be paid at the bank the 
 next day, and that he had made arrangements for it, this was held a 
 false pretence within the act. R. v. Hughes, 1 F.& F. 365. Where 
 the secretary of an Odd Fellows' Lodge told a member that he owed 
 the lodge 13s. M., and thereby obtained that sum from him fraudu- 
 lently, whereas the member owed 2s. id. only, he was held to be 
 rightly convicted of obtaining money by false pretences. R. v. 
 Woolley, 1 Den. 669; Z C. & K. 98; 19 L. J. (M. C.) 166. Obtaining 
 money by means of false statements of the name and circumstances 
 of the defendant or any other person, in a begging letter, is within the 
 statute. R. v. Jones, 1 Den. 561; 19 L. J. (M. C.) 162. Where the 
 defendant pretended that he was carrying on an extensive business 
 as a surveyor and house agent, and thereby induced the prosecutor 
 to deposit with him 251., as a security for his (the prosecutor's) 
 fidelity as a clerk, whereas the defendant was not carrying on am/ 
 business as a surveyor or house agent, this was held to be a false 
 pretence within the statute. R. v. Orab, 11 Cox, 85 (C C. B.). But 
 where the defendant pretended (1) that he was doing a good business, 
 and (2) that he had recently sold a good business, and thereby in- 
 duced the prosecutor to deposit with him 501., as a security for the 
 prosecutor's fidelity as an assistant, whereas in truth defendants 
 business was worthless and the defendant was a bankrupt, it was 
 held that neither of the false pretences alleged came within the 
 statute. As to the first pretence it was a mere exaggerated repre- 
 
False Pretences. 473 
 
 sentation of value upon which, though fraiidulent, an indictment 
 would not lie, and as to the second it was too remote. R. v. Wil- 
 liamsm, 11 Cox, 32S, per By les, J . It will be noticed that in the 
 former of these two cases there was no existing business at all, 
 whereas in the latter, there appears to have been an existing, although 
 a worthless, business. See also M. v. Watson, Dears. & B. 348 ; 27 
 L. J. (M. C.) 18, in which, although it was not necessary to decide 
 the point, Erie, J., said : — " I wish not to be supposed to assent to ■ 
 the proposition that an indictment [for false pretences] can be sus- 
 tained by proof of mere exaggeration of the prosperity of a business, 
 where there is an original business. It is difficult to draw a decided 
 line ; but I think it has been decided that exaggerated praise does 
 not render a person liable within the statute." Where the defend- 
 ant obtained money from a woman under the threat of an action for 
 breach of promise of marriage, he being in fact a married man 
 already, an indictment, laying as the false pretence that he was 
 entitled to maintain an action against her for the breach of promise, 
 was held by Maule, J., to be good, for that this was a false pretence 
 within the statute. R. v. Copeland, C. & Mar. 516. An indictment 
 charging the prisoner with obtaining money from a wife, whose 
 husband had run away, by falsely pretending to her, that she, the 
 prisoner, had power to bring him back, is good, and sufficiently 
 states an indictable offence. R. v. GHles, L. & C. 602 ; 34 L. J. {M. 
 C.) 50. Wbere the prisoner sold to the prosecutor a reversionary 
 interest which he had previously sold to another, and the prosecutor 
 took a regular assignment of it, with the usual covenants for title, 
 Littledale, J., ruled that he could not be convicted for obtaining 
 money by false pretences ; for if this were within the statute, 
 every breach of warranty or false assertion at the time of a 
 bargain might be treated as such, and the party be transported. 
 R. v. Codrington, I C. & P. 661. In R. v. Kenrick, 5 Q. B. 49; Dav. 
 <& M. 208, that decision was much questioned ; and it was strongly 
 intimated, that the execution of a contract between the same 
 parties does not secure from punishment the obtaining of money 
 under false pretences, in conformity with that contract. And in R. 
 V. Abbott, 1 Den. 173; "i C. & K. 630, it was decided unanimously 
 by the judges, upon a case reserved, that the law was so. And see 
 also R. V. Burgon, Dears. & B.U; 25 L. J. {M. C.) 105: and R. v. 
 Ooss, Bell, 208 ; 29 L. J. (M. C.) 86, in which, upon the authority of 
 R. v. Abbott, the same law was laid down. In a very recent case, R. v. 
 MeaUn, 11 Cox, 270 (C. C. R.), where the defendant induced the 
 prosecutor to lend him money on a bill of sale of furniture, and the 
 joint and several promissory note of the defendant and another per- 
 son, by representing that the furniture was unincumbered, whereas 
 the defendant had previously given a bill of sale of the same furni- 
 ture to another person, although not to its full value, this was held 
 to be an indictable false pretence. Where the indictment charged 
 that the defendant, having in his possession a certain weight of 
 twenty-eight pounds, falsely pretended to C. that a quantity of co'ils 
 which he delivered to C, weighed sixteen hundred weight (meaning 
 1,792 pounds weight), and were worth IZ., and that the weight was 
 fifty-six pounds, by means of which he obtained a sovereign from C. 
 with intent to defraud him of part thereof, to wit, 10s. ; whereas the 
 coals did not weigh 1,792 pounds, and were not worth IZ., and 
 whereas the weight was not fifty-six pounds, and whereas the coals 
 were of the weight of 896 pounds only, and were not worth more 
 
474 Fake Pretences. 
 
 than 10«., and whereas the weight was twenty-eight pounds only • 
 the judges (according to the report) held a conviction on the indict- 
 ment wrong, on the ground that all the pretences, except that 
 relating to the weight, were mere false affirmations, and that as to 
 the weight, there was no allegation to connect the sale of the coals 
 with the use of the weight. R. v. Beed, 7 C. & P. 848. It was 
 stated by Lord Denman, C. J., in Hamilton v. R., 9 Q. B. 271, that 
 this case of R. v. Reed was misreported, and that no such decision 
 was given ; but his lord.ship seems to have been mistaken in this • 
 see Dears. & B. 35, note (e). But, at all events, the case of R, v. 
 Reed can no longer be considered to be law since the decision in R 
 V. Sherwood, Dears. & B. 251 ; 26 L. J. (M. C.) 81. There the 
 defendant, having contracted to sell and deliver to the prosecutrix a 
 load of coals at Id. per cwt., delivered to her a load of coals which 
 he knew weighed only 14 cwt., but which he stated to her contained 
 18 cwt., and produced a ticket, showing 18 cwt. to be the weight, 
 which he said he had himself made out when the coals were weighed; 
 and she thereupon paid him the price as for 18 cwt., which was 
 2s. id. more than was really due ; and it was held that the defendant 
 was indictable for obtaining the 2s. M. by false pretences. This 
 decision was approved and followed in R. v. Lee, L. & C. 418 ; 33 
 L. J. {M. C.) 129. So, where the prosecutor bought of the defendant 
 and paid him for a quantity of coal on a false representation by him 
 that there were 15 cwt., whereas in fact there were only 8 cwt., but 
 so packed in the cart as to have the appearance of a larger quantity, 
 this was held to be an indictable false pretence. R. v. Ragg, Mill, 
 214 ; 29 L. J. (M. C.) 86. See also R. v. EoffleUm, post, p. 484. 
 Where the indictment charged the defendant with falsely pretending 
 to the prosecutor, whose mare and gelding had strayed, that he 
 would tell him where they were, if he would give him a sovereign 
 down ; and the prosecutor gave the sovereign, but the defendant 
 refused to tell ; the conviction was held bad ; the indictment should 
 have stated that he pretended he knew where they were. R. v. 
 Douglas, 1 Mood. C. C. 462. An indictment against A. and B. 
 charged that C. was possessed of a mare and A. of a horse, and that 
 A. and B. falsely pretended to C. that B. was then and there pos- 
 sessed of a certain sum of money, to wit, 121., and that if C. would 
 exchange his mare for A.'s horse, B. was willing and ready to pur- 
 chase the horse ofjC., and give him 121. for it ; whereas in truth and 
 in fact B. was not then and there possessed of the said sum of HI, 
 and was not then and there ready and willing to purchase the said 
 horse of C. and to pay him the 121. : and it was held bad, on demur- 
 rer, for not averring that the defendant knew that B. was not pos- 
 sessed of the 121. R. V. Henderson, 2 Mood. C. C. 192 ; C. & Mar. 
 328. But as the word "knowingly" is not in the statute, an indict- 
 ment which does not contain that word, but follows the words of the 
 statute, is sufficient after verdict. R. v. Bowen, 13 Q. B. 790 ; l^L.J. 
 (M. C.) 65 ; see Hamilton v. R., 9 Q. S. 271 ; 16 L. J. (M. C.) 9. An 
 indictment for obtaining money from A. under the false pretence that 
 the defendant intended to marry A., and wanted the money to pay for 
 a wedding suit he bad bought, was held not sufficient to sustain a con- 
 viction. R. V. Johnson, 2 Mood. C. C. 254. A person who obtains 
 from a pawnbroker, upon an article which he falsely vepreaents to be 
 silver, a greater advance than would otherwise have been made, is 
 guilty of a false pretence within the statute; although the pawn- 
 broker have the opportunity of testing the article at the time, R- t. 
 
False Pretences. 475 
 
 Ball, a S Mar. 249 ; see B. v. Roebuck, Dears. & B.U; 25 L. J. 
 (M. C.) 101 : R. V. Gnsa, Bell, 208; 29 L. J. (M. C.) 86. And ^ 
 false representation that a stamp on a watch is the hall-mark of the 
 Goldsmiths' Company, and that the number 18, part thereof, indi- 
 cates that it is made of eighteen carat gold, is a false pretence, and 
 is not the less so because accompanied by the representation that 
 the watch is a gold one, and some gold is proved to have been con- 
 tained in its composition. R. v. Suter, 10 Cox, bll. But a false 
 representation merely as to the quality of goods sold or pledged is 
 not indictable. The defendant was convicted on an indictment for 
 obtaining money by false pretences, the pretences charged being 
 that certain spoons were of the best quality, that they were equal to 
 Elkington's A (meaning spoons made by Messrs. Elkington, and 
 stamped by them with the letter A) ; that the foundations were of 
 the best material, and that they had as much silver on them as 
 Elkington's A. The representations were made to a pawnbroker for 
 the purpose of obtaining, and the defendant did thereby obtain, 
 advances of money on the spoons, which were in fact of inferior 
 quality, and were of less value than the money advanced on them, 
 and the pawnbroker stated that he was induced by the defendant's 
 misrepresentations alone to advance the money, and that if he had 
 known the real quality of the spoons he would have advanced no 
 money on them. The jury found the defendant guilty of fraudu- 
 lently and falsely representing that the spoons had as much silver 
 on them as Elkington's A, and that the foundations were of the best 
 material; etc., and that he thereby obtained the money. It was 
 nevertheless held, by a large majority of the judges, that the con- 
 viction could not be sustained. R. v. Bryan, Dears. & B. 265 ; 26 
 L. J. (M. C.) 84. See also R. v. Levine, 10 Cox, 374. The decision 
 in R. v. Bryan is said by Erie, C. J., to have gone " upon the sound 
 principle, that indefinite praise upon a matter of indefinite opinion 
 cannot be made the ground of an indictment for false pretences." 
 R. V. Goss, 29 L. J. (M. C.) 90. But a false representation respect- 
 ing an alleged matter of definite fact knowingly made, is a false 
 pretence within the statute. Thei-efore, where the defendant in- 
 duced a purchaser to buy and pay for a cheese of a very inferior 
 description by the wilfully false statement that a taster of a different 
 and superior cheese produced as a sample had formed part of and 
 been taken out of the cheese sold, it was held that-he might be con- 
 victed of obtaining money by false pretences. R. v. Goss, Bell, 
 208; 29 L.J. (M. C.) 90. So where the defendant sold spurious 
 blacking as "Everett's blacking," he was held to be indictable for 
 the false pretence. R. v. Dundas, G Cox, 380. The assistant judge 
 of the Middlesex sessions having directed a jury that the decisions 
 of the judges were to the effect that a mere representation of an 
 article as gold, however small the portion of gold it contained, 
 amounted only to an exaggeration of its quality, and would not 
 support a criminal charge, Willes, J., said that he must except to 
 this direction. R. v. Suter, 10 Cox, 577, 578. 
 
 The defendant and two other persons entered into articles of 
 partnership, by the terms of which the profits were to be divided 
 equally among them. By a subsequent verbal arrangement the 
 defendant was to act as agent for the sale of the partnership goods, 
 and was to receive a commission on all orders obtained by him, 
 which commission was to be paid out of the partnership funds before 
 any division of profits was made. The defendant, by falsely pre- 
 
476 False Pretences. 
 
 tending that he had obtained some orders, got his partners to pay 
 him a sum for commission. It was held that he was not indictable 
 for false pretences, as his charges were payable out of the partner- 
 ship funds, and his false statement was a misrepresentation concern- 
 ing a partnership matter, and would have to be investigated, and the 
 sum paid duly considered, in taking the pai-tnership accounts in 
 order to ascertain the profits. R. v. Evans, L. & C. 252; 32 i J 
 iM.C.) 38. 
 
 It is not necessary that the pretence should be in words; the 
 conduct and acts of the party will be sufficient, without any verbal 
 representation. JR. v. Hunter, R. v. Carter, 10 Cox, 642, 648. Thus, 
 if a person obtain goods from another upon giving him in payment 
 his cheque upon a banker, with whom in fact he has no account, this 
 (although not indictable as a fraud at common law, R. v. Lara, 6 
 T. R. 565 : see R. v. Flint, R. & R. 460) is a false pretence within 
 the meaning of the act. JR. v. Jackson, 3 Camp. 370. Where the 
 prisoner was charged with falsely pretending that a post-dated cheque, 
 drawn by himself, was a good and genuine order for 25Z., and of the 
 value of 25Z., whereby he obtained a watch and chain ; and the jury 
 found, that, before the completion of the sale and delivery of the 
 watch by the prosecutor to the prisoner, he represented to the prose- 
 cutor that he had an account with the bankers on whom the cheque 
 was drawn, and that he had a right to draw the cheque, though 
 he postponed the date for his own convenience, all which was false; 
 and that he represented that the cheque would be paid on or after 
 the day of the date, but that he had no reasonable grotmd to believe 
 that it would be paid, and that he had no funds to pay it ; he was 
 held to be properly convicted. R. v. Parker, 2 JUood. C. C.\;l 
 C. d P. 825. But where the indictment stated that the defendant 
 falsely pretended to A. B. that he was a captain in the East India 
 Company's service, and that a certain promissory note, which he then 
 delivered to A. B., was a valuable security for 211., by means of 
 which false pretences he fraudulently obtained from A. B. Bl. 15s.; 
 whereas the defendant was not a captain, etc., and the note was not 
 a valuable security, etc. : it was holden, on error, that as it did not 
 appear but that the note was the defendant's own promissory note, 
 or that he knew it to be worthless, there was no sufficient false 
 pretence in that respect; and, as the two pretences were to be taken 
 together, that the indictment was bad. R. v. Wickham, 10 A. & E. 
 34 ; 2 Per. & D. 333 ; % L. J. (M. C.) 87. See also R. v. FhUpoOis 
 1 C. & K. 112. Where the prisoner passed the note of a country 
 bank, which he knew had stopped payment, it appearing that one 
 of the partners was solvent, Gaselee, J., held that he could not be 
 convicted for obtaining money under false pretences. R. v. Spencer, 
 Z C.& P. 420. It would seem, however, that an indictment which 
 charged that the defendant olDtained money by falsely pretending 
 that a certain piece of paper was a bank note then current, and of 
 the value for which it purported to be made, would be supported by 
 evidence that it was the note of a bank which had stopped payment, 
 and was no longer in existence, and that it had paid only a small 
 dividend, and that these facts were known to the defendant. R. v. 
 Evans, Bell, 187 ; 29 L. J. {M. C.) 20. But in that case an allega- 
 tion that the note was of no value whatever was held not to be 
 supported by the above evidence. Where an indictment charged 
 the defendant with obtaining money, by falsely pretending that a 
 piece of paper was a bank note then current, and of the full value q£ 
 
False Pretences. 477 
 
 hi., and the evidence was that the piece of paper was the note of a 
 hank which had stopped payment forty years before, and had not 
 reopened, and that the defendant knew it, this evidence was held 
 sufScient to justify a conviction, although it appeared from the cross- 
 examination of a witness for the prosecution, that the bank had been 
 made bankrupt, and the bankruptcy proceedings were not produced, 
 and there was no evidence as to what dividend, if any, had been 
 paid. R. V. Dowey, 37 L. J. (M. C.) 52. Where a man obtained 
 goods and money for a forged note of hand for ten shillings and 
 sixpence, the judges held it to be a false pretence within the act. 
 R. V. Freeth, R. & R. 127. In another case, however, where the 
 prisoner obtained goods by means of a forged oi:der, Taunton, J., 
 held that he could not be indicted for obtaining them by false 
 pretences, but should have been indicted for forgery; R. v. Evans, 
 b C. & P. 553; and the same was afterwards held by Parke, B,, 
 and Coltman, J., in R. v. Anderson, 2M. <& Rob. 471. But see novi 
 14 c6 15 Vict. c. 100, s. 12, ante, p. 164. And where the cashier 
 of a bank, who had a general authority to conduct the business of 
 the bank, and to part with its property on the presentation of a 
 genuine order from a customer, was deceived by a forged order, and 
 parted with the property of the bank to the person who presented 
 the order, and who knew the order to be forged, it was held that the 
 latter was guilty of obtaining, by false pretences, the money so paid 
 on the order. R. v. Prince, 38 L. J. {M. C.) 8 ; L. R., 1 C. C. R. 150. 
 Fraudulently offering a " flash note" in payment, under the pretence 
 that it is a bank-note, is a false pretence within the statute. R. v. 
 Coulson, 1 Den. 592; 19 L. J. (M. C.) 182. Where a man assumed 
 the name of another to whom money was required to be paid by a 
 genuine in-strument, this was holden to be a pretence within the 
 meaning of the act. R. v. Story, R. & R. 81. So, where a person 
 at Oxford, who was not a member of the university, went, for the 
 purpose of fraud, wearing a commoner's gown and cap, and obtained 
 goods, this was held a sufficient false pretence to satisfy the statute, 
 though nothing passed in words. R. v. Barnard, 1 C. <& P. 784. 
 
 The pretence (as may be collected from the authorities above 
 quoted) must be of some existing fact, made for the purpose of 
 inducing the prosecutor to part with his property. Therefore, a 
 pretence that the party would do an act he did not mean to do, as a 
 pretence to pay for goods on delivery, is not a false pretence within 
 the act, but merely a promise for future conduct. R. v. Ooodhall, 
 R. & R. 461. So, where the defendant obtained money from the 
 prosecutor by the false pretence that he loas going to pay his rent, 
 whereas he had no intention of paying his rent, this was held to be 
 no false pretence within the statute. R. v. Lee, L. & C. 309; 9 Cox, 
 304. And a pretence to a parish officer, as an excuse for not work- 
 ing, that the party had not clothes, when he reaUy has, though it 
 induced the officer to give him clothes, is not a pretence within the 
 statute, the statement being rather a false excuse for not working 
 than a false pretence to obtain goods. R. v. Wakeling, R. & R. 504. 
 And where the false pretence averred in the indictment was, that the 
 defendant having executed certain work, there was a certain sum 
 due and owing to him on account of it, whereas only a smaller sum 
 was due to him; this was held bad, as not sufficiently averring a 
 false pretence of an existing fact, and being proveable by evidence 
 of a mere wrongful overcharge. R. v. Oates, Dears. 459; 24 L. J. 
 {M. C.) 123. Where an indictment alleged that the defendant 
 
478 Pahe Pretences. 
 
 falsely pretended to P., who lived at one T.'s, that the said P. was 16 
 give the defendant 10s., and that T. was going to allow him lOj. » 
 week, it was held (Blackburn, J. and Pigott, B., dub.) that the 
 indictment did not allege with sufficient certainty any false pretence 
 respecting any existing fact. B. v. Henshaw, L. S C. 444; 33 L. J. 
 XM. C.) 132. But where the statement consists partly of a fraudu- 
 lent misrepresentation of an existing fact, and partly of an executory 
 promise to do some thing in fuiuro — as, that the defendant kept a 
 shop, and that the prosecutrix might go and live with her at the 
 .said shop until she obtained a situation; whereas the defendant kept 
 no shop ; and the jury find that the prosecutrix parts with her money 
 or goods, relying wholly or in part upon the misrepresentation of 
 fact; this is a sufficient false pretence within the act. R. v. Fry 
 Dears. & B. 449; 27 L. J. {M. C.) 68. So, where the false repre- 
 sentation was that the defendant had bought certain skins, and 
 would sell them to the prosecutor. R. v. West, Dears. & B. 576; 
 27 L. J. (if. C.) 227. And where a married man induced a woman 
 to give him money by representing himself to be unmarried, and by 
 promising that with the money he would furnish a house and return 
 and marry her, he was held indictable for obtaining money by false 
 pretences. R. v. Jennison, L. & C. 157; 31 L. J. {M. C.) 146. It 
 is also to be observed, that a promise to do a thing in futuro may 
 involve a false pretence that the promissor has the power to do that 
 thing, for which false pretence the promissor may be indictable. 
 R. V. Giles, L. & a 502; 34 L. J. {M. C.) 50. 
 
 A false pretence actually made to A. in B.'s hearing, whereby 
 money is obtained from B., may be laid as made to B. R. v. Deai, 
 \ C. & K. 249, And where the indictment alleged the false pretence 
 to have been made to B. and others, and it was proved that B. was 
 one of a firm, and that the false pretence was made to him alone, but 
 with intent to defraud the firm, it was held sufficient, the words, " and 
 others" being rejected as surplusage. R. v. Kealey, 2 Den. 68; 20 
 L. J. {M. C.) 57. The jury may connect together representations 
 made in several distinct conversations (supposing them to be in 
 their nature connectible), and convict the defendant for obtaining 
 money, etc., by means of false pretences made in those several con- 
 versations. R. V. Wellman, Dears. 188; 22 L. J. (M. C.) 118. A 
 false pretence made through an innocent agent is the same as if 
 made by the defendant himself, and may be so charged. R. v. 
 Butcher, Bell, 6; 28 L. J. {M. C.) 14. K. represented to B. that he 
 had a quantity of good tobacco, and induced B. to agree to buy 
 some. P. was with K. at the time, and it was arranged that P. was 
 to deliver the tobacco to B., and that B. was to pay P. for K. P. 
 afterwards delivered to B. two bales purporting to be tobacco, as in 
 pursuance of the contract, and received payment from B. The bales 
 contained little else but rubbish ; K. and P. were parties to the 
 fraud. It was held on these facts that K. was liable to be convicted 
 on an indictment charging him with obtaining money from B. by 
 falsely pretending that he was possessed of a quantity of good 
 tobacco. R. V. Kerrigan, L. t£- C. 383; 33 L. J. (M. C.) 71. _ 
 
 The indictment also must negative the pretences by special aver- 
 ment as in the above precedent ; and where such an averment was 
 omitted, it was holden to be error, and the judgment was reversed. 
 R. V. Perrott, 2 M. <& Sel. 379, 386. Where the false pretence 
 alleged was, that the defendant " then was a captain in her Majesty's 
 fifth regiment," etc., the pretence was held to be well negatived Dy 
 
False Pretences. 479 
 
 an arennent that the defendant was not, " at the time of making such 
 pretence," a captain, etc. Hamilton v. R., 9 Q. B. 271. 
 
 It was also holden, in cases decided on former statutes, that the 
 indictment should state that the money, etc. obtained was the pro- 
 perty of the person whom it was intended to defraud; since other- 
 wise a conviction or acquittal on this indictment could not be pleaded 
 in bar to a subsequent indictment for larceny in respect of the same 
 transaction. Sill v. R., Dears. 132; \ E.&B. 633; 22 L. J. {M. C.) 
 41. But this allegation is expressly declared to be unnecessary by 
 the present statute 24 <fi 25 Vict, c 96, s. 88 (ante, p. 468). It is not 
 necessary to allege that the pretence was made with the intent of 
 obtaining the money, etc.; it is sufficient to show that the pretence 
 was made, that the money, etc. was obtained thereby, with intent to 
 defraud, and that the pretence was false to the knowledge of the 
 defendant. Hamilton v. R., 9 Q. B. 271. If it be a valuable secu- 
 rity that was obtained, the indictment need not, it seems, show it to 
 be still unsatisfied; at all events, it is good after verdict without such 
 averment. Id. 
 
 The offence is completed by the obtaining of the money, &c.; and 
 it is no defence, where the indictment charges the obtaining of money, 
 that the money has been obtained only by way of a loan, and that 
 the defendant intends to repay it ; R. v. Orossley, 2 M. db Rob. 17 ; 
 because the property in money that is lent passes as much in a case 
 of loan as on a sale, there being no expectation that the same money 
 which is leht will be returned. See the judgment of Crompton, J., 
 in R. V. Burgon, Dears. & B. 11. Where, however, a chattel is 
 obtained by way of loan, the property in the chattel does not pass 
 (see the judgment of Orompton, J., supra), and since to constitute an 
 obtaining by false pretences it is equally essential, as in larceny, 
 that there shall be an intention to deprive the owner wholly of his 
 property, if it appears that the defendant had no such intention, but 
 merely intended to obtain the use of the chattel for a limited time, 
 he cannot be convicted of obtaining the chattel by false pretences. 
 R. V. Kilham, L. R., 1 C. C. R. 261; 39 L. J. {M. C.) 109. And 
 therefore where the defendant, by false pretences, obtained from a 
 livery_ stable keeper a horse on hire, rode it himself during the time 
 of hiring, and afterwards returned it to the stables, it was held that 
 he could not be convicted of obtaining the horse by false pretences. 
 Id. See R. v. Boulton, post, p. 481. 
 
 We have seen that the offence is completed by the obtaining of 
 the money ; and therefore where it was transmitted in a letter, 
 posted by the defendant's request in county A., but which reached 
 him in county B., it was held that this was an obtaining of the 
 money in county A., and that the venue was rightly laid there. 
 R. V. Jones, 1 Den. 551; 19 L. J. {M. C.) 162. See R. v. Buttery, 
 oit. i B. & AM. 179. Again, where the defendant, by means of a 
 false pretence contained in a letter written by him in the county of 
 C, received there the money obtained thereby, which money was sent 
 to him by the prosecutor in a registered letter ; the letter containing 
 tliC false pretence being recBived by the prosecutor in the county of 
 ■the borough of C, and the registered letter being posted by him in 
 the county of the borough of C, the venue was held to be well laid 
 in the county of the borough. R. v. Leach, Dears. 642; 25 L.J. 
 {M. C.) 77: see R. v. Cooke, 1 F. & F. 64. 
 
 As to false pretences punishable under the 67th section of the 
 Mutmy Act, 18 <& 19 Vict. c. 11, see R. v. Jusmp, Dears. 619. The 
 
480 False Pretences. 
 
 recent Mutiny Acts, however, contain different provisions from thosp 
 of the 18 & 19 Vict. c. 11. 
 
 Ekidence. 
 
 The obtaining of money by way of a loan by felse pretences 
 although the defendant intends to repay it, is a sufficient obtaining 
 within the statute ; R. v. Orossley, ante, p. 479: B. v. Burgon, ante 
 p. 479; but the mere obtaining of the loan of a chattel by false pre- 
 tences, without any intention to deprive the owner wholly of his 
 property in such chattel, is not an obtaining within the statute. E. 
 v. Kilham, ante, p. 479. 
 
 The prosecutor must prove the pretence, as stated in the indict- 
 ment : any variance in substance between the pretence laid and that 
 proved will be fatal. On the trial of an indictment, charging that 
 the defendant obtained a horse of the prosecutor by falsely pretending 
 that he was the servant of Hardman of S., the evidence was that the 
 defendant at first represented himself as a servant of Hardman of S. 
 but that afterwards learning that the prosecutor had supposed that 
 he had said he was the servant of Harding of B., he adopted that 
 view, and virtually said that he was the servant of Harding, late of 
 B., and now of S. It was proved that the prosecutor parted with his 
 horse in the belief that tlae defendant was the servant of Harding. 
 On these facts it was held that the defendant could not be convicted 
 on the indictment, as the real pretence that operated on the prose- 
 cutor's mind was not alleged therein. S. v. Bulmer, L. d C. 476; 
 33 L. J. (M. C.) 171. Where the pretence laid was, that the de- 
 fendant said " that he had paid a sum of money into the Bank of 
 England," and the proof was, that he said that the money had been 
 paid into the Bank, without saying by whom, the defendant was 
 acquitted for the variance : Lord Ellenborough holding that the asser- 
 tions were different in substance. R. v. Pleslmo, 1 Camp. 494. Set 
 R. V. Douglas, Id. 212. But it is not necessary to prove the whole 
 of the pretence charged; proof of part of the pretence, and that the 
 money was obtained by such part, is sufficient. R. v. Hill, R. di R. 
 190; 2 Russ. 310. It is sufficient if the actual substantial pretence 
 which was the main inducement to part with the money, etc., is 
 alleged in the indictment, and proved, although it may be shown by 
 the evidence that other matters not laid in the indictment in some 
 measure operated as an inducement upon the prosecutor's mind. R, 
 v. Hewgill, Dears. 315. If however two false pretences are laid as 
 together conducing to the fraud, and the jury find a general verdict 
 of guilty, and it afterwards appear that one of them is not a sufficient 
 false pretence within the statute, that will invalidate the indictment 
 altogether on a writ of error. R. v. WickTiam (ante, p. 476). If 
 the false pretence be in writing, it may be proved by secondaiy evi- 
 dence, if the paper be lost before the trial. R. v. Chadwieh, 6 C. (f 
 P. 181. 
 
 He must next prove that the goods, etc., stated in the indictment, 
 or some part of them (for the rule in this respect is the same as in 
 larceny (see ante, p. 314)), were obtained from him by means of the 
 pretences alleged. If the indictment charge the defendant with 
 having obtained, by means of certain false pretences, from J. B., a 
 servant of J. N., the sum of three shillings and sixpence, the monies 
 of J. N., and the evidence be that J. B . in fact paid the three shillings 
 and sixpence out of his own money in the first instance, and was 
 afterwards repaid by J. N.; this would be a variance. R. v. Dmgla», 
 
False Pretences. 481 
 
 1 Camp. 212. But it appearing afterwards, in this case, that J. B. 
 had at the time more money belonging to J. N. in his possession 
 than the sum so paid by him, this was holden to support the aver- 
 ment, although he had no orders from J. N. to pay it. Id. Proof 
 that money was actually paid to the defendant by the wife of A. B. 
 in her husband's absence, but by his authority, in consequence of 
 false pretences made by the defendant to A. B., is sufficient to 
 support an indictment charging the defendant with obtaining 
 money by false pretences from A. B. R. v. Moseley, L. c6 C. 92; 
 31 L. J. (M. C.) 24. The words in the statute are " any money, 
 chattel or valuable security." A railway ticket, which enabled 
 the defendant to travel free by the railway from B. to H., and was 
 to. be given back to the railway company at H., was held to be a 
 "chattel" within this section. R. v. Boulton, 1 Dm. 608; 2 C. & K. 
 917, 919; 19 L. J. {M. C.) 67. This case seems to conflict with U. 
 V. KilAam (ante, p. 479), as the defendant did not intend, nor was it 
 necessary for his purpose to intend, wholly to deprive the railway 
 company of their property in the ticket; but it is distinguishable 
 from E. V. Kilham in this respect, that the defendant, by using the 
 ticket for the purpose of travelling on the railway, entirely converted 
 it to his own use, for the only purpose for which it was capable of 
 being applied. See the judgment in R. v. Kilham, uhi supra. A 
 dog, not being the subject of larceny at common law, is not a chattel 
 within this act. R. v. Robinson, Bell, 34; 28 L. J. {M. C.) 58. 
 Where a defendant was indicted for obtaining, under false pretences, 
 a certain order for the payment of two pounds, and the order was 
 a cheque drawn by A. B. upon his bankers, payable to D. F. J., but 
 not to order or bearer, it was holden that this required a stamp, and, 
 not being stamped, was not a " valuable security." R. v. Yates, 1 
 Mood. C. C. 170. The defendant, who was the secretary to a burial 
 society, had, by the false pretence of a death, obtained from the 
 president of the society an order on the treasurer in the following 
 form:— "B. United Burial Society, No. 23, Bolton, Sept. 1, 1853. 
 Mr. A. E., treasurer: Please to pay the bearer 11. 10s., G-reenhalgh, 
 and charge the same to the above society, R. L., president:" this 
 was held to be a valuable security within the repealed act, 1 <& % G. 
 4, c. 29, s. 53, as explained by s. 6 of that act (see now 24 <& 25 Vict. 
 e. 96, s. 1, ante, p. 302). R. v. Greenhalgh, Dears. 267. Where, in 
 order to induce his bankers to pay his cheques, a defendant drew a 
 bill on a, person on whom he had no right to draw, and which had 
 no chance of being paid, in consequence of which the bankers paid 
 money for him, it was holden not to be within the act, because he 
 only obtained credit, not any specific sum on the bill. R. v. Wavell, 
 1 Mood, a a 224. See R. v. Garrett, Dears. 233; 23 L. J. {M. C.) 20. 
 Where the prisoner was charged with obtaining a filly by the false 
 pretence that he was a gentleman's servant, and had lived at Bream, 
 and had bought twenty horses at Breabi fair; and it appeared that 
 he bought the filly of the prosecutor for IIZ., making him this state- 
 ment, which was false, and telling him also that he would come down 
 to the Cross Keys and pay him: and the prosecutor stated that he 
 parted with the filly because he expected the prisoner would come to 
 the Cross Keys and pay him, and not because he believed that the 
 prisoner was a gentleman's servant, etc.; the prisoner was held to 
 be entitled to an acquittal. R. v. Dale, 7 C.'<§ P. 352. So, where 
 the defendant offered a chain in pledge to a pawnbroker, which he 
 w. Y 
 
482 False Pretences. 
 
 falsely stated to be silver, but the pawnbroker stated that he ad- 
 vanced money on it, not in consequence of the defendant's statement 
 but in reliance on its withstanding a test which he himself applied 
 to it, it was held that the defendant could not be convicted of obtain- 
 ing the money by means of the false pretence, but that he was pro- 
 perly convicted of attempting to obtain money by false pretences 
 R. V. Soebuch, Dears. c6 B. 24; 25 L. J. {M. C.) 101. So also, where- 
 ever the prosecutor himself knows the falsehood of the pretence, but 
 parts with his money or goods notwithstanding, the defendant cannot 
 be convicted of oStamimg' by false pretences; R. v. Mills, Dears. A B. 
 205 ; 26 L. J. (M. C.) 79 ; although he may be convicted of attempt- 
 ing to obtain by false pretences. See R. v. Roebuck, siipra. But 
 the fact of the prosecutor having the means of such knowledge will 
 not of itself excuse the defendant from being convicted of obtaining 
 by false pretences: for example, where the defendant falsely repre. 
 sented a IZ. Irish bank-note to be a 5Z. note, and thereby obtained 
 the foil value of a 5Z. note; though the prosecutor could read, and 
 the note on the face of it furnished obvious means of detecting the 
 fraud, the defendant was held to be properly convicted. R. v. J^siop, 
 Dears. & B. 442; 27 L. J. {M. C.) 70. If the defendant obtain the 
 money by a false pretence, knowing it to be false, it is no answer to 
 show that the party from whom he obtained it laid a plan to entrap 
 him into the commission of the offence. R. v. Ady, 1 Cdl; P. 140, 
 per Patteson, J. But see R. v. Mills, supra, in which R. v. Ady was 
 cited. And where the defendant was indicted for conspiring with 
 others to obtain money by false pretences, it was held to be no bar 
 to his conviction that the prosecutor had the intention of cheating 
 the defendant if he could. R. v. Hudson, Bell, 263; 29 L. J. (M. C.) 
 145. The defendant, by falsely pretending that he was a naval 
 officer, induced the prosecutrix to enter into a contract with him to 
 board and lodge him at a guinea a week, under which contract he 
 was lodged and supplied with various articles of food. It was 
 held that a conviction for obtaining the articles of food by false 
 pretences could not be supported, for that the obtaining of the 
 food was too remotely the result of the false pretence. E. v. 
 Gardmr, Dears. <& B. AO; 25 L. J. {M. C) 100: ace. R. v. Brym, 
 2 F. d> F. 567. See, however, the comments on R. v. Gairdmer and 
 R. V. Bryan,, in R. v. Martm, L. R., 1 C. C. R. 56; 36 L. J. (M. C.) 
 20. In that case it was held, that in order to support an indict- 
 ment for obtaining a chattel by false pretences, it is not necessary 
 that the chattel should hav« been in existence when the false pre- 
 tence was made, but that the obtaining is within the statute, if the 
 pretence is a continuing one, so that the chattel is made and de- 
 livered in pursuance of the pretence, and that the question whether 
 the pretence is or is not a continuing one, is one of fact for the juiy. 
 Where the defendant, by false and fraudulent representations as to 
 the value and profits of his business, induced the prosecutor to enter 
 into partnership with him, and to advance 500Z. as part of the capital 
 of the concern, and the prosecutor, after such advance, recognized 
 and acted in the partnership ; it was held that this was not obtain- 
 ing money by false pretences within the meaning of the statute, for 
 the prosecutor, as partner, continued to be interested in the money. 
 R. V. Watsoa, Dears. & B. 348; 27 L. J. (M. C.) 18. Parol evidence 
 may be given of the false pretences laid in the indictment, though 
 a deed between the parties, stating a different consideration for 
 parting with the money, be put in evidence for the prosecution; 
 
Ji'alse Pretences. 483 
 
 sueh deed having been made for the purpose of the fraud. R. v. 
 Adamm, 2 Mood. C. C. 286; I C. & K. 192. 
 
 As to the intent to defraud, it jnay be implied sufficiently from the 
 facts of the case. Where A. owed B. a debt, of which he could not 
 get payment, and C, B.'s servant, went .to A.'s wife, and obtained 
 from her two sacks of malt, saying that B. had bought them of A., 
 and C. knew this to be false, but took the malt to B., his masterj to 
 enable him to pay himself the debt, it was holden that C. could not 
 be convicted of obtaining the malt by false pretences. B. v. Wil- 
 liams, 7 C. (& P. 364. The fact that the defendant at the time he 
 obtained goods by false pretences intended to pay for them when it 
 should be in his power to do so affords no dfefence to an indictment 
 for obtaining such goods by false pretences. B. v. Naylor, L. B., 1 
 C. C. BA; 35 L. J. {M. C.) 61. Formerly, if the evidence proved 
 not only an intent to cheat or defraud, but also established a pre-exist.- 
 ing mdmus fwandi, and a constructive taking, such as to constitute 
 larceny, the misdemeanor being merged in the felony, the defendant 
 was entitled to his acquittal. B. v. Pear, 2 East, P. C. 685. But 
 now, by stat. 24 & 25 Vict, c, 96, s. 88, ante, p. 468, the defendant may 
 be convicted, although it appear at the trial that the offence amounts 
 to larceny, and not merely to obtaining money, etc,, by false pre- 
 tences. The safer course, therefore, to adopt, where it is doubtful 
 whether the offence is larceny or obtaining goods under a false pre- 
 tence, is to indict for the misdemeanor ; in which case, if the offence 
 should turn out to be larceny, the prisoner may nevertheless be .con- 
 victed by force of the statute. These two offences are sometimes 
 difficult to be distinguished, in cases where there has been a construc- 
 tive taking (see cmte,0).331,.332) ; but .the difficulties .arising from this 
 circumstance appear to be obviated by this provision of the statute. 
 It is not, however, sufficient under this provision to prove any larceny. 
 The true meaning of the provision is, that if the misdemeanor is 
 proved as it is laid in the indictment, the defendant is not to be 
 acquitted of the misdemeanor simply because the case amounts to a 
 larceny B. v. Bulmer, L. & C. 476; 33 L. J. (if. C.) 171 ; 9 Cox, 
 492. Where the indictment averred an obtaining of a particular 
 sum of money, with intent to defraud the prosecutor of the same, and 
 it appeared that the intent was to defraud him of a part only ,of that 
 sum, the rest being reaUy due, it was held that the prisoner might 
 nevertheless be convicted. B. v. Leonard, 1 Den. 303 ; 2 (7. <£ K. 
 514. It is only necessary to allege in the indictment, and to prove, 
 an intent to defraud generally, without alleging or proving an intent 
 to defraud any particular person. 24 & 25 Viat. c. 96, s. 88, ante, 
 p. 468. On a charge of obtaining money by false pretences from 
 A., evidence of a subsequent obtaining of money by the defendant 
 from B., by the same false pretences, is not admissible. B. v. Bolt, 
 BeU,280; BOL.J.{M.C.)n. 
 
 Lastly, it must be proved that the pretences made use of were false 
 in fact : or, in other words, the averments negativing the pretences 
 must be proved. But it does not seem to be essential that they 
 should all be proved ; if so many of them as show the falsity of the 
 ■substance of the pretence be proved, it should seem to be sufficient. 
 As, in the present instance, if it were to appear in evidence that the 
 defendant was really the servant of K. 0., yet if it were also to appear 
 that he had no directions from him to get the cloth in question, and 
 that, after he had obtained it, he converted it to his own use, it would 
 
 y2 
 
484 False Pretences. 
 
 be sufficient. "Where the defendants were charged with obtaininj 
 - money by colour and pretence of their being collectors of the prc^ 
 perty-tai, and it appeared in evidence that they had in fact been 
 appointed collectors by the commissioners, though in an infonnal 
 manner ; this was holden not to be a false pretence within the 
 meaning of the act. B. v. Dohson, 7 East, 218. Upon an indict- 
 ment for obtaining monejr by a false pretence made by the defendant 
 that he was an attorney, it is not necessary to prove the negative in 
 any other way than by the production of the Law List in which the 
 defendant's name does not appear as an attorney, as 23 <& 24 Vict. 
 c. 127, s. 22, makes the. Law List evidence, and imposes the burthen 
 of Jiroving its inaccuracy upon the defendant. R. v. Wenkrni 10 
 Cox, 222. ' 
 
 As every attempt to commit a crime is itself an indictable misde 
 meaner at common law (see ante, p. 2), wherever the intention to 
 obtain money or goods by false pretences is manifested by any overt 
 act, the party may be indicted for the attempt to commit the statutable 
 misdemeanor. See S. v. Roebuck, Dears. <& B. 24 ; 25 L. J. (M. C.) 
 101, amte, p. 482. But the nature of the attempt must be set forth in 
 the indictment with reasonable certainty. And where the indictment 
 stated that the defendant " did unlawfully attempt and endeavour 
 fraudulently, falsely, and unlawfully to obtain from an insurance 
 company a large sum of money, to wit, the sum of 221. lOs., with 
 intent thereby then and there to cheat and defraud the said com- 
 pany," etc. ; this was held insufficient. R. v. Marsh, 1 Den. 606 ; 19 
 L. J. {M. C.) 12. 
 
 The defendant had contracted with the guardians of a poor-law 
 union to deliver loaves of a specified weight to any poor person 
 bringing a ticket from the relieving officer. The tickets were to be 
 returned by the defendant at the end of each week, together with a 
 statement of the number of tickets sent back, whereupon he would 
 be credited for the amount, and the money would be paid at the time 
 stipulated in the contract. The defendant delivered to certain poor 
 people who brought tickets loaves of less than the specified weight, 
 returned the tickets with a note of the number sent, and obtained 
 credit in account for the loaves so delivered, but before the time for 
 payment had arrived the fraud was discovered. It was held that the 
 mere delivery of a less quantity of bread than that contracted forwai 
 a mere private fraud, no false weights or tokens having been nsed, 
 and therefore not an indictable offence; but that the defendant wis 
 properly convicted of attempting to obtain money by false pretences ; 
 for although he had only obtained credit in account, and could not, 
 therefore, have been convicted of the offence of actually obtaining 
 money by false pretences, yet he had done all that was depending on 
 himself towards the payment of the money, and was therefore guilty 
 of the attempt : and that this was a case within the 7 cfe 8 G. 4, e. 29, 
 s. 53, because it was an attempt to obtain money by a false and 
 fraudulent representation of an antecedent fact ; it was not a mere 
 sale of goods by a false pretence of their weight, i?. v. " 
 Dears. 615; 24 L. J. (M. C.) 158. 
 
Cheating^ 485 
 
 Indictment for obtaining the Acceptance to a Bill of Exchcmge hy 
 False Pretences. 
 
 Commencement as ante, p. 313] — unlawfully, knowingly, and de- 
 signedly did falsely pretend to one J. N., that [state the false pretence 
 used, as in the precedent, ante, p. 469], by means of which said false 
 pretence the said J. S. did then unlawfully and fraudulently induce 
 the said J. N. to accept a certain bill of exchange, that is to say, a 
 bill of exchange for one hundred pounds, with intent thereby then to 
 defraud and injure the said J. N. ; whereas in truth and in fact [here 
 negative the false pretences, as ante, p. 469] ; against the form [as 
 antcp.SiT]. 
 
 Misdemeanor: penal servitude for five [27 <& 28 Vict. c. 47, s. 2, 
 ante, p. 173] years, or imprisonment, with or without hard labour, and 
 with or without solitary confinememt {such confinement not exceeding one 
 month at amy one time, nor three months in any one year, 24 & 25 Vict. 
 c. 96, s. 119, ante, p. 308) not exceeding two years— 2i & 25 Vict. c. 96, 
 «. 90, ante, p. 469. As to fining the offender cmd requiring him to 
 enter into recognizances and fimd sureties for keeping the peace and 
 leing of good behaviow, Id. s. 117, ante, p. 307. 
 
 The statute of which this section is an amendment (20 <& 21 Vict, 
 c. 47) was no doubt introduced in consequence of the decision in 
 R. V. Danger, Dears, dh B. 307 ; 26 L. J. (M. C.) 185, in which it 
 was held that the obtaining by false pretences the signature of the 
 prosecutor to an acceptance of a bill of exchange, produced to him 
 for that purpose by the defendant, with intent to defraud, was not 
 indictable under the repealed act 7 <fc 8 G. 4, c. 29, s. 53. The evi- 
 dence will be governed by the like rules as would apply to an indict- 
 ment under 24 & 25 Vict. c. 96, s. 88 {see ante, p. 480, et seq.). The 
 prosecutor must prove the pretences as stated in the indictment; 
 that by means of them or some of them he was induced to accept 
 the bill of exchange ; their falsehood ; and the intent to defraud, 
 which of course will generally be implied from' the circumstances of 
 the case. 
 
 Indictment for selling by False Scales.. 
 Middlesex, to wit : — The jurors for our lady the Queen upon their 
 oath present, that J. S., on the first day of August, in the year of our 
 
 Lord , and from thence until the taking of this inquisition, did use 
 
 and exercise the trade and business of a [grocer'] , and during that 
 time did deal in the buying and selling by weight of [teas, sugars, 
 spices] and of divers other goods, wares, and merchandises ; and that 
 the said J. S., being a person of a wicked and depraved mind, and 
 contriving and fraudulently intending to cheat and defraud the sub- 
 jects of our said lady the Queen, whilst he was and continued to be a 
 [grocer] as aforesaid, to wit, on the said first day of August,, in the 
 year aforesaid, and on divers other days and times between that 
 day and the day of the taking of this inquisition, knowingly, wil- 
 fully, falsely, fraudulently, and deceitfully did keep in a certain shop 
 wherein he the said J. S. did so as aforesaid carry on his said trade, 
 a certain false pair of scales, for the weighing of goods, wares and 
 merchandises by him sold in the way of his said trade, and which 
 
486 Cheating. 
 
 said scales were then, by artful and deceitful means and contrivance 
 so made and constructed as to cause the goods, wares, and mer- 
 chandises weighed and sold thereby to appear of greater weight 
 to wit, of a greater weight by two ounces in every quantity of 
 goods weighed thereby, than the real and true weight thereof: and 
 that the said J. S., well knowing the said scales to be false as afore- 
 said, did then, to wit, on the several days and times aforesaid 
 wilfully, falsely, fraudulently and deceitfully sell and utter to divers' 
 subjects of our lady the Queen, divers goods, wares and merchandises 
 in the way of his said trade, weighed in and sold by the said false 
 scales, and which goods, wares, and merchandises were very much 
 deficient and short of the weight at and for which the same were so 
 sold by the said J. S. as aforesaid, to wit, by the weight of two 
 ounces : to the great damage and deceit of her Majesty's said sulj- 
 jects, to the evil example of all others in the like case offending, and 
 against the peace of our lady the Queen, her crown and dignity. If 
 you can prove am) particular instance of a sale by those scales to a 
 particular person, you may add a count upon it; or, if you think 
 your evidence not sufficiently specific to maintain the covnt above 
 given, you may add a count or counts in a more general form. See 
 6 Went 389. Stating the sale to have been " to divers suljects to the 
 Jurors unknown " has been holden sufficient. II v Gibhs, 1 Str 497. 
 An indictment for selling by false weights or measures may readih/ be 
 framed from the above precedent 
 
 For other frauds at common law, see 2 Suss. C. i^ M ,by Greaves, 
 604—617, 4th ed. 
 
 This is a misdemeanor at common law, punishable by fine or im- 
 prisonment {with or without hard labour for the whole or any part of 
 such imprisonment, 14 Sf 15 Vict. e. 100, s. 29), or both. 
 
 Evidence. 
 
 Prove that the defendant carried on the business mentioned in the 
 indictment ; that the false scales described in the indictment were 
 found in his shop or warehouse, etc. ; and that he has used them in 
 weighing goods sold by him to his customers. If yon have proof 
 that the scales were used by his shopman or servants, it will be suffi- 
 cient, as it will be presumed that they were used by his orders. 
 
 If a man, in the course of his trade or business publicly carried on, 
 put a false mark or token upon a spurious article, so as to pass it off 
 as a genuine one, and the article is sold and money obtained by 
 means of the false mark or token, he is indictable for a cheat at 
 common law. R. v. Class, Dears. & B. 460; 27 L.J. {M. C)M. 
 See Worrell's case, Trem. 106 : Farmer's case. Id. 109. The forgery 
 of a trade-mark is now also punishable as a misdemeanor under the 
 25 & 26 Vict. c. 88 (The Merchandise Marks Act, 1862). And 
 the forgery of initials and frauds in the sale of paintings, etc., are 
 punishable in a summary way under 25 & 26 Vict. c. 68. As to 
 frauds in the stamping and sale of chain cables and anchors, see 
 27 d: 28 Vict. c. 27, s. 12. 
 
 Every person who falsely pretends to be an inspector or sub- 
 inspector of factories shall be guilty of a misdemeanor, and be liable 
 to be imprisoned for any period not exceeding three months, with 
 or without hard labour. 30 & 31 Vict. c. 103, s. 11 ; c. 146, s. 20. 
 
 Any registrar who shall wilfully make or cause to be made any 
 falsification in any matter relating to the registers of pharmaceutical 
 
Burglary, etc. 487 
 
 chemists and chemists and druggists, and any person who shall 
 wilfully procure or attempt to procure himself to be registered under 
 the Pharmacy Act (16 & 16 Vict. c. 56), or under 31 & 32 Vict. 
 c. 121, by making, or producing, or causing to be made or produced 
 any false or fraudulent representation or declaration, either verbally 
 or in writing, and any person aiding or assisting him therein, shall 
 be deemed guilty of a misdemeanor, and shall, on conviction thereof, 
 be sentenced to be imprisoned for any term not exceeding twelve 
 months. 31 Ǥ 32 Vict. c. 121, 1. 14. 
 
 Sect. 4. 
 bukglaky, etc. 
 
 Statutes. 
 
 24 & 25 Vict. c. 96, s. 1 —Definition of Night.] — For the purposes of 
 this act the night shall be deemed to commence at nine of the clock 
 in the evening of each day, and to conclude at six of the clock in the 
 morning of the next succeeding day. 
 
 Sect. 61.] — Whosoever shall enter the dwelling-house of another 
 with intent to commit any felony therein, or being in such dwelling- 
 house shall commit any felony therein, and shall in either case break 
 out of the said dwelling-house in the night, shall be deemed guilty 
 of biu-glary. 
 
 Sect. 52— Punishment of Burglary.'] — Whosoever shall be con- 
 victed of the crime of burglary shall be liable, at the discretion of 
 the court, to be kept in penal servitude for life, or for any term 
 not less than three years [now five years, 27 & 28 Vict. c. 47, s. 2, 
 anU, p. 173], or to be imprisoned for any term not exceeding two 
 years, with or without hard labour, and with or without solitary 
 confinement. 
 
 Sect. 63 — What Buildings part of DwelUmg-house.j — Ante, p. 397. 
 
 Sect, bi— Entering Dwelling-house in the Night with intent to com- 
 mit Felony.'j — Whosoever shall enter any dwelling-house in the 
 night, with intent to commit any felony therein, shall be guilty of 
 felony, and being convicted thereof shall be liable, at the discretion 
 of the court, to be kept in penal servitude for any term not ex- 
 ceeding seven years, and not less than three years \mw five years, 
 27 <6 28 Viet. c. 47, s. 2, ante, p. 173], or to be imprisoned for any 
 term not exceeding two years, with or without hard labour, and 
 with or without solitary confinement. 
 
 Sect. 58— Being foimd hy Night armed with intent to break and 
 enter Dwelling-house, ete.] -^ Whosoever shall be found by night 
 armed with any dangerous or offensive weapon or instrument 
 whatsoever, with intent to break or enter into any dwelling-house, 
 or other building whatsoever, and to commit any felony therein, or 
 shall be found by night having in his possession without lawful 
 excuse (the proof of which excuse shall lie on such person) any 
 
488 Burglary, etc. 
 
 picklock key, crow, jack, bit, or other implement of house-break- 
 ing, or shall be found by night having his face blackened, or other- 
 wise disguised, with intent to commit any felony, or shall be 
 found by night in any dwelling-house or other building whatsoever 
 with intent to commit any felony therein, shall be guilty of a mis- 
 demeanor, and being convicted thereof shall be liable, at the discre- 
 tion of the court, to be kept in penal servitude for the term of three 
 years [now Jive years, 27 dk 28 Vict. c. 47, s. 2, ante, p. 173], or to be 
 imprisoned for any term not exceeding two years, with or without 
 hard labour. 
 
 Sect. 59 — The like, after previous conviction for Felom/.] — Who- 
 soever shall be convicted of any such misdemeanor as in the last 
 preceding section mentioned, committed after a previous conviction, 
 either for felony or such misdemeanor, shall, on such subsequent 
 conviction, be liable, at the discretion of the court, to be kept in 
 penal servitude for any term not exceeding ten years and not less 
 than three years [now seven years, where the previous conviction waa 
 for felony, and five years, where the previous conviction was for misde- 
 meanor, 27 (& 28 Vict. c. 47, s. 2, ante, p. 173], or to be imprisoned for 
 any term not exceeding two years, with or without hard labour. 
 
 Sect. 104 — Persons loitering at Night and suspected of Felony against 
 this Act may be apprehended.'] — Any constable or peace officer may 
 take into custody, without warrant, any person whom he shall find 
 lying or loitering in any highway, yard, or other place, during tlie 
 night, and whom he shall have good cause to suspect of having com- 
 mitted, or being about to commit, any felony against this act, and 
 shall take such person, as soon as reasonably may be, before a justice 
 of the peace, to be dealt with according to law. 
 
 14 <& 15 Vict. c. 19, g. 11 — Apprehension of Offenders.'] — ^Whereas 
 doubts have been entertained as to the authority to apprehend 
 persons found committing indictable offences in the night; for 
 remedy thereof be it enacted, that it shall be lawful for any person 
 whatsoever to apprehend any person who shall be found committing 
 any indictable offence in the night, and to convey him or deliver him 
 to some constable or other peace officer, in order to his being con- 
 veyed, as soon as conveniently may be, before a justice of the peace, 
 to be dealt with according to law. 
 
 Sect. 12 — Assaults in course of Apprehension.] — If any person liable 
 to be apprehended under the provision of this act shall assault or 
 offer any violence to any person by law authorized to apprehend or 
 detain him, or to any person acting in his aid and assistance, every 
 such offender shall be guilty of a misdemeanor, and being convicted 
 thereof shall be liable to be imprisoned, with or without hard labour, 
 for any term not exceeding three years. 
 
 Sect. 13 — Definition of Night.] — The time at which the night shall 
 commence and conclude in any offence against the provisions of this 
 act shall be the same as in cases of burglary. 
 
 Indictment for Bwrgla/ry, and Larceny to the Value of £5. 
 Surrey, to wit : — The jurors for our lady the Queen upon their oath 
 present, that J. S., on the first day of June, in the year of our Lord 
 
Burglary, etc. 489 
 
 , about the hour of eleven of the clock in the night of the same 
 
 day, the dwelling-house of J. N., situate at the parish of B., in the 
 county of S., feloniously and burglariously did break and enter, with 
 intent the goods and chattels of one K. 0., in the said dwelling- 
 house then being, feloniously and burglariously to steal, take, and 
 carry away* ; and then in the said dwelling-house, one silver sugar- 
 basin of the value of three pounds, six silver table-spoons of the 
 value of three pounds, and twelve silver tea-spoons of the value of 
 two pounds, of the goods and chattels of the said K. O., in the said 
 dwelling-house then being found, feloniously and burglariously did 
 steal, take, and carry away ; against the form [as ante, p. 347] . 
 
 If there be any doubt as to the ownership of the house or goods, you 
 may add other counts accordingly. It seems, however, that no owner- 
 ship of the q,oodL& need be stated. R.y Clarke, 1 C. Sj' K. A21. Also, 
 as burglary is a breaking and entering of a dwelling-house, with 
 intent to commit a felony (and whether a felony at common law or by 
 statute is immaterial, 1 Hawk. c. 38, s. 88), ;/ there be any doubt of 
 the intent with which the offence was committed, it may be varied in 
 different counts accordingly. The intent to steal, as well as the steal- 
 ing, ought to be charged ; 1 Hale, P. C. 5o9 ; but where an indict- 
 ment for burglariously breaking and entering a dwelling-house, and 
 then and there stealing goods therein, omitted to state the intent, it 
 was holden that the defendant might be convicted of the burglary if 
 the larceny were proved, but not otherwise. R. v. Furnival, R. Sf S.^ 
 445. An indictment under s. 54 will be in the same form, omitting 
 tfte words "break and,'' and the coords " and burglariously." 
 
 Felony: penal servitude for life or for not less than five [27 Sf 28 
 Yiet. e. 47, s. 2, ante, p. 173] years, or imprisonment not exceeding 
 two years, with or without hard labour, and with or without solitary 
 confinement (such confinement not exceeding one month at any one 
 time, nor three months in any one year, 24 Sf 25 Vict. c. 96, s. 110, 
 ante, p. 308).— 24 ^ 25 Vict. c. 96, s. 52. As to requiring the 
 offender to enter mto recognizances and find sureties for keeping the 
 peace. Id. s. 117, ante, p. 307. As to the punishment for the larceny, 
 see s. 60, ante, p. 398. 
 
 This offence is not triable at any quarter sessions. 5'^ 6 Vict. c. 38, 
 s. 1 (ante, p. 104). 
 
 Evidence. 
 
 Burglary, at common law, is the hreahing and entering of the 
 dwelling-house of another in the night-time, with intent to commit a 
 felony therein; 4 Bl. Com. 224; 3 Inst. 63; and by stat. 24 <& 25 
 Vict. c. 96, s. 51, the breaking out of the dwelling-house of another 
 in the night-time, having entered it with intent to commit felony, or 
 having committed a felony while in it, is also declared to be a 
 burglary. In order to maintain the above indictment, the prosecutor 
 must prove that the defendant broke and entered the dwelling- 
 house of J. N., in the night-time, with an intent to steal the goods 
 of K. 0. : and whether he succeed or fail in this, he may proceed 
 to prove a larceny of the goods of K. 0. in the dwelling-house of 
 J. N. to the value of 52., in the manner directed ante, p. 402 ; and if 
 he succeed in proving the larceny, but fail in proving it to have 
 been committed in the dwelling-house of J. N., or the goods to 
 have been of the requisite value, the defendant may be convicted of 
 the simple larceny. 
 
 y5 
 
490 Burglary, etc. 
 
 Having made.these few general observations, we shall now proceed 
 to state the evidence in bui-glary more particularly. 
 
 About the hour of Eleven in the Night.'] — Before the stat. 7 TF. 4 
 d 1 Vict. c. 86, s. 4 (re-enacted in the 24 tfe 25 Vict. c. 96, «. 1), 
 which first declared that, for the purpose of burglary, the night 
 should be considered to commence at 9 P.M., and to conclude at C 
 A.M. of the next day, many nice questions arose as to what fell within 
 the meaning of the night-time; and it may stiU be worth while to 
 refer shortly to the authorities on the subject. With reference to 
 this subject, the day was to be divided into three parts ; daylight, 
 twilight, and night. If the breaking and entering were in the night, 
 it was burglary ; if in daylight, it was not. If it were committed 
 during twUight, then, if there were not daylight or crepuseitlum 
 enough, begun or left, to discern a man's face withal, it was a bur- 
 glary ; otherwise not. 3 Inst. 63 ; 1 Sale, 560 ; 1 Eawh. c. 31, s. 2 ; 
 4 Bl. Com. 224. But this did not extend to moonlight ; for then 
 many midnight burglaries would go unpunished. 4 Bl. Com. 224; 
 1 Hale, 551. 
 
 The breaking and entering must both be committed in the night- 
 time ; if the breaking be in the day, and the entering in the nigk, or 
 the breaking in the night, and entering in the day, it is no burglary. 
 1 Hale, 551. But the breaking may be on one night, and the entry 
 on another, 1 Male, 551, provided the breaking be with intent to 
 enter, and the entry with intent to commit a felony. R. v. Smith, 
 R. & R. 417. &ee R. v. Jordan, 1 C.& P. 432. 
 
 The Dwelling-haase of J. N^ — To prove this allegation, the pro- 
 secutor must prove that the defendant broke and entered the dwell- 
 ing-house of J. N., in which he was in the habit of residing; 3 /««(. 
 64 ; or some building between which and the dwelling-house there 
 was a communication, either immediate, or by means of a covered 
 and enclosed passage leading from the one to the other. 24 (fc 25 
 Vict. c. 96, s. 63 {ante, p. 397). And evidence of a breaking and 
 entering of such a building will sustain an indictment charging a 
 breaking and entry of the dwelling-house. R. v. Oarland, 1 LeaA, 
 144; 2 iJasi, P. C. 493, 512. 
 
 Every permanent building, in which the renter or owner and his 
 family dwell and lie, is deemed a dwelling-house, and burglary may 
 be committed in it. Even a set of chambers in an inn of court or 
 college is deemed a distinct dwelling-house for this purpose. 1 Eak, 
 556; 3 Inst. 65: see Monks v. Lhjkes, 4 M. <& W. 665: Fmn v. 
 Grafton, 2 Bing. N. C. 617 ; 2 Scott, 56. And it will be sufficient 
 if any part of his family reside in the house. Thus, where a servant 
 boy of the prosecutor always slept over his brewhouse, which was 
 separated from his dwelling-house by a public passage, but occupied 
 therewith, it was holden, upon an indictment for burglary, that the 
 brewhouse was the dwelling-house of the prosecutor, although, being 
 separated by the passage, it could not be deemed to be part of the 
 house in which he himself actually dwelt. R. v. Westwood, B. & R- 
 495. So where, upon an indictment for burglary in a shop, it ap- 
 peared that the prosecutor had left his house without an intention of 
 returning, and had let some of the rooms to lodgers, but continued 
 his business there, and his apprentice and foreman and the foreman's 
 wife, who was also his servant, employed in keeping the apartments 
 clean, dwelt there, but received weekly wages, it was holden to be 
 
Bwrglary, etc. 491 
 
 the dwelling-house of the prosecutor. R.r.Gihhons,R.&RAi% And 
 where a counting-house, over which there were two rooms communi- 
 cating by a trap-door, which was never used, was broken open, and 
 it appeared that the prosecutor's cooper and his family lived in the 
 two rooms, upon a contract that they should have the rooms to live in 
 and firmg, and weekly wages, it was holden that the counting-house' 
 was the dwelling-house of the prosecutor. R. v. Stoch, R. & R. 185. 
 The mere tempoi-ary absence of the owner and his family will not de- 
 prive the house of this protection the law gives it; as, for instance, if 
 a man have a town and country house, in which he resides alternately^ 
 and whilst he and his family are residing for the season in the country- 
 house, the town-house is broken and entered ; 1 Hale, 566 ; or if a 
 man lock up his house, and go a journey, and, during his absence, it 
 be broken and entered ; R. v. Mwrray, 2 East, P. C. 496 ; Fast. 77, 
 cit. ; or if a barrister have a set of chambers, in which he resides 
 during the term only, and during the vacation they be broken and 
 entered ; 1 Hale, 556 ; in these and the like cases the houses and set 
 of chambers respectively, even although no person actually'resided in 
 them at the time, must be deemed dwelling-houses, and the breaking 
 and entering of them burglary ; provided it appear that the owners, 
 when they left them, had an intention to return to them.. 1 Hale, 
 622, 556 ; Fast. 77 ; R. v. Nuthrown, Fast. 76. But burglary cannot 
 be committed in a tent or booth in a market or fair, even although 
 the owner lodge in it ; 1 Hawk. e. 38, o. 35 ; 1 Hale, hbl ; because it 
 is a temporary, not a permanent edifice. But if it be a: permanent 
 building, though used only for the pui-poses of a fair, it is a dwelling- 
 house. R. v. Smith, \ M.& Rob. 256. Breaking open a house in which 
 no man resides or is in the habit of residing, is no burglary, even 
 though the owner use it for his meals and the purposes of his-business ; 
 for it is not a dwelling-house. R.v.Marti7i,R.<&R.10S. If a porter lie 
 in a warehouse for the purpose of protecting goods, R. v. Smith, 2 East, 
 P. C. 497, or a servant lie in a barn in order to watch thieves, R. v. 
 Brown, 2 East, P. C. 601, this does not make the warehouse or barn a 
 dwelling-house, in which burglary can be committed. So, where the 
 landlord of a dwelling-house, after the tenant had quitted it, put a 
 servant into it, to sleep there at night, until he should relet it to 
 another tenant, but had no intention to reside in it himself: the 
 judges held that it could not be deemed the dwelling-house of the 
 landlord. R. \. Davis, 2 Leach, 876. And where the prosecutor left 
 his house without an intention of returning to live in it, but retained 
 it as a workshop and warehouse, and two women employed in his 
 business, not as domestic servants, slept in the house merely for the 
 purpose of taking care of it ; but did not take their meals there, or 
 use the house for any other purpose, it was holden not to be the 
 dwelling-house of the prosecutor. R. v. Flannagan, R. & R. 187. 
 So, where the tenant had put all his goods and furniture into the 
 house, preparatory to his removing to it with his family, but neither 
 he nor any of his family had as yet slept in it : it was holden not to be 
 a dwelling-house in which burglary can be committed. R. v. Hallard, 
 2East,P. 0.498: R. v. Thompson, Id. ; 2Leach, 771. And the same 
 has been ruled, where, under such circumstances, the tenant had put 
 a person (not being one of the family) into the house, for the pro- 
 tection of the goods and furniture in it, until it should be ready for 
 his residence. R. v. Harris, 2 Leach, 701 : R. v. Fuller, 2 East, 
 P. a 498 ; 1 Leach, 187. See R. v. Jones, 2 East, P. C. 499 : R. v. 
 Fkmnagan, R. d; R. 187. 
 
492 Burglary, etc. 
 
 A dwelling-house maybe divided so as to form two or more dwell- 
 ing houses (within the meaning of the word in the deiinition of bur- 
 glary), by letting a part of it to a tenant ; provided there be no 
 internal communication between the part so let and the remainder of 
 the dwelling-house. Upon an indictment for burglary, it appeared 
 that the house in which the burglary was alleged to have been com- 
 mitted formed the centre of a building, having two wings ; in one of 
 which A. lived, and the other consisted of the dwelling-houses of B 
 and C. respectively ; the centre consisted of three manufactorieB, in 
 one of which A., B., D. and other persons, were jointly concerned, 
 and of the remaining two D. was the sole proprietor, C. was merely 
 in the employment of D. There was no internal communication 
 between the centre building and the houses of A. and B., nor between 
 it and the house of C, except a window in the house of C, which 
 looked into a passage that ran the whole length of the centre build- 
 ing. One of the counts in the indictment allegfed the centre building 
 to be the dwelling-house of C. ; but the judges held that the window 
 merely w5,s not such an internal communication as could make the 
 centre building be deemed parcel of C.'s house : R. v. Eggingtm, 2 
 Bos. (& P. 508. Where a part of a dwelling-house, however, is 
 severed by letting, it thereby becomes (considered as a distinct 
 house) the subject of burglary or not, according to circumstances. 
 If a man hire a shop, parcel of another man's house, and unconnected 
 with it by internal communication, and the tenant work or trade in 
 it, but never lie there, it is no dwelling-house, and burglaiy cannot 
 be committed in it. 1 Sale, 558. If, on the contrary, he or any part 
 of his family lie there, it is deemed his dwelling-house, and may be 
 laid to be so in an indictment for burglary. Id.; and see R. y, 
 Rogers, 1 Leach, 89, 428. So, if he let oflf part, and do not by him- 
 self or any of his family dwell in the other part, the part let off is 
 the dwelling-house of the tenant, whether it communicate with the 
 other part or not, but the part not let off is not the subject of burglary. 
 But if the owner of the dwelling-house let the shop, which is uncon- 
 nected by internal communication with the house, and also let some 
 rooms in the house, which are connected with the other parts of it 
 to the same person ; and the tenant or some of his family sleep in 
 the rooms ; a breaking and entering of the shop, in that case, will be 
 burglary, and it may be laid to be committed in the dwelling-house 
 of the landlord. R. v. Gibson, 1 Leach, 357 ; 2 East, P. C. 508. 
 See Lee v. Gamel, Cmvp. 8 : R.v. Stock, R. & R. 185; 2 Lrnih, 1015: 
 R. V. Inhabitants of North Collingham, 1 B. t& C. 578 : R. v. Inhabit- 
 ants of Cheat Bolton, S B. <i> C. 11 : R.v. Inhabitants of Ditcheat, 9 
 B. & C. 176: R. v. Inhabitants of Macclesfield, 2 5. <fi Ad. 870: 
 Fmn v. GrafUm, 2 Ring. N. C. 617; 2 Scott, 66. 
 
 The term " dwelling-house" includes in its legal signification all 
 out-houses occupied with and immediately communicating with the 
 dwelling-house. But by stat. 24 & 25 Vict. c. 96, s. 53 (ante,p.if1), 
 no building, although within the same curtilage with the dwelling- 
 house, and occupied therewith, shall be deemed to be part of such 
 dwelling-house for any of the purposes of that act, unless there be a 
 communication between such building and dwelling-house, either im- 
 mediate or by means of a covered and enclosed passage leading from 
 the one to the other. Where the prosecutor's house consisted of two 
 living-rooms, another room used as a cellar, and a wash-house on the 
 ground-floor, and of three bed-rooms up-stairs, one of them over the 
 wash-house, and the bed-room over the house-place communicated 
 
Burglary, etc. 493 
 
 with that over the wash-house, but there was no internal oommunioa- 
 tion between the wash-house and any of the rooms of the house, but 
 the whole was under the same roof, and the defendant broke into the 
 wash-house, and was breaking through the partition-wall between the 
 wash-house and the house-place, it was holden that the defendant was 
 properly convicted of burglary in breaking the house, i?. v. Burro/was, 
 1 Mood. C. C. 274. But where adjoining to the house was a kiln, 
 one end of which was supported by the wall of the house, and ad- 
 joining to the kiln a dairy, one end of which was supported by the 
 wall of the kiln, the roofs of all three being of different heights, and 
 there being no internal communication from the house to the dairy, it 
 was held that burglary was not committed by breaking into the dairy. 
 R. V. Siggs, 2 0. d K. 322. To be within the meaning of this 
 section, the building must be occupied with the house in the same 
 right; and therefore where a house let to and occupied by A. adjoined 
 and communicated with a building let to and occupied by A. and B., 
 it was holden that the building could not be considered a part of the 
 dwelling-house of A. R. v. Jenkins, R. & R. 224. If there be any 
 doubt as to the nature of the building broken and entered, a count 
 may be inserted for breaking and entering a building within the cur- 
 tilage. {Ante, p. 404.) 
 
 As to the ownership of the dwelling-house : — Where it is laid to be 
 the dwelling-house of J. N., proof that it was occupied by his wife 
 and her establishment alone will support the indictment: and in such 
 a case it should always be alleged in the indictment to be the dwell- 
 ing-house of the husband, even although the wife live separate from 
 him, and the house have been taken by her, and she have paid the 
 rent, taxes, etc. R. v. Farre, Kel. 43; cmd see Bogget v. Frier, 11 
 East, 301: R. v. Smyth, b C. & P. 201; \ M. & Rob. 157; (unless 
 there has been a judicial separation, 20 <& 21 Vict. c. 85, s. 25, or 
 unless the wife has obtained a protection order, ib. s. 21.) Thus, 
 where a married woman lived apart from her husband, upon an in- 
 come arising from property vested in trustees for her separate use, 
 the judges held that a house which she had lived in was properly de- 
 scribed as her husband's dwelling-house, though she paid the rent 
 out of her separate property, and the husband had never been in it. 
 R. V. French, R. & R. 491. And where a husband and wife separated 
 by mutual consent, and the wife lived in a house belonging to the 
 husband with his consent, and, with the knowledge of her husband, 
 in adultery with another man, who paid the household expenses, but 
 not the rent, it was holden that the house was properly described as 
 the dwelling-house of the husband. R. v. Wilford, R. <& B. 517. 
 So, if a man occupy a dwelling-house by his servants, and do not 
 reside in it himself, the indictment must allege it to be the dwelling- 
 house of the master; and evidence of an occupation by his servants 
 will maintain the indictment. But a difficulty very frequently arises 
 in such cases, to ascertain whether the occupation by the servant is 
 in his own right or in that of his master. Where three persons were 
 in partnership in a bank and brewhouse, the business of which was 
 transacted in the lower rooms of the house in question, and a cooper 
 in the service of the partnership, at weekly wages, lived with his 
 family in the upper rooms, which communicated with the lower rooms 
 by means of a trap-door and a ladder, but there was also a separate 
 entrance to these rooms from without; the lower rooms were broken 
 and entered, and property stolen from them ; and the judges held 
 that the house was well laid in the indictment to be the dwelling- 
 
494 Burglary, etc. 
 
 house of the partners. R. v. Stock, 2 Taunt. 339 ; 2 Leacli, 1016; 
 R. & R. 185. Where a ■warehouseman, with his family, lived in a 
 dwelling-house upon his master's premises, for which and for coals 
 he paid his master a rent of \\l. a year, and the master let the 
 house, which was worth 20Z. 'per annum, to an ordinary tenant, to the 
 warehouseman at the lower rent, that he might reside upon the pre- 
 mises as a security, it was holdeu that the warehouseman stood in 
 the character of tenant, for the master might have distrained upon 
 him for rent, and could not arbitrarily have removed him. R. v. 
 Jarvis, 1 Mood. C. C. 7. See R. v. Smyth, ante, p. 493. So where, with 
 certain wages, a labourer had a cottage rent-free to live in, it was 
 holden that, as the labourer occupied this cottage for his own 
 benefit, and not for the benefit of his master, it was well described 
 as the dwelling-house of the labourer. R. v. Johling, R. <& B. 526. 
 Where a toll-gate house, occupied by a person employed by the 
 lessee of the tolls to collect the tolls, at weekly wages, with the pri- 
 vilege of living in the toll-gate bouse erected by the trustees of the 
 road for that purpose, was broken and entered in the night-time, it 
 was holden that the house was well described as the dwelling-house 
 of the toll-gate keeper, because he had the exclusive possession, 
 and it was unconnected with the premises of the lessee who did not 
 appear to have any interest in it. R. v. Canfield, 1 Mood. C. C. 
 42. So, where a gardener lived in a house of his master, quite 
 separate from the dwelling-house of his master, and had the entire 
 control of the house he lived in, and kept the key, it was held, 
 that it might be laid either as his or his master's house. B. Y.Bees, 
 
 1 C. & P. 668. And where a servant lived rent-free in a house 
 belonging to his master, and his master paid the taxes, and his 
 master's business was carried on in the house, but the servant and 
 his family were the only persons who slept in the house, and that 
 part of the house in which his master's business was carried on was 
 at all timfes open to those parts in which the servant lived; upon 
 an indictment for breaking and entering that part of the house in 
 which the master's business was carried on, it was held that it 
 might be described as the servant's house ; but it was not decided 
 that it might not also be described as the house of the master. R. 
 V. Witt, 1 Mood. C. C. 248. Where the house was described as the 
 house of J. B., and it appeared that J. B. worked for one W., who 
 did carpenter's work for a public company, and put J. B. into the 
 house in question, which belonged to the company, to take care of 
 it and of some mills adjoining, J. B. receiving no more wages than 
 before he went to live in the house, it was held not rightly laid. 
 R. V. Rawlins, 1 C. & P. 150. Where apartments in the house of 
 a corporation are appropriated as lodgings for servants of the cor- 
 poration, a burglary committed in them must be laid to have been 
 committed in the dwelling-house of the corporation. R. v. Picket, 
 
 2 East, P. C. 501 : .R. v. Hawkins, Post. 38 : and see R. v. Maymrd, 
 2 East, P. C. 501. So, a club-house cannot be laid as being the 
 dwelling-house of the house-steward, who sleeps in it, and had 
 charge of the property stolen. R. v. Ashley, 1 G. & K. 198. So, 
 where apartments are assigned to any person in a royal palace, 
 a burglaiy committed in them must be laid to have been com- 
 mitted in the mansion of the Queen. R. v. Williams, 1 Hale, 522; 
 and see Kel. 27 ; 1 Leach, 322. But where a company in the country 
 rented a house in London for their agent, in the upper part of 
 which he resided with his family, and in the lower part transacted 
 
Burglary, etc. 495 
 
 his business, it is reported to have been holden by Graham, B., and 
 Grose, J., that a burglary in the house was well laid to have been 
 committed in the dwelling-house of the agent. R. v. Mwgette, 2 
 Leach, 930. Where a house rented by A. and B., partners, was 
 divided into two houses for the convenience of their respective 
 families, the family of A. residing in one, the family of B. in the 
 other, and there was no internal communication between them ; a 
 burglary in the part occupied by A. was holden to be well laid to 
 have been committed in the dwelling-house of A., and not of the 
 partners, although the rent of both houses was paid jointly out of 
 the partnership funds. B. v. Jmes, 1 Leach, 537. But a house, the 
 joint property of partners in trade, in which their business is carried 
 on, may be described as the dwelling-house of all the partners, 
 though only one of the partners reside in it. E. v. Athea, 1 Mood. 
 
 a a 329. 
 
 Where the room occupied by a guest in an inn is broken and 
 entered in the night-time, an indictment for the burglary must lay 
 it to have been committed in the dwelling-house of the innkeeper ; 
 1 Hale, 557: B. v. Prosser, 2 East, P. C. 502; and the same in all 
 other cases where the occupier has the use merely, and no interest 
 in the apartment he occupies. See 1 Eawh. c. 38, s. 26. Apart- 
 ments let to lodgers, however, admit of a different consideration. If 
 part of a house be let to a lodger, who sleeps there, and no other 
 person resides in the remainder of the house, a burglary in the lodg- 
 ings must be laid to have been committed in the dwelling-house of 
 the lodger. Where a coachman rented the loft over a coach-house 
 and stables, and he and his family resided in it, a burglary com- 
 mitted in it was holden to be well laid to have been committed in 
 the dwelling-house of the coachman. B. v. Turner, 1 Leach, 395. 
 So, if the house be let out to several lodgers, and the owner do not 
 reside in it, a burglary in it must be alleged to have been committed 
 in the dwelling-house of that person whose lodgings were broken and 
 entered. B. v. Bogers, 1 Leach, 89 : and see B. v. Tra/pshaw, 1 Leach, 
 427. So, where the shop of a dwelling-house is divided into two 
 shops, with a door in each opening towards the street, and another 
 into a common passage leading to the common staircase, and the 
 whole of the house is occupied by the two occupiers of the shops, 
 the separate shop of each may be described as the dwelling -house 
 of each. B. v. Bailey, 1 Mood. C. C. 23. And where a lodger 
 "occupied a sleeping-room on the first-floor, and the workshop in the 
 attic, and the rest of the house was occupied by other lodgers, a 
 burglary in the workshop was holden by the judges to be well laid 
 to have been committed in the dwelling-house of the lodger who 
 rented it. B. v. Carrol, 1 Leach, 287. But if the owner of the 
 house reside in a part of it, and let the rest out in lodgings — then, 
 if the part occupied by the lodger be severed from that occupied by 
 the owner, that is, if there be no internal communication between 
 them, and the lodger and owner enter the house by different outer 
 doors, a burglary in the part occupied by each i-espectively must be 
 laid to have been committed in the dwelling-house of the person so 
 occupying it ; but if they be not severed, and the lodger and owner 
 enter by the same outer door, then the burglary must be laid to 
 have been committed in the dwelling-house of the owner. 1 Leach, 
 90, n.; Kel. 83, 84 ; 2 East, P. C. 503. Where, therefore, the ser- 
 vant of the prosecutor dwelt in part of the house, and the rest, 
 excepting the shop, was let off to lodgers ; it was holden, that the 
 
496 Burglary, etc. 
 
 shop in the prosecutor's occupation was properly descrihed as the 
 dwelling-house of the prosecutor. B. v. Gibbons, R. & R. 442. And 
 where the prosecutor let a shop to his sou, which had a separate 
 entrance from the street, but communicated with the dwelling-house 
 of the prosecutor by a back door, and the son used the shop as a 
 place of business only, and did not reside there, it was holden that 
 the shop was properly described as the dwelling-house of the prose- 
 cutor. R. V. Sefton, R. & R. 292. If a person let off part of his 
 house, but do not dwell in the part reserved, the part let is the 
 dwelling-house of the tenant, but the part reserved is not the subject 
 of burglary ; it is not the dwelling-house of the tenant, because it 
 forms no part of his holding, and it is not that of the owner, because 
 he does not dwell in it. The governor of a workhouse, under a 
 contract for seven years with the guardians and overseers of the 
 poor, occupied and dwelt in the governor's house, with the exception 
 of one room reserved to the guardians and overseers, as their office 
 of which the governor had one key, and the clerk of the guardians 
 and overseers the other, but the governor's servant cleaned the 
 room ; upon an indictment for breaking and entering this room, it 
 was holden that it could not be described as the dwelling-house of 
 the governor. R. v. Wilson, R. & R. 115. (See ante, p. 490.) 
 
 In all cases of this description, if there be any doubt whether the 
 house broken and entered should be described as the dweUing-house 
 of A., B. or C, the pleader should obviate the difficulty by inserting 
 counts alleging it to be the dwelling-house of A., B. and C. respec- 
 tively; although there can be little doubt that a variance in this 
 respect would be amended at the trial. 
 
 It may be necessary to mention, that a man cannot be indicted for 
 burglary in his own house. Therefore, if the owner of a house break 
 and enter the room of his lodger, and steal his goods, he can only be 
 convicted of the larceny. Eel. 84 ; 2 East, P. C. 502, 506. 
 
 At the common law, a church may be the subject of burglaiy ; 3 
 Inst. 64 ; 1 Hale, 559 ; but this is now provided for by statute. {See 
 ante, p. 395.) 
 
 Lastly, as to the local description of the house : — It must be proved 
 as laid; if there be a variance between the indictment and evidence, 
 in the parish, etc., where the house is alleged to be situate, the de- 
 fendant must be acquitted of the burglary, unless an amendment be 
 made (ante, p. 49). If it be not stated in the indictment where the 
 house is situate, it shall be taken to be situate at the place laid as 
 special venue. R. v. Napper, 1 Mood. C. C. 44. And if, two parishes 
 having been named, the house is stated to be " at the parish afore- 
 said," the last parish shall be intended. R. v. Richards, 1 M.& Bah. 
 177. It is sufficient to allege that the burglary was committed at a 
 place named (as " at N., in the county aforesaid"), without stating it 
 to be a parish, viU, chapelry, or the like. R. v. Brookes, C. & Mar. 
 644. In R. V. Bennett, R. & R. 289, it appeared, upon an indictment 
 for breaking and entering a dwelling-house in the parish of A., that 
 the outhouse broken and entered was in the parish of B., but the 
 dwelling-house with which it was connected and occupied was in the 
 parish of A., and the point was raised, but not decided, whether under 
 such circumstances the indictment was satisfied. 
 
 To avoid difficulty, diiferent counts should be inserted, varying the 
 local description. If the house be not proved to be a dwelling-house, 
 the defendant must be acquitted of the burglary. 
 
Burglary, etc. 497 
 
 Breakl — There must be a breaking of the house, either actual or 
 constructive, to constitute burglary. If a man leave his doors or 
 •windows open, and another enter therein with intent to commit a 
 felony, it is no burglary. 1 Hale, 551 ; 3 Inst. 64. So, if there be 
 an aperture in a cellar window to admit light, through which a thief 
 enters in the night, this is not burglary. R. v. Lewis, 2 C. <& P. 628: 
 B. v. ^ggs, I M. S Boh. 357. 
 
 An actual breaking is, where the offender, for the purpose of get- 
 ting admis.sion for any part of his body, or for a weapon or other 
 instrument, in order to effect his felonious intention, breaks a hole 
 in the wall of the house, breaks a door or window, picks the lock of 
 a door, or opens it with a key, or even by lifting the latch, or un- 
 looses any other fastening to doors or windows which the owner has 
 provided. 3 Inst. 64 ; 1 Hale, 652. Thus, where an entry was . 
 effected by taking out the glass from a door, it was holderi to be 
 burgjavy. B. v. Smith, B. & B. 417. And where the defendant 
 pulled down the sash of a window which had no fastening, and was 
 only kept in its place by the pulley-weight, it was holden to be 
 burglary, although there was an outer shutter which was not put to. 
 B. V. Haines, B. & B. 451. So, where he raised a sash-window which 
 was shut down close, but not fastened, though it had a hasp which 
 might have been fastened. B.y.Hyams,! C.& P.AiX. And where 
 a window opening upon hinges, and fastened with wedges, but so 
 that by pushing against it it could be opened, was opened ; it was 
 holden to be burglary. R. v. Hall, B. & R. 355. So, where a party 
 thrust his arm through the broken pane of a window, and in so doing 
 broke some more of the pane, and thus got at and removed the 
 fastening of the window and opened it, it was holden to be a suffi- 
 cient breaking. R. v. Robinson, 1 Mood. C. C. 327. In R. v. Callan, 
 B. & B. 151, the prisoner entered the premises by lifting up a heavy 
 flap of a cellar, which was not bolted, and upon a question reserved 
 whether this was a sufficient breaking to constitute burglary, the 
 judges were equally divided : in a later case, however, it has been 
 decided that lifting up the flap of a cellar usually kept down by its 
 own weight is a sufficient breaking for the purpose of burglary. B. 
 v. Bussell, 1 Mood. C. C. 377. See B. v. Brovm, 2 East, P. C. 487. 
 If a window be partly open, but not sufficiently to admit a person, 
 the raising of it so as to admit a person is not a breaking of the 
 house. B. V. Smith, 1 Mood. C. C. 178. 
 
 A constructive breaking is, where the offender, with intent to 
 commit a felony, obtains admission by some artifice or trick, for the 
 purpose of effecting it. As, for instance, if a man knock at a door, 
 and upon its being opened, rush in with a felonious intent : or, upon 
 pretence of taking lodgings, fall upon the landlord and rob him : or 
 procure a constable to gain admittance, in order to search for traitors, 
 and then bind the constable and rob the house ; all these entries 
 have been adjudged burglaries, although there were no actual break- 
 ing; for the law will not suffer itself to be trifled with by such 
 evasions, especially under the cloak of legal process. 1 Hawk c. 38, 
 ss. 9, 10 ; 4 Bl. Com. 226. So, where the defendant obtained admis- 
 sion, by promising a boy, who was in care of the house, some ale ; 
 and whilst the boy was gone for the ale, robbed the house : this was 
 holden to be burglary. B. v. Hawkins, 2 East, P. C. 485. Nay, 
 if a servant conspire with a robber, and let him into the house by 
 night, this is burglary in both ; 1 Hale, 653 ; 1 Hawk e. 38, s. 14 ; 
 
498 Burglary, etc. 
 
 R. V. Cornwall, 2 Str. 881 ; for the servant is doing an unlawfiil act' 
 and the opportunity afforded him of doing it with greater ease 
 rather aggravates than extenuates the guilt. But if a servant, pre- 
 tending to agree with a robber, open the door and let him in for 
 the purpose of detecting and apprehending him, this is no burglary 
 for the door is lawfully open. R. v. Johnson, C. & Mar. 218. Ob^ 
 taining admission to a house by getting down the chimney, is bur- 
 glary ; for the chimney is as much closed as the nature of tliingB 
 will admit. R. v. Brice, R. & R. 450; 1 Hawh. c. 38, «. 6. Sec 1 
 HaU, 552. 
 
 And the breaking necessary to constitute burglary is not restricted 
 to the breaking of the outer wall, or doors, or windows of a hoMe ■ 
 if the thief get admission into the house by the outer door or window 
 being open, and afterwards breaks or unlocks, etc., an inner door, for 
 the purpose of entering one of the rooms, etc., in the house, it is 
 burglary. 1 Hale, 553 : R. v. Johnson, 2 East, P. C. 488. Sq; if a 
 servant open his master's chamber-door, or the door of any other 
 chamber not immediately within his trust, with a felonious design; or 
 if any other person lodging in the same house, or in a public inn, open 
 and enter another's door with such evil intent it is burglaiy. 1 Bab, 
 653, 654. It is doubted, whether breaking open cupboards, etc., in 
 the inside of a house, affixed to the freehold, is burglary ; see 1 Hale, 
 627 ; Post. 108 ; and Mr. Justice Foster, in famrem, vitas, recom- 
 mends that it should not be so considered. Fast. 109. And clearly, 
 the breaking open chests, etc., in a dwelling-house is not burglary. 
 1 Hale, 553, 554. The breaking must be of some part of the house ; 
 and, therefore, where the defendant opened an area gate with a ske- 
 leton key, and thence passed through an open door into the kitchen, 
 it was holden not to be a breaking, there being no free passage from 
 the area to the house in the hours of sleep. R. v. Davis, B. & B. 
 322. And, upon the same principle, it was holden that the breaking 
 of an outward gate, part of the outward fence of the curtilage of a 
 dwelling-house, and which opened, not into any building, but into 
 the yard only, was not a breaking of the dwelling-house. B. t. 
 Bennett, R. dk R. 289. Where a shutter-box partly projected fl-om a 
 house, and adjoined the side of the shop-window, which side was 
 protected by wooden panelling, lined with iron ; it was holden that 
 the breaking and entering the shutter-box did not constitute burglary. 
 R. V. Paine, 1 C. & P. 135. 
 
 To enter.'} — -And there must be an entry, as well as a breaWmg, to 
 constitute burglary ; although we have seen that the entry need not 
 be on the same night as the breaking. Ante, p. 490 ; 1 HaU, 561. 
 Any the least degree of entry, however, with any part of the body, 
 or with any instrument held in the hand, is sufficient ; as, for instance, 
 after breaking the door or window, etc., to step over the thi-eshold, 
 to put a hand, or a finger, R. v. Davis, R. & R. 499, or a hook or other 
 instrument in at a window to draw out goods, or a pistol, to demand 
 one's money, are all of them burglarious entries. 1 HaU, 656; Post. 
 108; 1 Hawh. c. 38, ss. 11, 12; 3 Inst. 64. So, if the defendant in- 
 troduce his hand through a pane of glass, broken by him, between 
 the outer window and an inner shutter, for the purpose of undoing 
 the window-latch, it is a sufficient entry. R. v. Bailey, RSR. 341. 
 So, an entry down a chimney is a sufficient entry into a house, for 
 the chimney is part of the house. R. v. Briee, R. d B. 450. _ Bnt 
 an entry through a hole in the roof left for the purpose of admittmg 
 
Bwghiry, etc. 49& 
 
 light is not a sufficient entry to constitute burglary ; for a chimney 
 is a necessary opening, and needs protection; whereas, if a man 
 choose to leave a hole in the wall or roof of his house, instead of a 
 fastened window, he must take the consequences. R. v. Spriggs, 1 
 M. dk Rob. 357. It has even been said that discharging a loaded 
 gun into a house is a suflBcient entry. 1 Hawk. c. 38, s. 11. But 
 there must be an entry : if, for instance, a man assault a house, or 
 even break a hole in it, and before entry the owner iling his money 
 to the thief, it would not be burglary. 1 Hawk c. 38, s. 3 ; 1 Hale, 
 556. So, if the instrument with which the house is broken happen 
 to enter the house, but without any intention on the part of the 
 burglar to effect his felonious intent (as, for instance, to draw out 
 the goods) with it, this will not be a sufficient entry to constitute a 
 burglary. R. v. Hughes, 1 Leach, 406. See R. v. Roberts, 2 East, 
 P. C. 487. Where, therefore, the defendant threw up a window, and 
 introduced a crow-bar to force the shutters, which were three inches 
 from the window, but no part of his hand was within the window, 
 this was holden not to be an entry, although the jury found that 
 the defendant did this with intent to steal. .H. v. Rust, 1 Mood. C. C. 
 183. 
 
 It will be seen that the present statute, 24 d: 25 Vict. c. 96, now 
 provides, by the 54th section (ante, p. 487), for the case of a person 
 who, without any breaking, enters a dwelling-house in the night with 
 intent to commit any felony therein, and subjects the person so of- 
 fending to penal servitude for not more than seven and not less than 
 three years [now five years, 27 d: 28 Vict. c. 47, s. 2, ante, p. 173], or 
 to imprisonment for any term not exceeding two years. The cases 
 as to what constitutes an entry will of course be equally applicable 
 to this offence as to the offence of burglary. 
 
 With intent, etc.] — The intent laid in the indictment must be to 
 commit some felony (and whether a felony at common law or by 
 statute is immaterial, 1 Hawk. c. 38, s. 38) in the dwelling-house, 
 such as larceny, murder, rape, etc. ; and the intent must be proved 
 as laid. Where the intent laid was to kill a horse, and the intent 
 proved was merely to lame him, in order to prevent him from running 
 a race, the variance was holden fatal. R. v. Dobbs, 2 East, P. C. 513. 
 If the intent laid be to murder, and the intent proved be to beat the 
 party merely, the variance is fatal. 1 Hale, 561. Where the intent 
 laid was to steal, and the intent proved was to carry away the de- 
 fendant's trunk containing money which he had formerly embezzled 
 from his master, it was holden that the offence proved did not amount 
 to a burglary ; for it was no felony in the defendant to remove the 
 money. R. v. Dingley, 2 Leach, 840, c. So, where the intent was 
 laid to steal, and the intent proved was to rescue uncustomed goods 
 which had been seized, the judges held that the indictment was 
 not sustained by the evidence. R. v. Knight, 2 East, P. C. 610. 
 So, where the intent laid was to steal the goods of J. W., and it ap- 
 peared in evidence that no goods of any person of the name of J. W. 
 were in the house, but that the name of J. W. had been inserted in 
 the indictment by mistake : the judges held the variance to be fatal, 
 and the defendant was accordingly acquitted. R. v. Jenks, 2 East, 
 P. C. 614 (ante, p. 202). But where the indictment alleged the in- 
 tent to be generally " the goods and chattels in the said dwelling- 
 house then and there being" to steal, and charged the defendant with 
 stealing the goods of A. therein, it was held to be satisfied by proof 
 
500 Burglary, etc. 
 
 of a breaking into the house, with intent to steal the goodB there 
 generally, though the goods actually stolen did not belong to A 
 alone. R. v. Clarke, \ C. & K. 421. 
 
 The best evidence of the' intent is, that the defendant actually 
 committed the felony alleged to have iDeen intended by him : see R. 
 V. Locost, Kel. 30 : or you may give in evidence any other facts from 
 which the intent may be presumed by the jury. {See ante, p. 208.) 
 Where the defendant was discovered in the chimney of a shop in the 
 night-time, and the jury found him guilty of the burglary with intent 
 to steal, it was holden that the evidence was sufficient to warrant the 
 conviction. R. v. Brice, R. & R. 450. If the intent be at all doubt- 
 ful, you may lay it in different ways in separate counts. See 2 Eait, 
 P. G. 515 ; Leach, 1105, n. 
 
 And then and there in the said Dwelling-house, ete.J — The larceny 
 in the dwelling-house is proved as directed ante, p. 402. It seems, 
 however, that, to convict the defendant of the felony charged to have 
 been committed, it must appear to have been concurrent with the 
 burglai-y ; you cannot give evidence of a felony committed at a dif- 
 ferent time. Where it appeared in evidence, that, upon entering the 
 house at three o'clock in the day, the owner found that some person 
 had removed certain goods to a different part of the house from that 
 in which he had placed them, seemingly for the purpose of stealing 
 them : and the defendants afterwards, on the same evening, having 
 broken and entered the house, were taken in it, before they had 
 attempted to move or carry away anything: having failed at the trial 
 to prove the burglary, the prosecutor was proceeding to prove the 
 defendants guilty of the antecedent larceny ; but the court refused 
 to receive the evidence, saying, that the transactions were perfectly _ 
 distinct, and that the prosecutor might as well attempt to prove a 
 larceny committed seven years before. R. v. Vamdercomh & Allot, 
 2 Leach, 708. 
 
 If you succeed in proving a larceny, but fail in proving it to have 
 been committed in the dwelling-house, or the goods to be of the 
 value of five pounds, and if you also fail in proving the burglary, the 
 defendant may be convicted of the simple larceny. If two or more 
 are indicted, one may be found guilty of the burglary and larceny, 
 and the other of the larceny only. R. v. Butterworth, R. & R. 620 
 (see ante, p. 69) : R. v. Turner, 1 Sid. 171, contra. Where a room- 
 door was latched, and a person lifted the latch and entered the room, 
 and concealed himself for the purpose of committing a larceny there, 
 which he afterwards effected ; and two other persons were present 
 with him when he lifted the latch, for the purpose of assisting him to 
 enter, and screened him from observation by opening an umbrella, it 
 was holden that those two were in law parties to the breaking and 
 entering, and were answerable for the larceny which afterwards took 
 place, though they were not near the spot when it was perpetrated. 
 R. V. Jordan, 7 C. & P. 432. Where the breaking is on one night, 
 and the entry the night after, a person present at the breaking, 
 though not present at the entering, is in law guilty of the whole 
 offence. Id. 
 
 Indictment for Burglary ly Ireahing out of a Souse. 
 Surrey, to wit : — The jurors for our lady the Queen upon their oath 
 present, that J. S., on the first day of June, in the year of our Lord 
 
Burglary, etc. 501 
 
 , about the hour of eleven in the night of the same day, being in 
 
 the dwelling-house of J. N., situate at the parish of B., in the county 
 of S., one silver sugar-basin of the value of three pounds, six silver 
 table-spoons of the value of three pounds, and twelve silver tea- 
 spoons of the value of two pounds, of the goods and chattels of one 
 J. 0., in the said dwelling-house of the said J. N. then being, in the 
 said dwelling-house feloniously did steal, take and carry away ; and 
 that he the said J. S. being so as aforesaid in the said dwelling-house, 
 and having committed the felony aforesaid, in manner and form 
 aforesaid, afterwards, to wit, on the same day and year aforesaid, 
 about the hour of eleven in the night of the same day, feloniously 
 and burglariously did break out of the said dwelling-house of the 
 said J. N. ; against the form {as ante, p. 347]. 
 
 An indictment stating that the prisoner " did hreah to get out," or 
 " did Ireak and get out," is bad, the words of the statute being " break 
 out" R. V. Compton, 1 C.& P. 139. 
 
 Felony : 24 db 25 Vict. c. 96, s. 51 (ante, p. 487). This section of 
 the statute declares, that " whosoever shall enter the dwelling-house of 
 another, with intent to commit any felony therein, or being in such dwell- 
 ing-house shall commit any felony therein, amd shall in either case break 
 out of the said dwelling-house in the night, shall be guilty of bur- 
 glary." The pimishment is the same as stated in the last precedent, 
 ante, p. 489. 
 
 This offence is not triable at quarter sessions. 5 i£ 6 Vict. c. 38, 
 6. 1 {ante, p. 104). 
 
 Evidence. 
 
 Prove a larceny in the dwelling-house of J. N., as directed ante, 
 pp. 314, 402. And prove a breaking of the house by the defendant, 
 in the night-time, in order to get out of the same. In R. v. Laio- 
 rence, i C.& P. 231, Bolland, B., held that escaping from a house 
 by lifting a heavy flap-door which had no fastening, but was kept 
 down by its own weight, was not a sufficient breaking out of a house, 
 although, as we have seen, ante, p. 497, it would constitute a good 
 breaking into a house : perhaps the cases are distinguishable. It is 
 not the less a burglary, because the defendant was lawfully in the 
 house, as a lodger, or a guest at an inn. R. v. Wheeldon, 8 C. c& P. 
 747. 
 
 If it be doubtful whether a felony can be proved, but there be 
 sufficient evidence of an intent to commit a felony, a coimt may be 
 added, stating the intent. To prove this count, the prosecutor must 
 prove the entry, the intent as in other cases, and the breaking out. 
 
 Indictment for being found by Night armed, with intent to break into 
 a Dwelling-house and to commit a Felony therein. 
 Central Criminal Court, to wit : The jurors for our lady the Queen 
 upon their oath present, that J. S., on the first day of December, in 
 
 the year of our Lord , about the hour of eleven in the night of 
 
 the same day, at the parish of , in the county of Middlesex, was 
 
 found unlawfully armed with a certain dangerous and offensive in- 
 strument, that is to say, a crow-bar [any dangerous or offensive weapon 
 or instrument whatsoever], with intent then to break and enter {break 
 or enter] into a certain dwelling-house of J. S. there situate, and the 
 goods and chattels in the said dwelling-house then being feloniously 
 
502 Burglary, etc 
 
 to steal, take and cany away ; against the form [as ante., p. 347]. 
 It is not necessary to aver that the goods and chattels were the property 
 of any particular perscm; R. v. Lawes, 1 C. & K. Q1-, ante, p, 398. 
 The indictment must, as in hwglary, allege the ownership and situation 
 of the premises intended to be broken into. JR. v. Jarrald, L.& C. 301- 
 32 L. J. (M. C.) 258 ; and it seems also that it ought to allege the par- 
 tiealar felony intended to have been cormnitted. Id. per Oromptm, J. 
 For the form of an indictment after a previous conviction, under the 
 59th section of the statute, see post. Book II., Chap. V. 
 
 Misdemeanor: penal servitude for five [27 c6 28 Vict. c. 47, «. 2, 
 amte, p. 173] years, or imprisonment, with or without hard labour, not 
 exceeding two years; 24 c6 25 Vict. c. 96, s. 58. As to fining the 
 offender and requiring him to enter into recognizances and find sureties 
 for keeping the peace and being of good behamiour, Id. s. 117 (ante, 
 p. 307). And for the like offence after a previous convictiim for 
 felony, penal servitude for not more than ten nor less than seven [27 
 <6 28 Viet. c. 47, s. 2, ante, p. 173) years, or imprisonment, with or 
 without hard labour, not exceeding two years. 24 & 25 Vict. c. 96, 
 s. 59. As to requiring the offender to enter into recognizances and find 
 sureties for keeping the peace. Id. s. 117, ante, p. 307. And for the 
 like offence, after a previous conviction for such misdemeanor, penal 
 servitude for not more them ten nor less than five [27 <fe 28 Vict. e. 47, 
 s. 2, a/nte, p. 173] years, or imprisonment, with or without hard labour, 
 not exceeding two years. 24 & 25 Vict. c. 96, s. 59. As to requiring 
 the offender to enter into recognizamces amd find sureties for keeping ih 
 peace, Id. s. 117, ante, p. 307. 
 
 Evidence. 
 
 Prove that the defendant -was found hj night, that is, between 
 nine o'clock p.m. and six o'clock a.m., see 24 <& 26 Vict. c. 96, s. 1 
 {ante,p. 487), and armed as alleged in the indictment. Then prove 
 the intent, which may be inferred from the nature of the weapon or 
 instrument with which the defendant is found armed, the place in 
 which he is found, or from his declarations, or from other circum- 
 stances ; see ante, p. 208. It is necessary that the defendant should 
 be proved to have had the intent of breaking into or entering some 
 particular building, and proof of a general intent to break into 
 houses will be insufficient. B. v. Jarrald, L. & C. 301 ; 32 L. J. 
 (if. C.) 258. 
 
 Indictment for having in Possession, by Night, Implements of 
 
 Commencement as abo/vel — about the hour of eleven in the night 
 
 of the same day, at the parish of , in the county of , was 
 
 found, he the said J. S., then and there, by night as aforesaid, unlaw- 
 fully having in his possession, without lawfiil excuse, certain imple- 
 ments of housebreaking, that is to saj', ten picklocks, ten keys and 
 two crows ; against the form \as ante, p. 347]. In the printed copies 
 of the statute 24 & 25 Vict. c. 96, «. 58, as also im. those of the repealed 
 act 15 & 16 Vict. c. 19, s. 1, the words are thus pumctmted,—^^ any 
 picklock key, crow, jack, bit, or other implement of housebreak- 
 ing :" but it seems that there should be a comma between the loords 
 "picklock" and "key;" see R. v. Oldham, 2 Den. 472; S C. (& K- 
 
Anon. 503 
 
 260 ; 21 L. J. (M. C.) 134. An indictment on this section need not 
 allege cm intent to commit a felony. R. v. Bailey, Dears. 244 ; 23 
 L. J. (M.C.) 13. 
 Misdemeanor: 24 <& 25 Vict. c. 96, s. 58. See the last precedent. 
 
 Evidence. 
 
 Prove that the defendant was found by night (that is, between nine 
 P.M. and six a.m., see ante, p. 502), having in his possession one or 
 more of the implements of housebreaking mentioned in the indict- 
 ment. Every instrument which from its nature is capable of being 
 used for housebreaking, although ordinarily used for lawful purposes, 
 e.g., a house door-key, or a pair of pincers, is an implement of house- 
 breaking within the statute, if the jury are of opinion, from the cir- 
 cumstances, that at the time when the defendant was found in 
 possession of it, it was his intention to use it as such. R. v. Oldham, 
 2 Den. 472; 3 C. i& K. 250; 21 L. J. (Jf. C.) 134. The lawful 
 excuse for possession, if any, must be proved by the defendant. 
 
 Semhle, that it was a misdemeanor at common law to have posses- 
 ion of instruments of housebreaking, with intent to break into a 
 house and steal the goods therein : see R. v. Lee,. Gas. temp. Hardw. 
 371 ; sed quoere; see ante, p. 2. 
 
 Sect. 5. 
 
 ARSON. 
 
 BURNING HOUSES AND OTHER BUILDINGS, ETC. 
 
 Statutes. 
 
 24 & 25 Vict. c. 97, s. 1 — Bumisng Churches, etc.'] — Whosoever shall 
 unlawfully and maliciously set fire to any church, chapel, meeting- 
 house, or other place of divine worship, shall be guilty of felony, and 
 being convicted thereof shall be liable, at the discretion of the court, 
 to be kept in penal servitude for life or for any term not less than 
 three years [mw five years, 27 <* 28 Vict. c. 47, s. 2, ante, p. 173], 
 or to be imprisoned for any term not exceeding two years, with or 
 without hard labour, and with or without solitary confinement, and, 
 if a male under the age of sixteen years, with or without whipping. 
 
 Sect. 2—Bwming Houses, any Person being therein."] — Whosoever 
 shall unlawfully and maliciously set fire to any dwelling-house, any 
 person being therein, shall be guilty of felony, and being convicted 
 thereof shall be liable, at the discretion of the court, to be kept in 
 penal servitude for life or for my term not less than three years 
 now five years, 27 <& 28 Vict. c. 47, s. 2, ante, p. 173], or to be im- 
 Drisoned for any term not exceeding two years, with or without hard 
 abour, and with or without solitary confinement, and, if a male under 
 he age of sixteen years, with or without whipping. 
 
 Sect.3—-Bwming Houses, etc., etcl—yniOiOzyM shall unlawfully 
 md maliciously set fire to any house, stable, coach-house, outhouse, 
 »rarehouse, office, shop, mill, malt-house, hop-oast, barn, storehouse. 
 
504 Arson. 
 
 granary, hovel, shed, or fold, or to any farm building, or to any 
 building or erection used in farming land, or in carrying on anytratU 
 or manufacture, or any branch thereof, whether the same shall then 
 be in the possession of the offender, or in the possession of any other 
 person, with intent thereby to injure or defraud any person, shall be 
 guilty of felony, and being convicted thereof shall be liable, at the 
 discretion of the court, to be kept in penal servitude for life' or for 
 any term not less than three years [now five years, 27 dk 28 Vkt. c. 47 
 s. 2, ante, p. 173], or to be imprisoned for any term not exceedine 
 two years, with or without hard labour, and with or without solitary 
 confinement, and, if a male under the age of sixteen years with or 
 without whipping. 
 
 Sect. 4 — Setting Fire to Railway Stations."] — Whosoever shall un- 
 lawfully and maliciously set fire to any station, engine-house ware- 
 house, or other building belonging or appertaining to any railway 
 port, dock or harbour, or to any canal or other navigation, shall be' 
 guilty of felony, and being convicted thereof shall be liable, at the 
 discretion of the court, to be kept in penal servitude for life or for 
 any term not less . than three years \now five years, 27 d 28 Vict, 
 c. 47, s. 2, ante, p. 173], or to be imprisoned for any term not ex- 
 ceeding two years, witn or without hard labour, and, if a male under 
 the age of sixteen years, with or without whipping. 
 
 Sect. 5 — Setting Fire to Public Buildings.'] — Whosoever shall un- 
 lawfully and maliciously set fire to any building other than such as 
 are in this act before mentioned, belonging to the Queen, or to any 
 county, riding, division, city, borough, poor law union, parish, or 
 place, or belonging to any university, or college or haU of any uni- 
 versity, or to any inn of court, or devoted or dedicated to public use 
 or ornament, or erected or maintained by public subscription or con- 
 tribution, shall be guilty of felony, and being convicted thereof shall 
 be liable, at the discretion of the court, to be kept in penal servi- 
 tude for life, or for any term not less than three years [nam Jae 
 years, 27 c6 28 Vict. c. 47, s. 2, ante, p. 173], or to be imprisoned 
 for any term not exceeding two years, with or without hard labour, 
 and, if a male under the age of sixteen years, with or without 
 whipping. 
 
 Sect. 6 — Setting Fire to other Buildings.] — Whosoever shall unlaw- 
 fully and maliciously set fire to any building other than such as are 
 in this act before mentioned, shall be guilty of felony, and being 
 convicted thereof shall be liable, at the discretion of the court, to be 
 kept in penal servitude for any term not exceeding fourteen years 
 and not less than three years [now five years, 27 & 28 Vict. o. 47, >. % 
 ante, p. 173], or to be imprisoned for any term not exceeding two 
 years, with or without hard labour, and, if a male under the age of 
 sixteen years, with or without whipping. 
 
 Sect. 1— Setting Fire to Goods in jBmjW%s.]— Whosoever shall 
 unlawfiilly and maliciously set fire to any matter or thing, being in, 
 against, or imder any building, under such circumstances that if the 
 building were thereby set fire to the offence would amount to felony, 
 shall be guilty of felony, and being convicted thereof shall be liable, 
 at the discretion of the court, to be kept in penal servitude for any 
 term not exceeding fourteen and not less than three years [noafat 
 
Arson. 605 
 
 ■yean, 27 & 28 Vict. c. 47, s. 2, on<«, ^. 173], or to be imprisoned for 
 any terra not exceeding two years, with or without hard labour, and, 
 if a male under the age of sixteen years, with or without whipping. 
 [Wilfully throwing a light into a post-office htier-hox in a house, with 
 intent to burn the letters, but not the house, is not a felony within this 
 section. R. v. Batstone, 10 Cox, 20.] 
 
 Sect. b&— Accessories, eic.]— In the case of every felony punishable 
 under this act, every principal in the second degree, and every 
 accessory before the fact, shall be punishable in the same manner as 
 the principal in the first degree is by this act punishable ; and every 
 accessory after the fact to any felony punishable under this act shall 
 on conviction be liable, at the discretion of the court, to be impri- 
 soned for any term not exceeding two years, with or without hard 
 labour, and with or without solitary confinement ; and every person 
 who shall aid, abet, counsel, or procure the commission of any mis- 
 demeanor punishable under this act shall be liable to be proceeded 
 against, indicted, and punished as a principal offender. 
 
 Sect. 61 — Persons loitering at Night, and suspected of Felony against 
 this Act, may be apprehended.]— Any constable or peace officer may 
 take into custody, without warrant, any person whom he shall find 
 lying or loitering in any highway, yard, or other place, during the 
 night, and whom he shall have good cause to suspect of having com- 
 mitted or being about to commit any felony against this act, and 
 shall take such person as soon as reasonably may be before a justice 
 of the peace, to be dealt with according to law. 
 
 Sect. 58 — Malice against Owner of Property unnecessary.] — Every 
 punishmelit and forfeiture by this act imposed on any person mali- 
 ciously committing any offence, whether the same be punishable 
 upon indictment or upon summary conviction, shall equally apply 
 and be enforced, whether the offence shall be committed from malice 
 conceived against the owner of the property in respect of which it 
 shall be committed or otherwise. 
 
 Sect. 69 — Act to apply to Persons in Possession of Property injured,] 
 — Every provision of this act not hereinbefore so applied shall apply 
 to every person who, with intent to injure or defraud any other per- 
 son, shall do any of the acts hereinbefore made penal, although the 
 offender shall be in possession of the property against or in respect of 
 which such act shall be done. 
 
 Sect. 60— Indictment — Intent to injure or defraud.] — It shall be 
 sufficient in any indictment for any offence against this act, where it 
 shall be necessary to allege an intent to injure or defraud, to allege 
 that the party accused did the act with intent to injure or defraud (as 
 the case may be), without alleging an intent to injure or defraud any 
 particular person; and on the trial of any such offence it shall not be 
 necessary to prove an intent to injure or defraud any particular 
 person, but it shall be sufficient to prove that the party accused 
 did the act charged with an intent to injure or defraud (as the case 
 may be). 
 
 Sect. &1— Apprehension of Offenders.] — Any person found commit- 
 ting any offence against this act, whether the same be punishable 
 
506 Arson. 
 
 upon indictment or upon summary conviction, may be immediately 
 apprehended, without a warrant, by any peace oflScer, or the owner 
 of the property injured, or his servant, or any person authorized by 
 him, and forthwith taken, before some neighbouring justice of the 
 peace, to be dealt with according to law. 
 
 Sect. 67 — Summary Conviction a har to other Proceedings."]— VHim 
 any person convicted of any offence punishable upon summary con- 
 viction by virtue of this act shall have paid the sum adjudged to be 
 paid, together with costs, under such conviction, or shall have re- 
 ceived a remission thereof from the crown, or the lord-lieutenant or 
 other chief governor of Ireland, or shall have suffered the imprison- 
 ment awarded for nonpayment thereof, or the imprisonment awarded 
 in the first instance, or shall have been so discharged from his con- 
 viction by any justice as aforesaid, he shall be released from all 
 further or other proceedings for the same cause. 
 
 Sect. 70 — Proof of former Convictions.'] — Every justice of the 
 peace before whom any person shall be convicted of any offence 
 against this act shall transmit the conviction to the next court of 
 general or quarter sessions which shall be holden for the county or 
 place wherein the offence shall have been committed, there to be 
 kept by the proper officer among the records of the court; and upon 
 any indictment or information against any person for a subsequent 
 offence, a copy of such conviction, certified by the proper officer of 
 the court, or proved to be a true copy, shall be sufficient evidence 
 to prove a conviction for the former offence, and the conviction shall 
 be presumed to have been unappealed against until the contrary be 
 shown. 
 
 Sect. 71 — Venue.'] — All actions and prosecutions to be commenced 
 against any person for anything done in pursuance of this act shall 
 be laid and tried in the county where the fact was committed, and 
 shall be commenced within six months after the fact committed, and 
 not otherwise; and notice in vrriting of such action, and of the cause 
 thereof, shall be given to the defendant one month at least before the 
 commencement of the action; and in any such action the defendant 
 may plead the general issue, and give this act and the special matter 
 in evidence at any trial to be had thereupon ; and no plaintiff shall 
 recover in any such action if tender of sufficient amends shall have 
 been made before such action brought, or if a sufficient sum of 
 money shall have been paid into court after such action brought, by 
 or on behalf of the defendant; and if a verdict shall pass for the de- 
 fendant, or the plaintiff shall become nonsuit, or discontinue any 
 such action after issue joined, or if, upon demurrer or otherwise, 
 judgment shall be given against the plaintiff, the defendant shall 
 recover his full costs as between attorney and client, and have the 
 like remedy for the same as any defendant has by law in other cases; 
 and though a verdict shall be given for the plaintiff in any such action, 
 such plaintiff shall not have costs against the defendant, unless the 
 judge before whom the trial shall be shall certify his approbation of 
 the action. 
 
 Sect. 12— Admiralty Offmces.]—M\ indictable offences mentioned 
 in this act which shall be committed within the jurisdiction of the 
 admiralty of England or Ireland shall be deemed to be offences of 
 the same nature and liable to the same punishments as if they had 
 
Arson. 507 
 
 been committed upon the land in England or Ireland, and may be 
 dealt with, inquired of, tried, and determined in any county or place 
 in England or Ireland in which the offender shall be apprehended or 
 be in custody, in the same manner in all respects as if they had been 
 actually committed in that county or place ; and in any indictment 
 for any such offence, or for being an accessory to such an offence, 
 the venue in the margin shall be the same as if the offence had been 
 committed in such county or place, and the offence shall be averred 
 to have been committed " on the high seas :" provided that nothing 
 herein contained shall alter or affect any of the laws relating to the 
 government of h«r Majesty's land or naval forces. 
 
 Sect.13 — Fine and Sweties.'] — Whenever any person shall.be con- 
 victed of any indictable misdemeanor punishable under this act, the 
 court may, u it shall think fit, in addition to or in lieu of any of the 
 punishments by this act authorized, fine the offender, and require 
 him to enter into his own recognizances, and to find sureties, both or 
 either, for keeping the peace and being of good behaviour; and in 
 case of any felony punishable under this act, the court may, if it 
 shall think fit, require the offender to enter into his own recogni- 
 zances, and to find sureties, both or either, for keeping the peace, 
 in addition to any punishment by this act authorized ; provided that 
 no person shall be imprisoned under this clause for not finding sure- 
 ties for any period exceeding one year. 
 
 Sect. 14:~Place and Mode of Imprisonment.'] — Whenever imprison- 
 ment, with or without hard labour, may be awarded for any indict- 
 able offence under this act, the court may sentence the offender to 
 be imprisoned, or to be imprisoned and kept to hard labour, in the 
 common gaol or bouse of correction. 
 
 Sect. 15— Solitary Confinement and Whipping.'] — Whenever solitary 
 confinement may be awarded for any indictable offence under this 
 act, the court may direct the offender to be kept in solitary confine- 
 ment for any portion or portions of his imprisonment, or of his im- 
 prisonment with hard labour, not exceeding one month at any one 
 time, and not exceeding three months in any one year; and when- 
 ever whipping may be awarded for any indictable offence under 
 this act, the court may sentence the offender to be once privately 
 whipped ; and the namber of strokes, and the instrument with which 
 they shall be inflicted, shall be specified by the court in the sen- 
 tence. 
 
 Sect. 11— Costs of Prosecutions.]— Th^ court before which any in- 
 dictable misdemeanor against this act shall be prosecuted or tried 
 niay allow the costs of the prosecution in the same manner as in cases 
 of felony; and every order for the payment of such costs shall be 
 made out, and the sum of money mentioned therein paid and repaid, 
 upon the same terms and in the same manner in all respects as in 
 cases of felony. 
 
 Indictment for setting Fire to a Souse, with Intent, etc. 
 Central Criminal Court, to wit :— The jurors for our lady the Queen 
 upon their oath present, that J. S., on the first day of June, in the 
 
 z2 
 
508 Arson. 
 
 year of our Lord , feloniously, unlawfully, and mallciovisly did 
 
 set fire to a certain dwelling-house (" any house, stable, coach-houte 
 outhouse, warehouse, office, shop, mill, malt-house, hop-oast, bam, store- 
 house, granary, hovel, shed, or fold, or any farm-building, or building 
 or erection used in farming land or in carrying on any trade or manu- 
 facture, or any branch thereof'^ of J. N., situate in the parish of B. 
 in the county of M., with intent thereby then to injure the said 
 
 J. N., [or to defraud a certain insurance company called (" fo 
 
 injure or defraud any persvn!y\\ against the form [as amfe, ^. 347].' 
 Where, the indicttmeni omitted the word " unlawfully," the judges held 
 it to be bad. R. v. Turner, 1 Mood. C. C. 239; iC.&P. 245. 
 
 Felony: penal servitude for life or for not less than jive [27 & 28 
 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment not exceeding two 
 years, with or without hard labour., and urith or without solitary conjim- 
 ment ifiuch confinement not exceeding one month at any one time, nor 
 three months in any one year, 24 <& 25 Vict. c. 97, s. 76) ; and, if a male 
 under sixteen years of age, with or without whipping. — 24 <& 25 Vict. 
 c. 97, s. 3. As to requiring the offender to enter into recognizancu 
 and find sureties for keeping the peace. Id. s. 73 {ante, p. 507). 
 
 This offence is noi triable at quarter sessions. 5 <6 6 Vict e. 38, «. 1 
 (ante, p. 104). 
 
 Evidence. 
 
 On the first day of June, efc.] — The time here stated need not be 
 proved as laid: if the offence be proved to have been committed at 
 any time before or after, provided it be some day before the finding 
 of the indictment, it is sufficient. (See amte, p. 198.) Where the 
 indictment alleged the offence to have been committed in the night- 
 time, and it was proved to have been committed in the day-tune, the 
 judges held the variance to be immaterial, -ffi. v. MinUm, 2 Eait, 
 P. C. 1021. {See amte, p. 212.) 
 
 The parish is material, for it is stated as part of the local descrip- 
 tion of the house burnt. (Ante, p. 200.) Therefore, if the house be 
 proved to be situate in another parish, the defendant must be ac- 
 quitted, unless the variance be amended. Upon an indictment for 
 setting fire to a stack of pulse, it was holden that the offence was not 
 of a local nature. R. v. Woodward, 1 Mood. C. C. 323. But in that 
 case the indictment gave no local description to the property de- 
 stroyed. 
 
 Feloniously, unlawfully, and maliciously. J — The burning must be 
 done wilfully and maliciously, in order to be an offence, either at 
 common law or under the statute; and therefore no negligence or 
 mischance amounts to it. 4 Bl. Com. 222; 3 Inst. 67. For which 
 reason, though an unqualified person, by shooting with a gun, happen 
 to set fire to the thatch of a house, this Lord Sale determmes not to 
 be felony, contrary to the opinion of former writers. 1 ffak, 569. 
 But if a man, intending to commit a felony, by accident set fire to 
 another's house, this, it should seem, would be arson at common law, 
 and also within the statute. See Fast. 258, 259. If, intending to set 
 fire to the house of A., he accidentally set fire to that of B., it is 
 felony. 1 Hale, 569. Even if a man, by wilfully setting fire to his 
 own house, bum also the house of one of his neighbours, it will be 
 felony (see R. v. Probert, 2 East, P. C. 1030, 1031: R. v. Iscrn, Id. 
 1031); for the law, in such a case, implies malice, particularly if the 
 party's house were so situate that the probable consequence of its 
 
Arson. 509 
 
 taking fire was that the fire would communicate to the houses in its 
 neighbourhood. And generally, if the act be proved to have been 
 done wilfully, it may be inferred to have been done maliciously, 
 unless the contrary be proved. Bromage v. Prosser, 4 S. & C. 
 247, 265, ante, p. 237. The absence of malice or spite to the owner 
 is no answer to the charge. 24 cfe 25 Vict. c. 97, s. 68, ante, p. 606; 
 see R. V. Salmon, R. & R. 26. 
 
 Set Fire io.]— The words in stat. 24 & 26 Vict. c. 97, are " set 
 fire to," merely; and therefore it is not necessary to aver in the in- 
 dictment that the house, etc., was burnt; nor need it be proved that 
 the house, etc., was actually consumed. R. v. Salmon, R. & R. 26: 
 R. V. Stallion, 1 Mood. C. C. 398. But "within this act, as well as to 
 constitute the ofience of arson at common law, there must be an actual 
 burning of some part of the house; a bare intent, or attempt to do it, 
 is not sufficient. Where, upon an indictment on the repealed stat. 9 
 G. 1, c. 22, for setting fire to a paper-mill, it appeared that the de- 
 fendant set fire to some paper that was drying in one of the lofts, but 
 that no part of the mill itself was burnt; the judges held, that it did 
 not amount to an offence within the act. R. v. Taylor, 1 Leach, 49. 
 And where the defendant set fire to a parcel of unthreshed wheat it 
 was holden not to be within that statute. R. v. Jvdd, 2 T. R. 256. 
 But the burning and consuming of any part of the house, however 
 trifling, is sufficient, although the fire be afterwards extinguished. 
 1 Hawk. c. 39, s. 17; 3 Inst. 66; 1 Hale, 669; Dalt. 606. Where, on 
 an indictment upon the 1 Vict. c. 89, s. 3, it was proved that the 
 "floor of a room was scorched; that it was charred in a trifling way; 
 it had been at a red heat, but not in a blaze," this was held a suffi- 
 cient burning to support the indictment. R. v. Parker, 9 C. (& P. 46. 
 But where, a small faggot having been set on fire on the boarded 
 floor of a room, the boards were thereby " scorched black, but not 
 burnt," and no part of the wood was consumed : this was not held 
 sufficient. R. v. Russell, C. c6 Mar. 541. See now the 7th section 
 of the statute 24 d: 26 Vict. c. 97 (ante, p. 604), whereby the mali- 
 ciously setting fire to " any matter or thing being in, against, or 
 under any building," the setting fire to which would be a felony, is 
 itself made a felony, punishable by penal servitude for not more than 
 fourteen and not less than three years, or imprisonment for not more 
 than two years, with or without hard labour, etc. 
 
 It is seldom that a wilfiil burning by the defendant can be made 
 out by direct proof; the jury, in general, have to presume the de- 
 fendant's guilt from circumstantial evidence. (See ante, p. 236.) 
 Where a house was robbed and bra-nt, the defendant's being found 
 in possession of some of the goods which were in the house at the 
 time it was burnt, was admitted as evidence tending to prove him 
 guilty of the arson. R. v. Rickman, 2 East, P. C. 1036. So, where 
 the question is whether the burning was accidental or wilful, evi- 
 dence is admissible to show that on another occasion the defendant 
 was in such a situation as to render it probable that he was then 
 engaged in the commission of the like offence against the same 
 Koperty. R. v. Dossett, % C. & K. 306. And see R. v. Gray, AF.d 
 F. 1102 {ante, p. 209). But on a charge of arson, where the ques- 
 tion was as to the identity of the prisoner, evidence that a few days 
 previous to the fire in question another building of the prosecutor's 
 was on fire, and that the prisoner was then standing by with a de- 
 meanour which showed indifference or gratification, was rejected. 
 R. V. Harris, ^F.&F. 342 
 
510 Arson. 
 
 A certain DwelUng-house.'] — Arson at common law extended to 
 the burning not only of dwelling-houses, but of all outhouses parcel 
 thereof, such as bams, stables, etc., though not contiguous thereto 
 nor under the same roof, as in the case of burglary. 1 Hale, 667.' 
 The present statute extends to the burning of any house, stable 
 coach-house, outhouse, warehouse, office, shop, mill, malt-house, hop- 
 oast, bam, storehouse, granary, hovel, shed, or fold, or of any faiin- 
 building, or any building or erection used in farming land or in car- 
 rying on any trade or manufacture, or any branch thereof Upon 
 an indictment for burning a dwelling-house, either at common law 
 or under the statute, it would, perhaps, be sufficient to prove a burn- 
 ing of a building parcel of the dwelling-house. (See ante, p,. 490.) 
 Where such an outhouse was burnt, and an indictment on the stat. 
 9 G. 1, c. 22, described it as a " certain outhouse," an objection, that 
 the offence should have been described as a burning of the dwelling- 
 house (the word " outhouse" in the statute meaning, as it was sug- 
 gested, an outhouse which is not parcel of the dwelling-house) was 
 overruled by the judges. E. v. North, 2 East, P. C. 1021. So, 
 where the indictment described the house, in some of the counts as 
 " a certain outhouse," in others as a " certain house," and the evidence 
 was of a burning of a school-room, separated from the dwelling-house 
 by a small passage, but the roof of one extending over the roof of the 
 other; it was holden that the evidence satisfied the description in both 
 sets of counts. M. v. Winter, R. & R. 295. Where the indictment 
 charged the burning of "a certain house" of the corporation of 
 Liverpool, and the proof was of a burning of a gaol belonging to the 
 corporation, the judges held it to be sufficient. R. v.Donneoaa, 2 W. 
 Bl. 612. But a building constructed as a dwelling-house, but which 
 had not been completed or inhabited, and in which the owner had 
 deposited straw and agricultural implements was holden not to be a 
 house, outhouse, or bam, within the meaning of the repealed statute ; 
 it was not a house in respect of which burglai-y could be committed- 
 it was a house intended for residence, but not inhabited ; and it was 
 not, therefore, a dwelling-house, though it was intended for one: it 
 was not an outhouse, because it was not parcel of a dwelling-house : 
 and it was not a ham, within the meaning of that statute. Elsmore 
 V. St. Briavells, SB. SC. 461. So, an unfinished building, intended, 
 when finished, to be used as a house, is not a "house" within the 
 meaning of 24 & 25 Vict. c. 97, «. 3 ; R. v. Edgell, 11 Cox, 132 ; and 
 quare, whether such unfinished building is a " building" within s. 6 
 of the same statute. Id. So a building erected, not for habitation, 
 but for workmen to take their meals and diy their clothes in, having 
 four walls, a roof, and a door, but no windows, was held not to be a 
 house within the statute ; although a person slept in it with the 
 knowledge, but without the actual permission, of the owner. R. v. 
 England, 1 C. & K. 533. So, an indictment for burning a stote 
 was held not supported by proof of burning a shed, which had been 
 built for and used as a stable originally, but had latterly been used 
 merely as a lumber-shed. R. v. Colley, 2 M. & Rob. 475. An open 
 building in a field, at a distance from and out of sight of the owner's 
 house, though boarded round and covered in, was held not to be an 
 outhouse within the meaning of the repealed statute 7 PF. 4 ife 1 Vict. 
 c. 89, ». 3 ; R. v. Ellison, 1 Mood. C. C. 336. An open shed in a farm- 
 yard, composed of upright posts supporting pieces of wood laid across 
 them, and covered with straw as a roof, was, on the other hand, held 
 to be an outhouse within the 7 TF. 4 c6 1 Vict. c. 89. B. v. StalUm, 
 
Arson. < 511 
 
 1 Mood. C. C. 398. So was a thatched pigstye, in a yard adjoining 
 the prosecntor's house. B. v. Amos Jones, 2 Mood. C. C. 308 ; 1 
 C. <S; K. 303. Where a building, formerly a kiln, but latterly used 
 for keeping a cow, was set fire to, and it appeai-ed that the building 
 was one hundred yards from amy house, and a much greater distance 
 from the house of the owner — Taimton, J., held that it was neither a 
 stable nor an 0Mi/i0MS« within the meaning of the same statute. E. v. 
 EaugUon, b C. 4 P. 555. And where the building fired was a kind 
 of cart-hovel, formed of uprights covered with a stubble-roof, in a 
 field by itself, some distance from any dwdlvag—Vaughan, B., was 
 of opinion that it was not an outhouse, and would have saved the 
 point, but the prisoner was acquitted. R. v. Parrot, H C. d; P. 402. 
 All these distinctions, however, are now rendered immaterial by tlje 
 provisions of the present statute, which extends to " any hovel, shed, 
 or fold, or any farm-building, or any building or erection used in 
 farming land." A building twenty-four feet square, with ' wooden 
 sides, glass windows, slated roof, and commonly called the workshop, 
 used as a storehouse for seasoned timber, as a place for the deposit 
 of tools, and for the working up of timber, was held to be well de- 
 scribed as a "shed" under the repealed act 7 cfc 8 Vict. c. 62, s. 1, 
 which contained the same words. R. v. Amos, 2 Den. 65 ; 20 L. J. 
 (M. C.) 103. 
 
 The house also must be proved to be the house of J. N., in the same 
 manner as in burglary. (Ante, p. 490.) See JR. v. Glandfield, 2 East, 
 P. C. 1034. Where a parish pauper set fire to a house in which he 
 was put to reside by the overseers, and it was not known who the 
 trustees were in whom the legal ownership was vested, it was holden 
 that it might be described as the house of Hie overseers or of persons 
 unknown. R. v. Richman, 2 East, P. C. 1034. And a house, in 
 part of which a man lives, but lets other parts to lodgers, may be de- 
 scribed as his house, even though he be an insolvent debtor, and have 
 assigned the house to his assignee, if the assignee have not taken pos- 
 session : at all events the room in which he lives may be described 
 as his house. R. v. Ball, 1 Mood. C. C. 30. So, if the possession of 
 a house be obtained wrongfully, it may be described as the house of 
 the wrongful occupier. R. v. WalUs, 1 Mood. C. C. 344. At common 
 law, and under the repealed stat. 9 ff. 1, c. 22, it was necessary to 
 describe and prove the house to be the house of another ; but, under 
 the present statute, it is immaterial whether the house be that of a 
 third person or of the defendant himself: for this statute applies, 
 whether the house, etc., be in the possession of the ofiender, or in the 
 possession of any other person. 24 <& 25 Vict. c. 97, «. 3; see also 
 s. 59. 
 
 With Intent, cfc.]— The intent stated in the indictment must be 
 proved as laid. Where the oflFence consists of the setting fire to the 
 house of a third person, the intent to injure that person is inferred 
 from the act, for every person is deemed to intend the necessary con- 
 sequence of his own act ; and therefore where the defendant was in- 
 dicted for setting fire to a certain mill, with intent to injure the oc- 
 cupiers thereof, it was holden that he was properly convicted, although 
 it appeared at the trial that he was a harmless, inoffensive man, and 
 had no motive to induce him to commit the act. E. v. Farrington, R. 
 <&R. 207. (See ante, pp. 208, 209.) But this doctrine can only arise 
 where the act is wilful : and therefore, if the fire appear to be the 
 result of accident, the party who is the cause of it will not be liable. 
 
512 Arson. 
 
 {Ante, p. 608.) On the other hand, where the defendant is charged 
 with setting fire to his own house, the intent to defraud cannot be in- 
 ferred from the act itself, but must be proved by other evidence. 
 Where, therefore, upon an indictment for arson, with intent to de- 
 fraud an insurance company, the policy was inadmissible by reason 
 of its not being stamped, a majority of the judges held that it could 
 not be received in evidence, and as the insurance could not othenrise 
 be proved, the defendant ought to be acquitted. R. v. Gilsm, R. d 
 JR. 138; but eee now 17 <& 18 Vict. c. 83, ». 27, ante, p. 268. So, where 
 a sufficient notice to produce the policy had not been given, it was 
 held that secondary evidence of it could not be given, and there 
 being no other evidence of the insurance, that the defendant must 
 be acquitted. B. v. Kitson, Dears. 187; 22 L. J. (M. C.) 118. The 
 intention must be to injure some person who is not identified with 
 the defendant. Therefore a married woman cannot be indicted for 
 setting fire to the house of her husband with intent to injure him. 
 R. v. March, 1 Mood. C. C. 182. Where, on an indictment for arson, 
 the counsel for the prosecution, in opening the ease, suggested as a 
 naotive for the act the desire to realize the sum insured by the 
 prisoner upon her goods, evidence was admitted to show that she 
 was in easy circumstances, so as to negative the motive suggested. 
 R. V. Chant, i F. & F. 322. 
 
 Indictment for setting Fire to a Church or Chapel, 
 
 Commencement as ante, p. 507] — feloniously, unlawfully, and mali- 
 ciously did set fire to a cirtain church (" any church, chapel, meeting- 
 house, or other place of divine worship") situate at the parish of B,, in 
 the county of M.; against the form [as ante, p. 347]. 
 
 Felony : 24 & 25 Vict. c. 97, s. 1. See the last precedent. 
 
 This offertce is not triable at quarter sessions, b <& 6 Vict. c. 38, «. 1 
 {ante, p. 104). 
 
 Evidence. 
 
 Prove that the defendant set fire to the church or chapel, situate as 
 described in the indictment. {See ante, p. 509.) The stat. 7 <fc 8 
 G. i, c. 30, s. 8, was directed against the arson of any " church or 
 chapel, or chapel for the religious worship of persons dissenting from 
 the United Church of England and Ireland duly registered or re- 
 corded." Under that statute, therefore, it was necessary to prove, 
 where a dissenting chapel was burned, that it had been duly regis- 
 tered or recorded. The 7 TF. 4 <fe 1 Vict. c. 89, s. 3, which was 
 substituted for that enactment, did not contain the words in italics, 
 nor are they found in the 24 <& 25 Vict. c. 97, s. 1, which has replaced 
 the 7 TF. 4 c6 1 Vict. c. 89, s. 3. Where the burning of a dis- 
 senting chapel forms the subject of an indictment, it does not seem, 
 therefore, to be necessary to prove that the chapel has been registered 
 or recorded. 
 
 Indictment for setting Fire to a Souse, some Person being therm. 
 
 Commencement as ante, p. 507] — feloniously, unlawfully, and mali- 
 ciously did set fire to a certain dwelling-house Q^any dwelling-house") 
 
Arson. 513 
 
 of J. N., situate at the parish of B., in the county of M., one J. L., 
 and M., his wife, then, to wit, at the time of the committing of the 
 felony aforesaid, being in the said dwelling-house ; against the form 
 {as ante, p. 347] . The defendant cannot, upon this indictment, be con- 
 victed under s. 3 {ante, p. 508), because under that section an intent to 
 injure or defraud some person must be alleged. B. v. Paice, 1 C. iSJ" 
 K. 73. 
 
 Felony: penal servitude for life or for not less than five [27 Sf 28 
 7iet. c. 47, s. 2, ante, p. 1 73] years, or imprisonment not exceeding two 
 years, with or without hard labour, and with or without solitary con- 
 finement {such confinement not exceeding one month at any one time, 
 nor three months in any one year, 24 ^ 25 Vict. c. 97, s. 75, ante, p. 
 507) ; and, if a male under sixteen years, with or without whipping, 
 —24 Sf 25 Vict. c. 97, s. 2, ante, p 503. As to requiring the ojffender 
 to enter into recognizances and find sureties for keeping the peace, 
 Id. s. 73, ante, p. 507. 
 
 This offence is not triable at quarter sessions. 5^6 Vict. e. 38, 
 *, 1 {ante, p. 104). 
 
 Evidence. 
 
 Prove that the defendant wilfully set fire to the dwelling-house 
 (see ante, pp. 608, 609); and that at the time J. L. and his wife were 
 in the house. It is not sufficient to prove that they were in the house 
 at the time when the defendant set fire to an adjoining building, from 
 which the flames communicated to the house, they having then left 
 it. B. V. Fletcher, 2 C. <& K. 215. 
 
 SETTING FIRE TO MINES. 
 
 24 S 25 Vict. c. 97, s. 26.] — Whosoever shall unlawfully and ma:- 
 liciously set fire to any mine of coal, cannel coal, anthracite, or other 
 mineral fuel shall he guilty of felony, and being convicted thereof 
 shall be liable, at the discretion of the court, to be kept in penal 
 servitude for life, or for any term not less than three years [now five 
 years, 27 & 28 Vict, c.il, s. 2, ante, p. 173], or to be imprisoned for 
 any term not exceeding two years, with or without hard labour, and 
 with or without solitary confinement, and, if a male under the age of 
 sixteen years, with or without whipping. 
 
 Sect, il— Attempting to set Fire to Jfmes.]— Whosoever shall un- 
 lawfully and maliciously by any overt act attempt to set fire to any 
 mine, under such circumstances that if the mine were thereby set fire 
 to the offender would be guilty of felony, shall be guilty of felony, 
 and being convicted thereof shall be liable, at the discretion of the 
 court, to be kept in penal servitude for any term not exceeding 
 fourteen and not less than tliree years [now five years, 27 (6 28 
 Vict. c. 47, s. 2, ante, p. 173], or to be imprisoned for any tenn not 
 exceeding two years, with or without hard labour, and with or with- 
 out solitary confinement, and, if a male under the age of sixteen 
 years, with or without whipping. 
 
 z5 
 
514 Arson. 
 
 Indictment for setting Fire to a Coal Mine. 
 
 Commencement as ante, p. 507] — feloniously, unlawfully, and mali- 
 ciously did set fire to a certain mine of coal (" any mine of coal, cannel 
 coal, anthracite, or other mineral fuel ") of J. N., situate at the parish 
 of B., in the county of M.; against the form [as ante, p. 347], 
 
 Felony : penal servitude for life or for not less than five [27 if 28 
 Vict. e. 47, s. 2, ante, p 173] years, or imprisonment not exceedim 
 two years, with or without hard labour, and with or without solitary 
 confinement I such confinement not exceeding one month at any one 
 time, nor three months in any one year, 24 Sf 25 Viet. c. 97, s. 75 
 {ante, p. 507); and, if a male under sixteen years, with or viithout 
 mhippinff. — 24 Sf 25 Vict. e. 97, s. 26. As to requiring the offender 
 to enter into recognizances and find sureties for keeping the peace, Id. 
 s. 73, ante, p. 507. 
 
 This offence is not triable at quarter sessions. 5^6 Vict, c, 38, 
 s. 1 (ante, p. 104). 
 
 Evidence. 
 Prove that the defendant set fire to the mine, in the occupation of 
 J. N., as described in the indictment. {See ante, pp. 609, 511.) It is 
 equally an offence within this act to set fire to a mine in the posses- 
 sion of the party himself, where it is proved to be done with intent to 
 injure or defraud any other person : s. 59, ante, p. 505. — See ante, p. 
 511. 
 
 SETTING FIEE, ETC., TO SHIPS. 
 
 Statute. 
 24 S 25 Vict. c. 97, s. 42.]— Whosoever shall unlawftdly and mali- 
 ciously set fire to, cast away, or in anywise destroy, any ship or 
 vessel, whether the same be complete or in an unfinished state, shall 
 be guilty of felony, and being convicted thereof shall be liable, at 
 the discretion of the court, to be kept in penal servitude for life, or 
 for any term not less than three years \now five years, 27 & 28 Viet. c. 
 47, 8. 2, ante,p. 173], or to be imprisoned for any term not exceeding 
 two years, with or without hard labour, and with or without solitary 
 confinement, and, if a male under the age of sixteen years, with or 
 without whipping. 
 
 Sect. 43.] — Whosoever shall unlawfully and maliciously set fire to, 
 or cast away, or in anywise destroy, any ship or vessel, with intent 
 thereby to prejudice any owner or part-owner of such ship or vessel, 
 or of any goods on board the same, or any person that has under- 
 written or shall underwrite any policy of insurance upon such ship or 
 vessel, or on the freight thereof, or upon any goods on board the 
 same, shall be guilty of felony, and being convicted thereof shall be 
 liable, at the discretion of the court, to be kept in penal servitude for 
 life, or for any term not less than three years [now fme years, 27 i 
 28 Vict. c. 47, s. 2, ante, p. 173], or to be imprisoned for any term 
 not exceeding two years, with or without hard labour, and with or 
 without solitary confinement, and, if a male under the age of sixteen 
 years, with or without whipping. 
 
 Sect. 44 — Attempting to set Fire to Ships.l — Whosoever shall unlaw- 
 
Arson. 515 
 
 fully and maliciously, by any overt act, attempt to set fire to, cast 
 away, or destroy any ship or vessel, under such circumstances that if 
 the ship or vessel were thereby set fire to, cast away, or destroyed, 
 the oflfender would be guilty of felony, shall be guilty of felony, and 
 being convicted thereof shall be liable, at the discretion of the court, 
 to be kept in penal servitude for any term not exceeding fourteen 
 and not less than three years [now Jive years, 27 d: 28 Vict. c. 47, s. 2, 
 ante, p. 173], or to be imprisoned for any term not exceeding two 
 years, with or without hard labour, and with or without solitary con- 
 finement, and, if a male under the age of sixteen years, with or 
 without whipping. 
 
 Indictment. 
 
 Cornwall, to wit : — The jurors for our lady the Queen upon their 
 oath present, that J. S., on the first day of June, in the year of our 
 
 Lord_ , feloniously, unlawfully and maliciously did set fire to a 
 
 certain ship (" any ship or vessel, whether the same be complete or in 
 an imfinished state") called the 'Battler,' the property of J. N. ; 
 against the form [as ante, p. 347]. If the offence he committed upon 
 the high seas, see the next precedent. 
 
 Felony: penal servitude for life or for not less than five [27 <& 2S 
 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment not exceeding two 
 years, with or without hard labour, and with or without solitary con- 
 finement (smch confinement not exceeding one month at any one time, nor 
 three months in any one year, 24 d 25 Vict. c. 97, s. 75, anie^p. 507) ; 
 amd, if a male tmder sixteen years, with or without whipping. — 24 & 25 
 Vict. c. 97, s. 42. As to requiring the offender to enter into recognizances 
 amd find sureties for keeping the peace, Id. s. 73, ante, p. 507. 
 
 This offence is not triable at quarter sessions. 5 tfc 6 Vict c 38 
 s. 1 (ante, p. 104). ' 
 
 Hvidence. 
 Prove that the defendant set fire to the ship. (See ante, p. 509 ) 
 It IS immaterial whether the,ship were complete or in an unfinished 
 state. 24 <& 25 net. c. 97, s. 42. A pleasure boat, eighteen feet 
 long, was set fire to, and Fatteson, J., inclined to think that it was a 
 vessel withm the meaning of the act, but the prisoner was acquitted 
 
 ??i p'^Iq 't"?"^ °° ^^^'^^^ °P™°° ^^^ gi'^en- -B- ">'■ Sm^er, 4 
 hf rt=; t;., ^P-" ^"^ indictment for firing a barge, AldersSn, J., 
 Z l,!^l *P" wl' ^^ convicted he would take the opinion of 
 It, to^*^ *' ° ''''®*^' ^ ^^""Se was within the meaning of the 
 Prn^» A t vP™°"f "^^^ acquitted. B. v. Smith, 4 C. & P. 569 
 rrove that it was done maliciously (see ante, p. 508), and prove the 
 ownership of the ship as described in the indictment ' Where upo^ 
 an mdictmen against the defendant for setting fire to a stoTth 
 defrndi°tHl"f \'^.% his part-owners, ft appeared tKe 
 sale waTrirni.!^ if ^ that E and G. were part-owners, and a bHl of 
 
 w rel'LsWd W?^;'^T\^°'^yf ""'^ sixty-fourths of the vessel 
 were irauslerred by the defendant, the sole owner, to E and G- ■ and 
 
 "CustomHnT,:V',%'°1? I' '^Sistry, in the foUowirg form •- 
 Lustom House, Padstow, nth August, 1829. WP ofetc has sold 
 
 bui'of salfw^s'nnV. f'A^"''^' «*«-'-a"d it was objected that the 
 Dui ot sale was not valid, because by statute 6 O. 4, c. 110 « 37 the 
 entry must contain not only the dat'e of the bill of 'sale, but also the 
 
516 Arson. 
 
 date of the production of it, the judge thought that the date, 11th 
 August, in tlie commencement of the entry, might be considered as 
 the date of the production of it, particularly as the entry followed 
 the form given by the statute ; and it was holden that the defendant 
 was properly convicted. E. v. Philp, 1 Mood. C. C. 263. Indeed, 
 it would seem that acts of ownership would of themselves he suffi- 
 cient to prove this allegation, liable however, to be rebutted by the 
 entry in the register. The burning of a ship, of which the defendant 
 was a part-owner, is within the statute. R. v. Wallace, C. d Mar. 
 200. (See s. 59, ante, p. 505.) 
 
 Indictment for setting Fire to a Ship, with Intent, etc. 
 
 Yorkshire, to wit: — The jurors for our lady the Queen upon their 
 oath present, that J. S., on the first day of August, in the year of our 
 
 Lord , on board a certain ship called the ' Battler,' the property 
 
 of J. N., on a certain voyage upon the high seas, then being upon 
 the high seas, feloniously, unlawfully, and maliciously did set fire to 
 the said ship (" any ship or vessel"), with intent thereby to prejudice 
 the said J. N., the owner (" owner or part-owner"') of the said ship; 
 [or, one E. F., the owner of certain goods, then laden and being on 
 board the said ship; or, one E. P., who had before then underwritten 
 a certain policy of assurance on the said ship {or, on the freight of 
 the said ship; or, on certain goods then being on board the said 
 ship), which said policy was then in full force and operation ("iJe 
 owner or part-owner of such ship or vessel, or of any goods ore hoard 
 the same, or any person who has underwritten or shall underwrite any 
 policy of insurance upon such ship or vessel, or on the freight thereof, 
 or upon any goods on board the same")(] against the form [as ante, 
 p. 347] . The intent may be stated in different ways in different cowitt, 
 (See B. V. Smith, i C. S P. 569: B. v. Bowyer, Id. 559.) As to Ih 
 venue, see ante, p. 30. 
 
 Felony : 24 c6 25 Vict. c. 97, s. 43. See the last precedent. 
 
 This offence is not triable at quarter sessions. 5 cfe 6 Viet, c. 38, s. 1 
 (ante, p. 104). 
 
 Evidence. 
 
 If the intent be laid to prejudice the owner of the ship or goods, 
 prove the case as directed under the last form ; and in the latter case 
 prove the shipment of the goods. In B. v. Philp, 1 Mood. C. C. 263, 
 there was no proof of malice against the owners, and the ship was 
 insured for more than its value; but the judge thought that the de- 
 fendant must be understood to contemplate the consequences of his 
 act; and the judges held that, as to this point, the conviction was 
 right. See B. v. Nevnll, 1 Mood. C. C. 458. The destmction of a 
 vessel by a part-owner shows an intent to prejudice the other part- 
 owners, though he has insured the whole ship, and promised that the 
 other part-owners shall have the benefit thereof. Id. See R. v. 
 Wallaee, C. & Mar. 200, supra. The underwriters on a policy of 
 goods fraudulently made are within the statute, though no goods he 
 put on board. S. C, 2 Mood. C. C. 200. 
 
 If the intent be laid to prejudice the underwriters, then, in addition 
 to this evidence, prove the policy (see ante, p. 612: B. v. Gilson, B. 
 d B. 138), and that the ship sailed on her voyage. 
 
Anon. 517 
 
 It wouH seem, however, that the general proTision of the 42nd 
 section of this statute renders unnecessary in any case the allegation 
 or proof of the intent mentioned in the 43rd section. 
 
 Indictment for setting Fire to Ships of War, etc. 
 An indictment for setting on fire or burning ships of war may be 
 in the same form as the precedent, ante, p. 515, except as to the de- 
 scription of the property, namely, "any of her Majesty's vessels of 
 war in her Majesty's dockyards, or any private yards, or any timber 
 there placed for building or repairing the same, or any military, naval, 
 or victualling stores, or other munitions of war, or any place where 
 the same shall be kept." 12 G. 3, a. 24, s. 1. And the same as to 
 setting on fire " any of the works, or any ship or other vessel lying in 
 or being on the canal, or in any of the docks, basins, cuts, or other 
 works;" made by virtue of the stat. 39 G. 3, c. 69, for regulating the 
 port of London. The act to make provision for the discipline of the 
 navy, 27 d 28 Vict. c. 119, s. 30, enacts that every person subject to 
 that act who shall unlawfully set fire to any dockyard, victualling 
 yard, or steam factory yard, arsenal, magazine, building, stores, or to 
 any ship, vessel, hoy, barge, boat, or other craft, or furniture there- 
 unto belonging, not being the property of an enemy, pirate, or 
 rebel, shall suffer death or such other punishment as is therein 
 mentioned. 
 
 ATTEMPTING TO SET PIKE TO BUILDINGS, ETC. 
 
 Statute. 
 
 _ 24 c6 25 Vict. c. 97, s. 8.]— Whosoever shall unlawfully and mali- 
 ciously, by any overt act, attempt to set fire to any building, or 
 any matter or thing in the last preceding section mentioned (s. 7, 
 ante, p. 504), under such circumstances that if the same were thereby 
 set fire to the offender would be guilty of felony, shall be guilty of 
 felony, and being convicted thereof shall be liable, at the discretion 
 of the court, to be kept in penal servitude for any term not exceeding 
 fourteen and not less than three years [now five years, 27 oB 28 
 Vict. c._47, s. 2, ante, p. 173], or to be imprisoned for any term not 
 exceeding two yeavs,with or without hard labour,,and with or without 
 solitary confinement, and, if a male under the age of sixteen years, 
 with or without whipping. 
 
 Indictment. 
 _ Commencement as ante, p. 507]— feloniously, unlawfully, and mali- 
 ciously did attempt, by then, etc. (state the overt act—" by any overt 
 act") feloniously, unlawfully, and maliciously, to set fire to a certain 
 dwelling-house ("any building, or any matter or thing ' being in, against, 
 or under any building,' under such circumstances that if the same were 
 thereby set fire to, the offence would ammnt to felony") of J. N., situate 
 at the parish of B., in the county of M., with intent thereby then to 
 injure the said J. N.; against the form [as ante, p. 347]. 
 
618 Arson. 
 
 Felony : penal servitude for not more than fourteen and not less than 
 five [27 d 28 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment not 
 exceeding two years, with or loithout hard labour, and with or without 
 solitary confinement (such confinement not exceeding one calendar month 
 at any one time, nor three calendar months in any one year, 24 <& 25 Vict. 
 c. 97, s. 75, ante, p. 507) ; and, if a male under sixteen years, with or 
 without whipping. — 24 <& 25 Vict. e. 97, s. 8. As to requiring the 
 offender to enter into recognizances and find sureties for keeping the 
 peace, Id. s. 73, amte, p. 507. 
 
 Prove ttat the defendant attempted, by the means stated in the 
 indictment, wilMly to set fire to the house; and that it was the 
 dwelling-house of J. N., and situate as described in the indictment, 
 (See ante, p. 508.) And prove circumstances from which the jury 
 may infer the intent as laid. (See ante, pp. 208, 235.) In many 
 cases no allegation or proof of intent will be necessary: (see ss. 1, 2, 
 4, 5, 6, 7, ante, pp. 503, 504.) Wilfully throwing a light into a post- 
 office letter box in a house with intent to burn the letters, but not 
 the house, is not a felony within this enactment. R. v. BatstoM, 10 
 Cox, 20. 
 
 SETTINa FIRE TO CROPS, STACKS, ETC. 
 
 Statute. 
 
 24 <fc 25 Vict. c. 97, s. 16 — Setting Fire to Crops, efc.]— Whosoever 
 shall unlawfully and maliciously set fire to any crop of hay, grass, 
 corn, grain, or pulse, or of any cultivated vegetable produce, whether 
 standing or cut down, or to any part of any wood, coppice or plan- 
 tation of trees, or to any heath, gorse, furze, or fern, wheresoever the 
 same may be growing, shall be guilty of felony, and being convicted 
 thereof shall be liable, at the discretion of the court, to be kept in 
 penal servitude for any term not exceeding fourteen and not less 
 than three years \nowfive years, 27 & 28 Vict. c. 47, s. 2, ante,p.VlS], 
 or to be imprisoned for any term not exceeding two years, with or 
 ■without hard labour, and with or without solitary confinement, and, 
 if a male under the age of sixteen years, with or without whipping. 
 
 Sect. 17 — Setting Fire to Stachs, etc.'] — Whosoever shall unlawfully 
 and maliciously set fire to any stack of corn, grain, pulse, tares, hay, 
 straw, haulm, stubble, or of any cultivated vegetable produce, or of 
 furze, gorse, heath, fern, turf, peat, coals, charcoal, wood, or bark, or 
 to any steer of wood or bark, shall be guilty of felony, and being 
 convicted thereof shall be liable, at the discretion of the court, to 
 be kept in penal servitude for life or for any term not less than three 
 years Inowfive years, 27 S 28 Vict. c. 47, s. 2, ante, p. 173], or to be 
 imprisoned for any term not exceeding two years, with or without 
 hard labour, and with or without solitary confinement, and, if a male 
 under the age of sixteen years, with or without whipping. 
 
 Sect. 18 — Attempting to set Fire to Crops or Stacks.] — Whosoever 
 shall unlawfiilly and maliciously by any overt act attempt to set fire 
 to any such matter or thing as in either of the last two preceding 
 
Arson. 619 
 
 sections mentioned, under such circumstances that if the same were 
 thereby set fire to the offender would be, under either of such sec- 
 tions, guilty of felony, shall be guilty of felony, and being convicted 
 thereof shall be liable, at the discretion of the court, to be kept in 
 penal servitude for any term not exceeding seven and not less than 
 three years [now five years, 27 & 28 Vict. o. 47, s. 2, ante, p. 173], 
 or to be imprisoned for any term not exceeding two years, with 
 or without hard labour, and with or without solitary confinement, 
 and, if a male under the age of sixteen years, with or without 
 whipping. 
 
 Indictment for setting Fire to Stacks of Com, etc. 
 
 Commencement as ante, p. 507] — feloniously, unlawfully, and ma- 
 liciously did set fire to a certain stack of wheat (" any stack of com, 
 grain, pulse, tares, hay, straw, haulm, stubble, or of any cultivated 
 vegetable produce, furze, gorse, heath, fern, turf, peat, coals, charcoal, 
 wood or bark, or any steer of wood or bark") of J. N. ; against the 
 form [as cmte, p. 347]. Where the word " unlawfully" was omitted; 
 the judges held the indictment to be bad. R. v. Turner, 1 Mood. C. C. 
 239. No intent need be stated. R. v. Newill, Id. 458. 
 
 Felony : penal servitude for life or for not less than five [27 c§ 28 
 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment not exceeding two 
 years, with or without hard labour, and with or without solitary con- 
 finement {such confinement not exceeding one month at any one time, nor 
 three months in amy one year, 24 d: 25 Vict. c. 97, s. 75, ante, p. 507) ; 
 and, if a male vjnder sixteenyears, with or without whipping. — 24 & 25 
 Vict. c. 97, s. 17. As to requiring the offender to enter into recog- 
 ninamces, and fimd sureties for keeping the peace. Id. s. 73, cmte, p. 
 507. 
 
 This offence is not triable ai quarter sessions. 5 c6 6 Vict. c. 38, s. 1 
 {mte, p. 104). 
 
 Evidence. 
 
 Prove that the defendant wilfully set fire to the stack of wheat, 
 etc., as stated in the indictment (see ante, p. 508) ; and prove the 
 ownership of the property. An indictment for setting fire to a 
 stack of beans, R. v. Woodward, 1 Mood. C. C. 323; or barley, R. v. 
 Swatkvns, iC.&P. 548, is good ; for the court will take notice that 
 beans are pulse, and barley corn ; but it was said before the last 
 statute, that a stack of stubble (not included in the repealed statute) 
 could not be described as a stack of straw. R. v. Reader, 4: C. <& P. 
 245. A stack composed of the flax-plant with the seed or grain in it 
 (the jury finding that the flax-seed is a grain) was held to be a stack 
 of grain within the repealed stat. 7 W. i d 1 Vict. c. 89, s. 10 R. 
 Y. Spencer, Dears. & B. 131 ; 26 L. J. {M. C.) 16. The prisoner was 
 mdicted for setting fire to a stack of wood, and it appeared that the 
 -wood set fire to consisted of a score of faggots heaped on each other 
 m a temporary loft over the gateway : Park, J., held this not to be 
 a stack of wood. R. v. Ans, 6 C. <& P. 348. Upon a repealed 
 statute, which did not contain the word " haulm," or the words " any 
 cultivated vegetable produce," it was holden that an indictment for 
 setting fire to a stack of straw was not supported by proof that the 
 stack was composed partly of stubble and partly of coleseed straw. 
 R.y. Tottenham, IC.&P. '23,1 ; 1 Mood. C. C 461. The offence is 
 not of a local nature. R. y. Woodwan-d, 1 Mood. C. C. 323. 
 
520 • Arson. 
 
 Indictment for setting Fire to Crops of Com, etc. 
 
 Commencement as ante, p. 507] — feloniously, unlawfully, and ma- 
 liciously did set fire to a certain crop of wheat (" any crop of hay 
 grass, com, grain, or pulse, or of any cultivated vegetable prodwe 
 whether stcmding or cut dovm, or any part of any wood, coppice or 
 plantation of trees, or any heath, gorse,furze, or fern, wheresoeeer the 
 same may be growing"), of the goods and chattels of J. N., then 
 standing and growing ; against the form [as ante, p. 347]. 
 
 Felony: penal servitude for not more than fourteen and not less thm 
 five [27 & 28 Vict. c. 4:1, s. 2, ante, p. 173] years, or imprisonment not 
 exceeding two years, with or without hard labour, and with or without 
 solitary confinement (such confinement not exceeding one mordh at my 
 one time, nor three m,onths in any one year, 24 c6 25 Vict. e. 97, s. 76, 
 ante, p. 507) ; and, if a male under sixteen years, viith or without 
 whipping. — 24 c& 25 Vict. c. 97, s. 16. As to requiring the offender to 
 enter into recognizances and find sureties for keeping the peace. Id. s. 73, 
 ante, p. 507. 
 
 Unlawfully and maliciously setting fire to crops of com, grain, or 
 pulse, or to any part of a wood, coppice, or plantation of trees, or to 
 any heath, gorse, furze or fern, is not triable at quarter sessiom. 5 & 
 6 Vict. c. 38, s. 1 {ante, p. 104). That statute, however, does not ex- 
 clude from the jurisdiction of sessions the setting fire to crops of hay or 
 grass, or to crops of any cultivated vegetable produce, other than of 
 com, grain, or pulse. 
 
 Evidence. 
 
 Prove that the defendant set fire to the crop of wheat, etc., as stated 
 in the indictment, and prove the ownership of the property. See the 
 last precedent. 
 
 Where the defendant set fire to a summer-house in a wood, and 
 the fire was thence communicated to the wood, he was held to be 
 properly convicted on an indictment charging him with setting fire 
 to the wood. It. v. Price, 9 C. <& P. 729 {see ante, p. 508). 
 
 Sect. 6. 
 malicious mischief. 
 
 BLOWIN& UP DWELLING-HOUSES, ETC. 
 
 Statute. 
 24 <fe 25 Vict. c. 97, s. 9.]— Whosoever shall unlawfiiUy and mali- 
 ciously, by the explosion of gunpowder or other explosive substance, 
 destroy, throw down, or damage the whole or any part of any dwell- 
 ing-house, any person being therein, or of any building, whereby tlie 
 life of any person shall be endangered, shall be guilty of felony, and 
 being convicted thereof shall be liable, at the discretion of the court, 
 to be kept in penal servitude for life, or for any term not less than 
 three years [now five years, 27 <£ 28 Vict. c. 47, «. 2, ante, p. 173], or 
 to be imprisoned for any term not exceeding two years, with or 
 
Malicious Mischief. 521 
 
 ■without hard labour, and with or without solitary confinement, and, 
 if a male under the age of sixteen years, with or without whipping. 
 
 Sect. \0— Attempting to blow up Buildings, cfc.]— Wlosoever shall 
 unlawfully and maliciously place or throw in, into, upon,_ under, 
 against, or near any building, any gunpowder or other explosive sub- 
 stance, with intent to destroy or damage any building, or any engine, 
 machinery, working-tools, fixtures, goods, or chattels, shall, whether 
 or not any explosion take place, and whether or not any damage be 
 caused, be guilty of felony, and being convicted thereof shall be 
 liable, at the discretion of the court, to be kept in penal servitude for 
 any term not exceeding fourteen and not less than three years [now 
 jke years, 27 & 28 Vkt. c. 47, s. 2, ante, p. 173], or to be imprisoned 
 for any term not exceeding two years, with or without hard labour, 
 and with or without solitary confinement, and, if a male under the 
 age of sixteen years, with or without whipping. 
 
 Sect. 54 — Manufacturing, etc., explosive Substances, etc., for the pur- 
 pose of committing Offences.'] — Whosoever shall make or manufacture, 
 or knowingly have in his possession, any gunpowder or other explo- 
 sive substance, or any dangerous or noxious thing, or any machine, 
 engine, instrument, or thing, with intent thereby or by means thereof 
 to commit, or for the purpose of enabling any other person to com- 
 mit, any of the felonies in this act mentioned, shall be guilty of a 
 misdemeanor, and being convicted thereof shall be liable, at the 
 discretion of the court, to be imprisoned for any term not exceeding 
 two years, with or without hard labour, and with or without solitary 
 confinement, and, if a male under the age of sixteen years, vrith or 
 without whipping. 
 
 Indictment for destroying hy Explosion part of a Dwelling-house, some 
 Person being therein. 
 
 _ Commencement as ante, p. 507] — feloniously, unlawfully, and mali- 
 ciously did, by the explosion of a certain explosive substance, that is 
 to say, gunpowder, destroy (" destroy, throw down or damage") a 
 certain part (" (he whole or any part") of the dwelling-house of J.N., 
 situate at the parish of B., in the county of M., one A. N. then being 
 in the said dwelling-house; against the form [as ante, p. 347]. Add 
 counts for " throwing down" and " damaging" part of the dwelling- 
 house. 
 
 Felony: penal servitude for life or for not less than five [27 <& 28 
 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment, vjith or without 
 hard labour, and with or without solitary confinement (such confinement 
 not exceeding one calendar month at any one time, nor three calendar 
 months in any one year, 24 (& 25 Vict. c. 97, s. 75, ante, p. 507) not 
 exceeding two years; and, if a male under sixteen years, with or with- 
 out whipping.— U & 25 Vict. c. 97, s. 9. As to requiring the offender 
 to enter into recognizances and find sureties for keeping the peace. Id. 
 s.73,ante,p.50T. J r i/ r , 
 
 This' offence is not triable at quarter sessions. 5 <£ 6 Vict. c. 38, s. 1 
 (ante, p. 104). 
 
 Evidence. 
 Prove that the defendant, by himself or with others, destroyed, or 
 was present aiding and abetting in the destruction of, some part of 
 
522 Malicious Mischief. 
 
 the dwelling-house in question, by the explosion of gunpowder or 
 other explosive substance mentioned in the indictment. It is appre- 
 hended that a destruction, etc., of some part of the freehold must be 
 shown, by analogy to the decisions under the 7 cfc 8 G. 4, c. 30, ». 8 
 (see post, p. 524). It has been held that firing a gun loaded with 
 powder through the keyhole of the door of a house, in which were 
 several persons, and by which the lock of the door was blown to 
 pieces, is not within the meaning of s. 9 of 24 (6 25 Vict. c. 97. S. 
 V. Brown, 3 F. d: F. 821. Prove that it was the dwelling-house of 
 J. N., and situate as described in the indictment. Prove that the 
 act was done maliciously, i. e. wilfully, and not by accident {See 
 cmte, p. 508.) Prove also that A. N. was in the house at the time of 
 the setting fire to it. (See ante, p. 508.) No intent need be laid or 
 proved. 
 
 Indictment for Blowing up a House whereby Life was endangered. 
 
 Commencement as ante, p. 507] — feloniously, unlawflilly, and mali- 
 ciously did, by the explosion of a certain explosive substance, that is 
 to say, gunpowder, destroy (" destroy, throw down or damage") the 
 dwelling-house of J. N., situate at the parish of B., in the county of 
 M., whereby the life of one A. N. was then endangered; against the 
 form [as ante, p. 347]. Add a count for " damaging" the house miih 
 the like consequence. 
 
 Felony: 24 <fc 25 Vict. e. 97, s. 9. See the last precedent. 
 
 This offence is not triable at qua/rter sessions. 6 c6 6 Vict. c. 38, «. 1 
 {ante, p. 104). 
 
 Ettidence. 
 
 Prove that the defendant destroyed or damaged the house in ques- 
 tion, or was present aiding and abetting the destruction or damaging 
 of it by the explosion of gunpowder or other explosive substance 
 mentioned in the indictment. Prove that it was the dwelling-house 
 of J. N., and situate as described in the indictment. Prove that the 
 act was done maliciously, i. e. wilfully. (See ante, p. 508.) And 
 prove that the life of A. N. was endangered by the defendant's act. 
 This will depend of course, in almost all cases, on medical evidence. 
 
 Indictment for throwing Gimpowder into a House, with Intent, etc. 
 
 Commencemeni as ante, p. 507] — feloniously, unlawfully, and mali- 
 ciously did throw into the dwelling-house of J. N., situate at the 
 parish of B., in the county of M. (^' place or throw in, into,upott, under, 
 against, or near any building") a large quantity, to wit, two pounds 
 of a certain explosive substance, that is to say, gunpowder, with 
 intent thereby then to destroy (" destroy or damage") the said dwell- 
 ing-house; against the form [as ante, p. 347]. Add counts varyiiig^ 
 the statement of the act, and also stating the intent to be to " damage 
 the house. 
 
 Felony : penal servitude for not more than fourteen and not less than 
 Jive [27 (6 28 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment, 
 with or without hard labour, and with or without solitary confinement 
 (such confinement not exceeding one month at any one time, nor three 
 months in any one year, 24 tfe 25 Vict. c. 97, s. 75, ante, p. 507) not 
 
Malicious Mischief. 523 
 
 exceeding two years; and, if a male under the age of sixteen, with or 
 idthout whipping-U & 25 Vict. c. 97, ». 10. As to requiring the 
 offender to enter into recognizances amdfind sureties for keeping the peace, 
 id. s.lS,ante,p.507. 
 
 Prove the act done by the defendant, as alleged in the indictment; 
 that it was done wilfully; that the house was the dwelling-house of 
 J.N., situate as described in the indictment; and prove circum- 
 stances from which the jury may infer the intent to destroy or 
 damage the house, as stated in the indictment. Where the prisoner 
 was indicted under 24 * 25 Vict. c. 97, s. 10, for throwing gunpowder 
 against a house, and the evidence was that the prisoner had thrown 
 a bottle containing gunpowder against the house, and that there was 
 a fuse in the neck of the bottle, Kelly, C. B., ruled that unless the 
 fuse was lighted at the time the bottle was thrown against the house 
 the offence was not made out. His lordship said that, " if anybody 
 merely threw a bottle containing gunpowder, that would not comply 
 ■with the conditions of the statute. If the fuse was not lighted it 
 could not cause an explosion, and it would be merely throwing a 
 bottle against a house." M. v. Sheppard, 11 Cox, 302. 
 
 RIOTOUSLY DEMOLISHING HOUSES, ETC. 
 
 24 (§ 25 Vict. c. 97, s. 11.] — If any persons, riotously and tumul- 
 tuously assembled together to the disburbance of the public peace, 
 shall unlawfully and with force demolish, or pull down, or destroy, 
 or begin to demolish, pull down, or destroy, any church, chapel, 
 meeting-house, or other place of divine worship, or any house, stable, 
 coach-house, out-house, warehouse, office, shop, mill, malt-house, 
 hop-oast, barn, granary, shed, hovel, or fold, or any building or erec- 
 tion used in farming land, or in carrying on any trade or manufac- 
 ture, or any branch thereof, or any building, other than such as are 
 in this section before mentioned, belonging to the Queen, or to any 
 county, riding, division, city, borough, poor law union, parish, or 
 place, or belonging to any university or college or hall of any uni- 
 versity, or to any inn of court, or devoted or dedicated to public 
 use or ornament, or erected or maintained by public subscription or 
 contribution, or any machinery, whether fixed or moveable, prepared 
 for or employed in any manufacture, or in any branch thereof, or 
 any steam-engine or other engine for sinking, working, ventilating, 
 or draining any mine, or any staith, building, or erection used in 
 conducting the business, of any mine, or any bridge, waggon-way, or 
 trunk for conveying minerals from any mine, every such offender 
 shall be guilty of felony, and being convicted thereof shall be liable, 
 at the discretion of the court, to be kept in penal servitude for life, 
 or for any term not less than three years [now five years, 27 & 28 
 Vict. c. 47, s. 2, ante, p. 173], or to be imprisoned for any term not 
 exceeding two years, with or vrithout hard labour, and with or with- 
 out solitary confinement. 
 
 Sect. 12—Biotomly damaging Houses, etc.'] — If any persons, riot- 
 
524 Malicious Mischief. 
 
 ously and tumultuously assembled together to the disturbance of the 
 public peace, shall unlawfully and with force injure or damage any 
 such church, chapel, meeting-house, place of divine worship, house 
 stable, coach-house, out-house, warehouse, office, shop, mill, malt- 
 house, hop-oast, bam, granary, shed, hovel, fold, building, erection, 
 machinery, engine, staith, bridge, waggon-way, or trunk, as is in the 
 last preceding section mentioned, every such offender shall be guilty 
 of a misdemeanor, and being convicted thereof shall be liable, at the 
 discretion of the court, to be kept in penal servitude for any terra 
 not exceeding seven yeats and not less than three years \now jim 
 years, 27 & 28 Vict. c. 47, s. 2, ante, p. 173], or to be imprisoned for 
 any term not exceeding two years, with or without hard labour: 
 Provided that, if, upon the trial of any person for any felony in the last 
 preceding section mentioned, the jury shall not be satisfied that such 
 person is guilty thereof, but shall be satisfied that he is guilty of any 
 offence in this section mentioned, then the jury may find him guilty 
 thereof, and he may be punished accordingly. 
 
 iTtdictment. 
 
 Central Criminal Court, to wit: — The jurors for our lady the Queen 
 upon their oath present, that on the first day of June, in the year of 
 
 our Lord , at the parish of B., in the county of M., J. S., J. W., 
 
 and E. W., together with divers other evil-disposed persons, to the 
 jurors aforesaid unknown, unlawfully, riotously and tumultuously did 
 assemble together, to the disturbance of the public peace: and being 
 then and there so unlawfully, riotously and tumultuously assembled 
 together as aforesaid, did then and there feloniously, unlawfully and 
 with force, begin to demolish and pull down the dwelling-houae of 
 one J. N. there situate (" any church, chapel, etc., house, etc"); against 
 the form [as ante, p. 347]. 
 
 Felony : penal servitude for life or for not less than five [27 & 28 
 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment, imth or withml 
 hard labour, and vjith or without solitary confinement {such confinemeni 
 not exceeding one month at any one time, nor three .months in any one 
 year, 24 & 25 Vict. c. 97, s. 75, ante, p. 507) not exceeding two years, 
 24 (fc 25 Vict. c. 97, s. 11. As to requiring the offender to enter irUa 
 recognizances and find sureties for keeping the peace. Id. s. 73, ante, 
 p. 507. 
 
 This offence is not triable at quarter sessions. 5 d> 6 Vict. c. 38, s. 1 
 {ante, p. 104). 
 
 Prove a riotous assembly, as stated post. Chap. III., s. 1; the 
 number of persons composing it is not material, provided they were 
 three at the least. Prove that the assembly began " with force to 
 demolish the house" in question, and that it was the dwelling-house 
 of J. N., and situate in the parish and county described in the indict- 
 ment. It must appear that they began to demolish some part of the 
 freehold: for instance, the demolition of moveable shop shutters is 
 not sufficient. R. v. Howell, 9 C. <& P. 437. A demolition iyfin 
 is within the statute; Id.; so held also by Tindal, C. J., Parke,^-, 
 and Bolfe, B., on the Stafford Special Commission, 1842. B. y.Eanis, 
 C. & Mar. 661 : R. v. Simpson, Id. 669. Prove that the defendants 
 were either active in demolishing the house, or present aiding and 
 abetting. The jury must be satisfied that the ultimate object of the 
 
Malicious Mischief. 525 
 
 ■rioters was to demolish the house, and that, if they had carried their 
 intention into effect, they would in point of fact have demolished it ; 
 for if the rioters merely do an injury to the house, and then of their 
 own accord go away, as having completed their purpose, it is not a 
 beginning to demolish within the statute. E. v. Thomas, i C. (& P. 
 237: R. V. Price, 5 C. <& P. 610 : B. v. Sowell, ^ C. & P. 437 : B. v. 
 Adams, C. & Mar. 299. But a total demolition is not necessary to 
 satisfy the statute, though the parties were not interrupted: it is 
 enough if the house be destroyed as a dwelling. Therefore, the fact 
 that the rioters left a chimney remaining will not prevent the statute 
 from applying. B. v. Phillips, 2 Mood. C. C. 252; S. C. as B. v. 
 Langford, C. & Mar. 602. 
 
 Where a mob, after the obnoxious person had escaped, contmued 
 to attack a house until the police interfered, Gumey, B., left it to the 
 jury to say whether they had not the intention to demolish the house 
 as well as to injure the person; and the jury, being of that opinion, 
 found the defendants guilty. B. v. Batt, 6 C. & P. 329: see B. v. 
 Howell, swpra. 
 
 If the demolition be in the hona fide assertion of a supposed, 
 though unfounded, claim of right, it is not within the statute, though 
 it be accompanied by a riot. B. v. Phillips, and B. v. Langford, 
 
 If the demolishing, etc. be not proved so as to constitute a felony, 
 but the house be damaged or injured (the other requisites of this 
 section bein^ satisfied), the offenders may, upon this indictment, be 
 convicted of a misdemeanor under s. 12, and punished as therein 
 provided. 
 
 INJURIES TO HOUSES, ETC., BY TENANTS. 
 
 Statute, 
 24 <& 25 Vict, c: 97, s. 13.] — Whosoever being possessed of any 
 dwelling-house or other building, or part of any dwelling-house or 
 other building, held for any term of years or other less term, or at 
 will, or held over after the termination of any tenancy, shall unlaw- 
 fully and maliciously pull down or demolish, or begin to pull down 
 or demolish, the same or any part thereof, or shall unlawfully and 
 maliciously pull down or sever from the freehold any fixture being 
 fixed in or to such dwelling-house or building, or part of such 
 dwelhng-house or building, shall be guilty of a misdemeanor. 
 
 Indictment. 
 
 Middlesex, to wit : — The jurors for our lady the Queen, upon their 
 oath present, that on the first day of June, in the year of our Lord 
 , J. S. was possessed of a certain dwelling-house [" dwelling- 
 house or other building''^ situate in the parish of B., in the county of 
 M., then held by him the said J. S. for a term of years then unex- 
 pired [" held for any term of years or other less term, or at will, or 
 held over after the determination of any tenancy"'] ; and that the said 
 J. S. being so possessed as aforesaid, on the day and year aforesaid, 
 did unlawfully and maliciously pull down and demolish the said 
 dwelling-house ["pull down or demolish, or begin to pull down or de- 
 
526 Malicious Mischief. 
 
 molisk the same or any part thereof" or "■pull down or sever from the 
 freeliold any fixture being fixed in or to such dwelling-house or build- 
 ing"']; against the form [as ante, p. 347]. 
 
 Misdemeanor: fine or imprisonment, or both. — 24 d 25 Vict. c. 97, 
 «. 13. (See ss. 73, 74, ante, p. 507.) 
 
 Evidence. 
 Prove that the defendant was possessed of the dwelling-house for a 
 subsisting term of years, or other less term, or at will, or that he was 
 holding it over after the determination of his tenancy therein. If 
 the tenancy was created by a lease or agreement in writing, the 
 terms of it must be proved by the written instrument itself, or its 
 nonproduction must be accounted for in order to let in other evi- 
 dence of its contents. (See ante, pp. 219, 220.) Prove that the 
 dwelling-house was situate as described in the indictment. Then 
 prove that the defendant, or some other person or persons by his di- 
 rection, demolished or began to demolish the house, or some part 
 thereof (see ante, p. 624). Lastly, prove that the act was done mali- 
 ciously; that is, wilfully, and without any claim or pretence of right 
 to do it. (See ante, p. 525.) 
 
 DESTROYING GOODS IN PROCESS OF MANUFACTURE, AND 
 MACHINERY. 
 
 24 & 25 Vict. c. 97, s. 14.] — Whosoever shall unlawfully and mali- 
 ciously 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 
 framework-knitted 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 un- 
 lawfully and maliciously cut, break, or destroy, or damage with 
 intent to destroy or to render useless, any wai-p or shnte of sUk, 
 wooUen, 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 shall unlawfully and maliciously cut, break, or 
 destroy, or damage with intent to destroy or render useless any 
 loom, frame, machine, engine, rack, tackle, tool, or implement, 
 whether fixed or moveable, prepared for or employed in carding, 
 . spinning, throwing, weaving, fulling, shearing, or otherwise manu- 
 facturing or preparing any such goods or articles; or shall by force 
 enter into any house, shop, building, or place, with intent to commit 
 any of the offences in this section mentioned, shall be guilty of 
 felony, and being convicted thereof shall be liable, at the dis- 
 cretion of the court, to be kept in penal servitude for life, or for 
 any term not less than three years [now five years, 27 & 28 Vict. c. 47, 
 s. 2, ante, p. 173], or to be imprisoned for any term not exceeding 
 two years, with or without hard labour, and with or without solitary 
 confinement, and, if a male under the age of sixteen years, with or 
 without whipping. 
 
Malicious Mischief. 527 
 
 Indictment for Cutting, etc., Goods in the Loam, etc. 
 
 Commencement as ante, p. 313] — twenty-five yards of woollen cloth 
 (" a/ny goods or article of silk, woollen,- linen, cotton, hair, mohair, or 
 alpaca, or of a/ny one or more of those materials mixed with each other, 
 or mixed with any other material, or any frame-work knitted piece, 
 stocking, hose, or lace"), of the goods and chattels of J. N., in a 
 certain loom (" in the loom or frame, or on amy machine or engine, or 
 on the rack or tenters, or in any stage, process, or progress of manu- 
 facture") then being, feloniously, unlawfully, and maliciously did 
 cut and destroy (" cut, break, or destroy, or damage with intent to 
 destroy or torender useless"); against the form [as ante, p. 347]. 
 
 Felony : penal servitude for life or for not less than five [27 <fe 28 
 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment, with or without 
 ha/rd labour, cmd with or without solitary confinement (such confiimment 
 not exceeding one month at any one time, nor three months in amy one 
 year, 24 & 25 Yict. c. 97, s. 75, ante, p. 507) not exceeding two years; 
 and, if a male, under sixteen years, with or without whipping. — 24 & 
 25 Vict. c. 97, s. 14. As to requiring the offender to enter into recog- 
 nisances and find sureties for keeping the peace. Id. s. 73, ante, 
 p. 507. 
 
 This offence is not triable at quarter sessions. 5 <& Q Vict. c. 38, s. 1 
 (ante, p. 104). 
 
 Evidence. 
 
 Prove that the defendant cut or destroyed, etc., the goods in the 
 loom as stated in the indictment, and that they were the property of 
 J. N., either absolutely or specially. Then prove that it was done 
 maliciously. (See ante, p. 508:) It is not necessary to prove that it 
 was done out of actual malice to the owner. 24 d; 25 Viet. c. 97, 
 s. 58, cmte, p. 505. 
 
 If an intent be charged in the indictment, it must be proved by 
 circumstances, if it cannot be inferred from the act itself. (See ante, 
 pp. 208, 235.) 
 
 Indictment for Breaking, etc., Warps of Silk, etc., or Machinery, eta. 
 
 Commmcement as ante, p. 313] — a certain warp of silk ("any warp 
 or shuts of silk, woollen, linen, cotton, hair, mohair, or alpaca, or of 
 any one or more of those materials mixed vnth each other, or mixed 
 with any other material, or amy loom, frame, machine, engine, rack, 
 tackle, tool, or implement, v}hether fixed or moveable, prepared for or 
 employed in carding, spinning, throioing, weaving, fulling, shearing, or 
 otherwise manufacturing or preparing any such goods or articles"), the 
 goods and chattels of J. N., feloniously, maliciously, and unlawfully 
 did cut and destroy (" cut, break, or destroy, or damage with intent to 
 destroy or to render useless") ; against the form [as ante, p. 347]. 
 
 Felony: punishable as in the last case. — 24 <& 26 Vict. c. 97, s. 14. 
 
 This offence is not triable at quarter sessions. 5 c6 6 Vict. c. 38, s. 1 
 (ante, p. 104). ^ 
 
 Evidmce. 
 
 Prove that the defendant cut or destroyed, etc., the warp of silk, 
 
 etc., the property of J. N., as stated in the indictment. Where the 
 
 prisoner, in company with others, unfastened and took away a certain 
 
 part of a stocking-frame called the half-jack, without which the frame 
 
523 Malicious Mischief. 
 
 was useless, but did no further injury either to the half-jack or to th 
 frame, than the remoyal of the half-jack ; the judges were unani 
 mously of opinion, that this was a damaging the frame within the 2i 
 G. 3, c. 55, s. 4, as it made the frame imperfect and inoperative. E 
 V. Tacey, B. c6 E. 452. Prove also that it was done maliciously (se, 
 ante, p. 508), as in the last case. And if an intent be charged in th( 
 indictment, prove it from circumstances, if it cannot be inferred fron 
 the act itself. {See ante, pp. 208, 235.) 
 
 Indictment for entering hy Force into a House, etc., with Intent to 
 cut or destroy, etc., Silk Goods, etc. 
 
 Commencement as ante, p. 313] — into a certain house (" any house, 
 shop, building, or place") of J. N., situate at the parish of B., in the 
 county of M., feloniously and by force did enter, with intent certain 
 woollen goods of the said J. N., in a certain loom then and there 
 being (" with intent to commit any of the offences aforesaid," see the 
 last two precedents), feloniously, unlawfully, and maliciously, to out 
 and destroy; against the form [as ante, p. 347]. 
 
 Felony : see the last precedent but one.— 24: <& 25 Vict. c. 97, s. 14. 
 
 This offence is not triable at quarter sessions. 5 <£ 6 Vict. c. 38, s. 1 
 (ante, p. 104). 
 
 Evidence. 
 Prove that the defendant entered by force the house in question, 
 that such house was the house of J. N., that the , house was situate as 
 described in the indictment, that the woollen goods were in the 
 house ; and prove from circumstances the defendant's intent to be 
 such as is charged in the indictment. (See ante, pp. 208, 235.) 
 
 DESTEOYINa MACHINES USED IN AGEICULTUKB OR MANUFACTUEES. 
 
 Statute. 
 24 (& 25 Vict. c. 97, s. 15.] — Whosoever shall unlawfully and mali- 
 ciously cut, break, or destroy, or damage with intent to destroy or to 
 render useless, any machine or engine, whether fixed or moveable, 
 used, or intended to be used for sowing, reaping, mowing, threshing, 
 ploughing, or draining, or for performing 4ny other agricultural ope- 
 ration, or any machine or engine, or any tool or implement, -whether 
 fixed or moveable, prepared for or employed in any manufacture 
 whatsoever (except the manufacture of silk, woollen, linen, cotton, 
 hair, mohair, or alpaca goods,, or goods of any one or more of those 
 materials mixed with each other, or mixed with any other material, 
 or any frame-work knitted piece, stocking, hose, or lace), shall be 
 guilty of felony, and being convicted thereof shall be liable, at the 
 discretion of the court, to be kept in penal servitude for any term 
 not exceeding seven years, and not less than three years [now five 
 years, 27 d 28 Vict. c. 47, s. 2, ante, p. 173], or to be imprisoned for 
 any term not exceeding two years, with or without hard labour, and 
 with or without solitary confinement, and, if a male under the age 
 of sixteen years, with or without whipping. 
 
Malicious Mischief. 529 
 
 Indictment. 
 
 Commencement as ante, p. 313] — a certain thrashing-machine (" any 
 machine or engine, whether fixed or moveable, used or intended to be 
 used for sowing, reaping, mowing, thrashing, ploughing or draining, or 
 for performing any other agricultural operation, or any machine or 
 engine, or any tool or implement, whether fixed or moveable, prepared 
 for or employed in any manufacture whatsoever, except the manufacture 
 of silk, woollen, linen, cotton, hair, mohair, or alpaca goods, or goods of 
 any one or more of those materials mixed with each other, or mixed 
 with any other material, or any frame-worh knitted piece, stocking, 
 hose, or lace"), the property of J. N., feloniously, unlawfully, and 
 maliciously did cut, break and destroy {"■cut, break or destroy, or 
 damage with intent to destroy or render useless ") ; against the form 
 [as ante, p. 347] . 
 
 Felony : penal servitude for not rriore than seven nor less than five 
 [27 & 28 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment, vnth or 
 without hard labour, and with or without solitary confinement {such 
 confinement not exceeding one month at any one time, nor three months 
 in any one year, 24 <* 25 Vict. v. 97, s. 75, ante, p. 507) not exceeding 
 two years; and, if a male under sixteen years of age, with or without 
 whipping. — 24 i& 25 Vict. c. 97, s. 16. As to requiring the offender to 
 enter into recognizances and find swreUes for keeping the peace. Id. 
 s. 73, ante, p. 507. 
 
 Euidence. 
 Prove that the defendant cut, broke or destroyed the thrashings 
 machine in question ; (see an<6,p^. 527, 628 : ^. v. roces/, iJ.(6i?.452;) 
 and that it was the property of J. N. Prove that it was done mali- 
 ciously [see ante, p. 508) ; but whether from malice to the owner or 
 otherwise is immaterial. 24 & 25 Vict. c. 97, s. 58 (ante, p. 505). 
 In R. V. Crutchley, b C. & P. 133, upon an indictment for breaking a 
 thrashing-machine, PaSeson, J., allowed the prisoner's counsel to ask 
 whether the mob had not compelled several persons to join them, 
 and to give each a blow with a sledge-hammer to every machine 
 that was broken ; he also allowed the witnesses for the prisoner to 
 prove that he had been forced by the mob to join them, and had re- 
 solved to escape on the first opportunity. If the damage is alleged 
 to have been done with intent to destroy the machine, or to render it 
 useless, the intent must be proved from circumstances, if it cannot be 
 implied from the act done. (See ante, pp. 208, 235.) If a thrashing- 
 machine be taken to pieces and separated by the owner, the destruc- 
 tion of any part of it is within the statute. R. v. Mackerel, 4: C. (& 
 P. 448. So is the destruction of a water-wheel, by which a thrash- 
 ing-machine is worked. R. v. Fidler, 4 C.& P. 449. So, though 
 the side-boards of the machine be wanting, without which it will act, 
 but not perfectly, it is within the statute. R. v. Bartlett, 2 Deacon, 
 C. L. 1517. But if the machine be taken to pieces, and in part de- 
 stroyed by the owner from fear, the remaining parts do not constitute 
 a machine within the meaning of the statute. R. v. West, Id. 1618. 
 It is not necessary that the damage done should be of a permanent 
 kind. Therefore where the prisoner was indicted under this statute, 
 s. 15, for maliciously damaging a steam-engine, and the evidence 
 was that he had maliciously screwed up parts of the engine, so that 
 they would not work while so screwed up, and had reversed the plug 
 of the pump which supplied the engine with water, and that the 
 
 W. A A 
 
530 Malicious Mischief. 
 
 engine was thus rendered temporarily useless and liable to turst, 
 but the screws were loosened and the plug properly replaced by the 
 prosecutor who discovered the state of the engine before any per- 
 manent damage was done, and the engine was then just as good as 
 before, it was held that the prisoner was properly convicted. B. v. 
 Msher, L. JR., \C. C.R.I; 35 L. J. (M. C.) 67. 
 
 A table, with a hole in it for water, used in the manufacture of 
 bricks, was held not to be a " machine prepared for or employed in 
 any manufacture" within the repealed statute 7 i6 8 (?. 4, c. 30, s. 4. 
 B. V. Penny, Chester Sum. Ass. 1855 (per Jervis, C. J., after consult- 
 ing Lord Campbell, C. J.) But it would no doubt have been held to 
 be a " tool" or " implement" within the present statute. 
 
 DROWNING MINES, ETC. 
 
 Statute. 
 
 24 (& 25 Vict. c. 97, s. 28.]— Whosoever shall unlawfully and ma- 
 liciously cause any water to be conveyed or run into any mine, or 
 into any subterraneous passage communicating therewith, with intent 
 thereby to destroy or damage such mine, or to hinder or delay the 
 working thereof, or shall, with the like intent, unlawfully and mali- 
 ciously pull down, fill up, or obstruct, or damage with intent to 
 destroy, obstruct, or render useless any airway, waterway, drain, pit, 
 level or shaft, of or belonging to any mine, shall be guilty of felony, 
 and being convicted thereof shall be liable, at the discretion of the 
 court, to be kept in penal servitude for any term not exceeding seven 
 years, and not less than three years, [now Jive years, 27 <fe 28 Vict. 
 c. 47, 1. 2, ante, p. 173,] or to be imprisoned for any term not exceed- 
 ing two years, with or without hard labour, and with or without 
 solitary confinement, and, if a male under the age of sixteen years, 
 with or without whipping. Provided that this provision shall not 
 extend to any damage committed underground by any owner of any 
 adjoining mine, in working the same, or by any person duly employed 
 in such working. 
 
 Indictment for drowning a Mine. 
 
 Commencement as ante, p. 313] — feloniously, unlawfully, and mali- 
 ciously did cause a quantity of water (" amy water") to be conveyed 
 into a certain mine (" into any mine or into amy suhterraneous passage 
 commimicating therewith") of J. N., situate at the parish of B., in the 
 county of M., with intent thereby then feloniously to destroy 
 (" destroy or damage, or hinder or delay the working thereof) the said 
 mine; against the form [as ante, p. 347], The mine may he hid 
 as the property of a person in possession of and working it, though 
 only as agent for others. B. v. John Jones, 7 Mood. C. C. 293 ; 1 C. 
 & K. 181. 
 
 Felony : penal servitude for not more than seven nor less than five 
 [27 (& 28 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment, with or 
 without hard labour, and with or without solitary confinement (such 
 confinement not exceeding one month at any one time, nor three rrumth 
 in any one year, 24 d 25 Vict. c. 97, s. 75, amte, p. 607) not exceeding 
 
Malicious Mischief. 531 
 
 iioo years; and, if a male under sixteen years of age, with pr without 
 whipping. — 24 dk 25 Vict. c. 97, a. 28. As to requiring the offender to 
 enter into recognizances a/ndfind sureties for keeping the peace, Id. s. 73, 
 ante, p. 607. 
 
 Eoidence. 
 
 Prove that the defendant caused the water to be conveyed into the 
 mine in the occupation of J. N., as described in the indictment. 
 Prove that it was done maliciously. (See ante, p. 508.) And prove 
 the intent by circumstances from which it may be inferred. (See 
 ante, p. 208 ) This provision does not extend to any damage com- 
 mitted underground by any owner of any adjoining mine in working 
 the same, or by any person duly employed in such working. 24 & 
 25 Vict. c. 97, s. 28. 
 
 Indictment for pulling down, etc., Airways, etc., of Mines. 
 
 Commencement as ante, p. 313] — feloniously, unlawfully, and mali- 
 ciously did pull down Q'pull down, fill up, or obstruct, or damage with 
 intent to destroy, obstruct, or render useless") a certain airway (" air- 
 way, waterway, drain, pit, level, or shaft") of and belonging to a 
 certain mine of J. N., situate at the parish of B., in the county of 
 M., with intent thereby then to destroy (" destroy, or damage, or 
 hinder or delay the working thereof) the said mine; against the form 
 las ante, p. 347] . If the offence be an obstruction of an airway, etc., 
 the mode of obstruction may be stated in a second count. 
 
 felony. See the last precedent. — 24 d 25 Vict. c. 97, s. 28. 
 
 Evidence. 
 
 Prove that the defendant pulled down, etc., the airway of a mine 
 in the occupation of J. N., as described in the indictment. If work- 
 men stop up an airway by order of their master in a portion of his 
 mine, it is not felony in the workmen, even though the master know 
 that he has no right to the airway; but if the workmen know that 
 the stopping of the airway is a malicious act of the master, it is 
 felony in the workmen. S. y. James, % C. ds P. 131. Prove that it 
 was done maliciously. (See ante, p. 508.) And prove the intent, 
 as in the last precedent. The proviso in the last case applies to 
 this also. 
 
 DESTROYING ENGINES, ERECTIONS, ETC., USED IN MINES. 
 
 Statute. 
 24 c6 25 Vict. c. 97, s. 29.]— Whosoever shall unlawfully and ma- 
 liciously pull down or destroy, or damage with intent to destroy 
 or render useless, any steam-engine or other engine for sinking, 
 draining, ventilating, or working, or for in anywise assisting in sink- 
 ing, draining, ventilating, or working any mine, or any appliance or 
 apparatus in connexion with any such steam or other engine, or any 
 staith, building, or erection, used in conducting the business of any 
 mine, or any bridge, waggon-way, or trunk for conveying minei-als 
 from any mine, whether such engine, staith, building, erection, bridge, 
 
 aa2 
 
532 Malicious Mischief. 
 
 waggon-way, or trunk be completed or in an unfinished state, or shall 
 unlavrfuUy and maliciously stop, obstruct, or hinder the working of 
 any such steam or other engine, or of any such appliance or apparatus 
 as aforesaid, with intent thereby to destroy or damage any mine, or 
 to hinder, obstruct, or delay the working thereof, or shall unlawfully 
 and maliciously wholly or partially cut through, sever, break, or un- 
 fasten, or damage with intent to destroy or render useless, any rope, 
 chain, or tackle, of whatsoever material the same shall be made, used 
 in any mine, or in or upon any inclined plane, railway, or other way, 
 or other work whatsoever in anywise belonging or appertaining to 
 or connected with or employed in any mine, or the working or busi- 
 ness thereof, shall be guilty of felony, and being convicted thereof 
 shall be liable, at the discretion of the court, to be kept in penal ser- 
 vitude for any term not exceeding seven years and not less than three 
 years [now five years, 27 (& 28 Vict. c. 47, s. 2, ante, p. 173], or to be 
 imprisoned for any term not exceeding two years, with or without 
 hard labour, and with or without solitary confinement, and, if a male 
 under the age of sixteen years, with or without whipping. 
 
 Indictment. 
 
 Commencement as ante, p. 313]— a certain steam-engine, the pro- 
 perty of J. N., for the draining and working of a certain mine of the 
 said J. N., situate at the parish of B., in the county of M. (" my 
 steam-engine or other engine for sinking, draining, ventilating, or work- 
 ing any mine, etc., etc.") feloniously, unlawfully, and maliciously did 
 pull down and destroy (^"pull dovm or destroy, or damage mth intent 
 to destroy or render useless"); against the form [as ante, p. 347]. 
 
 Felony. See the last precedent hut one. — 24; <& 25 Vict. c. 97, s. 29. 
 
 EvidiCnce. 
 
 Prove that the defendant pulled down or destroyed the engine de- 
 scribed in the indictment, and that it was erected for the purposes 
 described in the indictment. It is immaterial whether it was com- 
 pleted or in an unfinished state. 24 1& 25 Vict. c. 97, s. 29. A scaf- 
 fold, erected at some distance above the bottom of a mine, for the 
 purpose of working a vein of coal on a level with the scaffold, was 
 liolden to be an erection used in conducting the business of the mine, 
 within the meaning of the statute. R. v. Whittingham, 9 C.SP. 23*. 
 Where a steam-engine used in working a mine had been stopped 
 and locked up for the night, and the defendant got into the engine- 
 house and set it going, and there being no machinery attached, the 
 engine went with great velocity, and received injury, this was holden 
 to be a damaging of the engine, within the statute. R. v. Norris, Id, 
 241. Where a mine was worked by a steam-engine, which caused a 
 cylinder called a drum to revolve, and take up the rope as the coal 
 was drawn up from the mine, it was holden, on the repealed act 
 7 tfc 8 G'. 4, c. 30, s. 7, that proof of damaging the drum would not 
 support an indictment which charged the damaging of the steam- 
 engine. R. V. Whittingham, supra. But the words of the present 
 statute are much larger : they include " any appliance or apparatus 
 in connexion with any such steam or other engine," and apply also 
 to many other injurious acts which were not mentioned in the former 
 statutes. Prove that the mine was in the possession of J. N. Prove 
 that the act was done maliciously (see ante, p. 508); and, if an 
 
Malicious Mischiefi £33 
 
 intent be stated, prove it from circumstances from which that intent 
 may be inferred, if it cannot be implied from the act itself. (See 
 mUe,p. 208.) 
 
 DESTROYING SHIPS, WITH INTENT, ETC. 
 
 Statute. 
 24 <& 25 Vict. c. 97, ss. 42, i3.]—Ante,p. 514. 
 
 Indictment. 
 
 Commencement as ante, p. 516] — on the high seas, feloniously, un- 
 lawfully, and maliciously, did cast away and destroy (" cast away, or 
 in anywise destroy ") a certain ship (" any skip or vessel, whether the 
 same he complete or in an unfinished state"), with intent thereby to 
 prejudice one J. N., the owner ("oumer or part owner") of the said 
 ship, [or, one E. F., the owner of certain goods then laden and being 
 in and on board the said ship, or, one E. F., who had before then 
 underwritten a certain policy of insurance on the said ship, (or, on 
 the freight of the said ship, or, on certain goods then being on board 
 the said ship,) which said policy was then in full force and opera- 
 tion (see ante,p. 516)]; against the form \_as ante,p. 347]. If the 
 offence he committed in the body of a conmiy, see the precedent, ante, 
 p. 515. 
 
 Felany. (See ante, p. 515.) 
 
 This offence is not triable at quarter sessions. 5^6 Vict. c. 38, 
 t. 1 (ante, p. 104). 
 
 Evidence. 
 
 Prove that the defendant cast away or otherwise destroyed the 
 vessel, the property of J. N., as stated. (See ante, p. 515.) It is 
 immaterial whether the ship were complete or in an unfinished state. 
 24 <& 25 Vict. c. 97, s. 42. A pleasure boat eighteen feet long is, it 
 seems, a vessel within the meaning of the act. B. v. Sawyer, 4 C (fi 
 P. 559. See iS. v. Smith, ^C.&P. 569 (ante, p. 515). If the ship 
 ''had only run aground, and were afterwards got off in a condition so 
 as to be easily refitted, it seems it would not be an offence within the 
 act. See R. v. De Londo, 2 East, P. C. 1098. Prove the offence to 
 have been done maliciously (see ante, p. 508) ; and also prove the 
 offence to have been committed with the intent charged in the indict- 
 ment. Proving that it was done wilfully is of itself sufficient evidence 
 from which the jury may presume that it was committed with intent 
 to prejudice either the owner or part-owner of the ship or of the 
 goods ; but if the intent charged be to prejudice the underwriters, 
 you must prove the policy (see ante, p. 516 ; R. v. Cfilson, B. & B. 
 138), the inception of the risk, and circumstances from which the 
 jury may infer the intent. (See ante, p. 208.) 
 
634 Malicious Mischief. 
 
 DAMAGING SHIPS, WITH INTENT, ETC. 
 
 Statute. 
 
 24 £ 25 Vict. c. 97, s. 46.]— Whosoever shall unlawfully and 
 maliciously damage, otherwise than by fire, gunpowder, or other ex- 
 plosive substance, any ship or vessel, whether complete or in an un- 
 finished state, with intent to destroy the same or render the same 
 useless, shall be guilty of felony, and being convicted thereof shall 
 be liable, at the discretion of the court, to be kept in penal servitude 
 for any term not exceeding seven years, and not less than three 
 years, {now five years, 27 <& 28 Vict. c. 47, s. 2, ante, p. 173,] or to be 
 imprisoned for any term not exceeding two years, with or without 
 hard labour, and with or without solitary confinement, and, if a male 
 under the age of sixteen years, with or without whipping. 
 
 Sect. 45 — Attempting to damage Ships with Grunpowder.l — Whoso- 
 ever shall unlawfully and maliciously place or throw in, into, upon, 
 against, or near any ship or vessel any gunpowder or other explosive 
 substance, with intent to destroy or damage any ship or vessel, or 
 any machinery, working tools, goods, or chattels, sh^l, whether or 
 not any explosion take place, and whether or not any injury be 
 effected, be guilty of felony, and being convicted thereof shall be liable, 
 at the discretion of the court, to be kept in penal servitude for any 
 term not exceeding fourteen and not less than three years, Inowfive 
 years, 27 <& 28 Vict. c. 47, s. 2, ante, p. 173,] or to be imprisoned for 
 any term not exceeding two years, with or without hard labour, and 
 with or without solitary confinement, and, if a male under the age of 
 sixteen years, with or without whipping. 
 
 Indictm,ent. 
 
 Commencement as ante, p. 516]— on the high seas, feloniously, un- 
 lawfully, and maliciously did damage a certain ship (" any ship or 
 vessel, whether complete or in an unfinished state") by (state how) 
 Q' damage otherwise than by fire, gtmpowder, or other explosive sub- 
 stance"), with intent thereby to destroy the said ship, [or, to render 
 useless the said ship]; against the form [as ante, p. 347]. Jf the 
 offence be committed in the body of a county, see the precedent', ante, 
 p. 515. It is not necessary, to state the damage to have been dime 
 "nthenvise than by fire." if the manner of doing thedamage is stated. 
 S. V. Bowyer, i C. if P. 559. 
 
 Felony : penal servitude fiir not more than seven nor less than five 
 [27 ^ 28 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment, with 
 or vnthout hard labour, and with or without solitary confinement 
 (such confinement not exceeding one month at any one time, nor three 
 months in any one year, 24 ^ 25 Vict. c. 97, s. 75, ante, p. 507) not 
 exceeding two years; and, if a male under sixteen years of age, with 
 or without whippiiig. — 24 Sf 25 Vict. c. 97, s. 46. As to requiring the 
 offender to enter into recognizances and find sureties for keeping the 
 peace. Id. s. 73, ante, p. 507. 
 
 An indictment under s. 45, for attempting to destroy or damage a 
 ship by the explosion of gunpowder, etc., may easily be framed from 
 the precedent, ante, p. 522. 
 
Malicious Mischief. 535 
 
 Evidence. 
 Prove that the defendant damaged the ship in the mode stated in 
 the indictment. It is immaterial whether tlie ship were in a complete 
 or unfinished state. 24 & 26 Vict. c. 97, s. 46. Prove that the act 
 was done maliciously. {See ante, p. 508.) Prove the ownership of 
 the ship (see ante, p. 615) ; and prove, also, circumstances from which 
 the intent stated in the indictment may be inferred (see ante, p. 208), 
 if it cannot be presumed from the act itself. A pleasure boat, 
 eighteen feet long, is, it seems, within this statute. R. v. Bowyer, 4 
 C. & P. 559. See JR. v. Smith, i C. S P. 569 {ante, p. 516). 
 
 EXHIBITING FALSE SIGNALS, ETC. 
 
 Statvte. 
 24 <& 26 Vict. c. 97, s. 47.]— Whosoever shall unlawfully mask, 
 alter, or remove any light or signal, or unlawfully exhibit any false 
 light or signal, with intent to bring any ship, vessel, or boat into 
 danger, or shall unlawfully and maliciously do anything tending to 
 the immediate loss or destruction of any ship, vessel, or boat, and 
 for which no punishment is hereinbefore provided, shall be guilty of 
 felony, and being convicted thereof shall be liable, at the discretion 
 of the court, to be kept in penal servitude for life, or for any term 
 not less than three years [now five years, 27 <6 28 Vict. c. 47, s. 2, 
 ante, p. 173], or to be imprisoned for any term not exceeding two 
 years, with or without hard labour, and with or without solitary con- 
 finement, and, if a male under the age of sixteen years, with or with- 
 out whipping. 
 
 Indictment for exhibiting False Signals, 
 
 Sussex, to wit: — The jurors for our lady the Queen upon their 
 oath present, that before and at the time of committing the felony 
 hereinafter mentioned, a certain ship (" amy ship, vessel, or hoat"), the 
 property of some person or persons to the jurors aforesaid unknown, 
 
 was sailing on the high seas [or, in a certain river called the ], 
 
 near unto the parish of , in the county of S.; and that J. S. on 
 
 the first day of June, in the year of our Lord , well knowing 
 
 the premises, whilst the said ship was so sailing on the high seas, 
 near unto the said parish as aforesaid, feloniously and unlawiiiUy 
 did exhibit a false light (" any false light or signal^') with intent 
 thereby to bring the said ship into danger; against the form [as ante, 
 p. 347]. 
 
 Felony: penal servitude for life or for not less than five [27 S^ 28 
 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment, loith or with- 
 out hard labour, and with or without solitary confinement (such con- 
 finement not exceeding one month at any one time, nor three months 
 in any one year, 24 ^ 25 Vict. c. 97, s. 75, ante, p. 507), not exceed- 
 ing two years ; and, if a male under sixteen years of age, with or 
 without whipping. — 24 A- 25 Vict. c. 97, s. 47. As to requiring the 
 offender to enter into recognizances and find sureties for keeping tlie 
 peace, Id. s. 73, ante, p. 507. 
 
536 Malicious Mischief. 
 
 This offence is not triable at quarter sessions. 6 if 6 Vict. c. 38, 1. 1 
 (ante, p. 104;. 
 
 Evidence, 
 Prove that the ship was sailing as stated in the indictment, and 
 that the defendant exhibited the false light or signal. The intent 
 must be proved by the circumstances of the case which fairly and 
 naturally lead to that conclusion, or by declarations made by the de- 
 fendant. {See ante, p. 208.) 
 
 Indictment for doing an Act tending to the immediate Loss 
 of a Ship. 
 
 Commencement as in the last precedent] — near unto the parish of 
 
 , in the county of S.; and that J. S., on the first day of June, in 
 
 the year of our Lord , well knowing the premises, whilst the 
 
 said ship was so sailing near the said parish as aforesaid, feloniously, 
 unlawfully, and maliciously did (etc., stating the act done — " am/- 
 thing") the said act so done by the said J. S. as aforesaid then tend- 
 ing to the immediate loss (" loss or destruction") of the said ship; 
 against the form \as ante, p. 347]. 
 
 Felony. See the last precedent. 
 
 This offence is not triable at quarter sessions. 5 c6 6 Vict. c. 38, s. 1 
 (ante, p. 104). 
 
 Evidence. 
 
 Prove that the act was done by the defendant maliciously (see 
 ante, p. 508); and that it tended to the immediate loss or destruc- 
 tion of the ship. 
 
 DESTROYING PARTS OP SHIPS IN DISTRESS, ETC. 
 
 Statute, 
 24 & 25 Vict. c. 97, s. 49.] — Whosoever shall unlawfully and mali- 
 ciously destroy any part of any ship or vessel which shall be in 
 distress, or wrecked, stranded, or cast on shore, or any goods, mer- 
 chandise, or ai-ticles of any kind belonging to such ship or vessel, 
 shall be guilty of felony, and being convicted thereof shall be liable, 
 at the discretion of the court, to be kept in" penal servitude for any 
 term not exceeding fourteen and not less than three years Inowfioe 
 years, 27 t& 28 Vict. c. 47, s. 2, amte, p. 173], or to be imprisoned for 
 any term not exceeding two years, with or without hard labour, and 
 with or without solitary confinement. 
 
 Indictmentfor destroying Part of a Ship, etc., in Distress. 
 Commencement as ante, p. 635] — the property of some person or 
 persons to the jurors aforesaid unknown, was stranded and cast on 
 shore ("in distress, or wreched, stranded, or cast on shore") at the 
 
 parish of , in the county of , and that J. S., on the first day 
 
 of June, in the year of our Lord , and while the said ship was 
 
Malicious Mischief. 537 
 
 so stranded and cast on shore as aforesaid, the hull of the said ship 
 (" any part of amy ship or vessel which shall he in distress, or vrrecJced, 
 stranded, or cast on shore, or any goods, merchandise, or articles of any 
 hind belonging to such ship or vessel") feloniously, unlawfully, and 
 maliciously did destroy; against the form [as ante, p 347]. 
 
 Felony : penal servitude for not more than fourteen nor less than 
 five [27 ^ 28 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment 
 not exceeding two years, loith or without hard labour, and with or 
 without solitary confinement (surh confinement not exceeding one month 
 at any one time, nor three months in any one year, 24 Sf 25 Vict. c. 97, 
 s. 75, ante, p. 607). — 24 ^ 25 Vict. c. 97. s. 49. As to requiring the 
 offender to enter iyitu recognizances and find sureties for keeping the 
 peace, Id. s. 73, ante, p. 5U7J. 
 
 Eiiideince. 
 Prove that the ship was stranded or cast ashore ; prove the de- 
 struction of that part of the ship stated in the indictment, and that 
 it was done by the defendant maliciously. {See ante, p. 508.) 
 
 CUTTING AWAY, ETC., BUOYS, ETC. 
 
 Statute. 
 24 de 25 Vict. c. 97, s. 48.] — Whosoever shall unlawfully and ma- 
 liciously cut away, cast adrift, remove, alter, deface, sink, or destroy, 
 or shall unlawfully and maliciously do any act with intent to cut 
 away, cast adrift, remove, alter, deface, sink, or destroy, or shall in 
 any other manner imlawfuUy and maliciously injure or conceal any 
 boat, buoy, buoy-rope, perch, or mark used or intended for the guid- 
 ance of .seamen, or the purpose of navigation, shall be guilty of 
 felony, and being convicted thereof shall be liable, at the discretion 
 of the court, to be kept in penal servitude for any term not exceeding 
 seven years, and not less than three years [now Jive years, 27 <& 28 
 Vict. c. 47, s. 2, ante, p. 173], or to be imprisoned for any term not 
 exceeding two years, with or without hard labour, and with or with- 
 out solitary confinement, and, if a male under the age of sixteen years, 
 with or without whipping. 
 
 Indictment. 
 
 Sussex, to wit : — The jurors for our lady the Queen upon their 
 oath present, that J. S., on the first day of August, in the year of our 
 
 Lord , upon the high seas, feloniously, xmlawfiilly and maliciously 
 
 did cut away a certain buoy (" any boat, buoy, buoy^ope, perch or 
 mark") then used for the guidance of seamen, and for the purpose 
 of navigation (" used or intended for the guidance of seamen or the 
 purpose of navigation"); against the form [as ante, p. 347]. 
 
 Felony : penal servitude for not more than seven nor less than five 
 [27 ^ 28 Vict. c. 47, s 2, ante, p. 173] years, or imprisonment not 
 exceeding two years, with or without hard labour, and with or without 
 solitary confinement (such confinement not exceeding one month at any 
 one time, nor three months in any one year, 24 ^ 25 Vict. c. 97, s. 75, 
 ante, p. 507) ; and, if a niale under sixteen years of age, with or with~ 
 
 A A 5 
 
§^ MuUcious Mischief. 
 
 out whipping. — 24 S^ 25 Viet. c. 97, s. 48. As to requiring the affender 
 tp enter into recognizances and find sureties for keeping the peace, Id. 
 s, 73 (ante, p. 507). 
 
 Evidemce. 
 Prove that the buoy, etc., in question was used or intended for 
 the guidance of seamen, or in some manner for the purpose of navi- 
 gation, and that the defendant cut it away maliciously, that is, wil- 
 fully, Wo intent need be charged in the indictment. 
 
 DESTKOYING SEA AND EIVEK BANKS, ETC. 
 
 Statute. 
 24 c&'25 Vict. c. 97, s. 30.]— Whosoever shall unlawfully and ma- 
 liciously break down or cut down, or otherwise damage or destroy, 
 any sea-bank or sea-wall, or the bank, dam, or wall of or belonging 
 to any river, canal, drain, reservoir, pool, or marsh, whereby any land 
 or building shall be, or shall be in danger of being, overflowed or 
 damaged, or shall unlawfully and maliciously throw, break, or cut 
 down, level, undermine, or otherwise destroy any quay, wharf, jetty, 
 lock, sluice, flood-gate, weir, tunnel, towing-path, drain, water-course, 
 or other work belonging to any port, harbour, dock or reservoir, or 
 on or belonging to any navigable river or canal, shall be guilty of 
 felony, and being convicted thereof shall be liable, at the discretion 
 of the court, to be kept in penal servitude for life or for any term not 
 less than three years [now five years, 27 & 28 Vict. c. 47, s. 2, anU, 
 p. 173], or to be imprisoned for any term not exceeding two years, 
 with or without hard labour, and with or without solitary confine- 
 ment, and, if a male under the age of sixteen years, with or without 
 whipping. 
 
 Indictment for cutting down River or Sea-Banhs, 
 
 Commencement as ante, p. 313] — a certain part of the bank (" any 
 sea-hank, or sea-wall, or the bank, dam, wall of any river, canal, 
 drain, reservoir, pool, or marsh") of a certain river called the river 
 
 , situate at the parish of B., in the county of M., feloniously, 
 
 unlawfully, and maliciously did cut down and break down, by means 
 whereof certain land was then overflowed and damaged [or, was in 
 danger of being overflowed and damaged] ; against the form [as ante, 
 p. 347]. 
 
 Felony : penal servitude for life or for not less than five [27 Sc 28 
 Vict. c. 47, s. 3, ante, p. 173] gears, or imprisonment, not exceeding 
 two years, with or without hard labour, and with or without solitary 
 confinement (such confinement not exceeding one month at any one 
 time, nor three months in any one year, 24 Sf 25 Viet. c. 97, «. 75, 
 ante, p. 507) ; and, if a male under sixteen years, with or without 
 whipping. — 24 Sf 25 Vict. c. 97, s. 30. As to requiring the offender to 
 enter into recognizances and find sureties for keeping the peace, Id. 
 s. 73 (an<e, p. 507). 
 
 This offence is not triable at quarter sessions, 5^6 Vict. c. 38, 
 s. 1 {ante, p. 104). 
 
Malicious Mischief. 53? 
 
 Evidence. 
 Prove that the defendant broke down or cut down the banks of 
 the river, situate as described in the indictment. Prove, also, that 
 the offence was committed maliciously (see ante, p. 508) ; and prove 
 that, in consequence of the breaking or cutting of the banks, certain 
 land was, or was in danger of being, overflowed, as stated in the 
 indictment. 
 
 Indictment for throwing down, etc.. Lochs on Rivers, etc. 
 
 Commencement as ante, p. 313] — a certain lock (" any quay, wharf, 
 jetty, lock, sluice, flood-gate, weir, tunnel, towing-path, drain, water- 
 course, or other work") belonging to a certain canal (" belonging to any 
 port, harbour, dock, or reservoir, or on or belonging to any navigable 
 
 river or canal"), called the , situate in the parish of B., in the 
 
 county of M., feloniously, unlawfully, and maliciously did throw dawn 
 (" throw, break or cut down, level, undermine, or otherwise destroy") ; 
 against the form [as ante, p. 347]. 
 
 Felony. See the last precedent. — 24 <& 25 Vict. c. 97, «. 3(X. 
 
 This offence is not triable at quarter sessions. 5 <6 6 Vict. c. 38, «. 1 
 (ante, p. 104). 
 
 Prove that the defendant threw down, etc., the lock io question, 
 upon the canal or navigable river, as described in the indictment ; 
 prove the local situation of the canal or rivei', and prove that it was 
 done maliciously. (See ante, p. 508.) 
 
 DESTROYING OK REMOVING, ETC., PILES, ETC., IN RIVERS, ETC. 
 
 Statute. 
 24 & 25 Vict. c. 97, s. 31.]— Whosoever shall unlawfully and ma- 
 liciously cut off, draw up, or remove any piles, chalk or other materials 
 fixed in the ground, and used for securing any sea-bank or sea-wall, 
 or the bank, dam or wall of any river, canal, drain, aqueduct, marsh, 
 reservoir, pool, port, harbour, dock, quay, wharf, jetty or lock, or 
 shall unlawfully and maliciously open or draw up any floodgate or 
 sluice, or do any other injury or mischief to any navigable river or 
 canal, with intent and so as thereby to obstruct or prevent the carry- 
 ing on, completing or maintaining the navigation thereof shall be 
 guilty of felony, and being convicted thereof shall be liable, at the 
 discretion of the court, to be kept in penal servitude for any term 
 not exceeding seven years, and not less than three years [now five 
 years, 27 c6 28 Vict. c. 47, s. 2, ante, p. 173], or to be imprisoned for 
 any term "not exceeding two years, with or without hard labour, and 
 with or without solitary confinement, and, if a male under the age of 
 sixteen years, with or without whipping. 
 
 Indictment for cutting, etc.. Piles, etc., in Rivers or Sea-Banks. 
 
 Commencement as ante, p. 313] — a certain pile (" any piles, chalk, 
 or other materials fiaied in thegroumi, and used for securing any sea-bank 
 
540 Malicious Mischief. 
 
 or sea-wall, or the hank, dam, or wall of any riven; canal, drain, aque- 
 duct,'marsh, reservoir, pool, port, harbour, dock, quay, wharf, jetty, or 
 locK") then fixed in the ground, and then used for securing the bank 
 
 of a certain river called the river , situate in the parish of B., in 
 
 the county of M., feloniously, unlawfully, and maliciously did cut off 
 (" cut off, draw up, or remove") ; against the form \as ante, p. 347], 
 
 Felony: penal servitude for not more than seven nor less than Jive 
 [27 S( 28 Vict. c. 47, s. 2, ante. p. 173] years, or imprisonment not ex- 
 ceeding two years, with or without hard labour, and with or without 
 solitary confinement {such confinement not exceeding one month at any 
 one time, nar three months in any one year, 24 Sf 25 Vict. c. 97, s. 7a, 
 ante, p. 507) ; and, if a male under sixteen years, with or without 
 whipping.— 'Hi Sf 25 Vict. c. 97, ». 31. As to requiring the offender 
 to enter into recognizances and find sureties for keeping tlie peace, Id. 
 s'. 73, ante, p. 507. 
 
 Evidence. 
 
 Prove that the pile was fixed in the ground, and used to secure the 
 bank of the river, situate as described in the indictment ; prove that 
 the defendant cut it, and prove that he did so maliciously. (See ante, 
 p. 608.) 
 
 Indictment for opening Flood-gates, etc., with Intent, etc. 
 
 Commencement as ante, p. 313] — feloniously, unlawfully, and mali- 
 ciously did open and draw up (" open or draw up any flood-gate or 
 sluice, or do amy other injury or mischief to amy navigable river, or 
 camaV) a certain flood-gate, situate in the parish of B., in the county 
 of M., of and belonging to a certain navigable river called the river 
 
 with intent thereby (" with intent and so as thereby") to obstruct' 
 
 and prevent (" obstruct or prevent") the carrying on (" carrying on, 
 completing or maintaining") of the navigation of the said navigable 
 river; and that the said J. S. thereby then did obstruct the carrying 
 on of the navigation of the said navigable river; against the form 
 [as ante, p. 347]. 
 
 Felony. See the last precedent. — 24 d 25 Vict. c. 97, s. 31. 
 
 Evidence. 
 
 Prove that the defendant opened or drew up the flood-gate of the 
 navigable river in question, in the parish stated in the indictment. 
 Prove that he did so maliciously (see amte, p. 508) ; prove the intent 
 from circumstances from which the jury may infer it (see ante, p. 208) ; 
 and prove that the navigation was obstructed (which alone will be 
 sufiicient evidence of the intent). 
 
 DESTEOYINS BRIDGES, VIADUCTS, AND AQUEDUCTS. 
 
 Statute. 
 '24 <& 25 Vict. c. 97, s. 33.]— Whosoever shall unlawfully and mali- 
 ciously pull or throw down or in anywise destroy any bridge (whether 
 over any stream of water or not), or any viaduct or aqueduct, over or 
 under which bridge, viaduct or aqueduct any highway, railway or 
 
Malicious Mischief. 641 
 
 canal shall pass, or do any injwy with intent and so as thereby to 
 render such bridge, viaduct or aqueduct, or the highway, railway or 
 canal passing over or under the same, or any part thereof, dangerous 
 or impassable, shall be guilty of felony, and being convicted thereof 
 shall be liable, at the discretion of the court, to be kept in penal 
 servitude for life or for any terra not less than three years [now five 
 years, 27 & 28 Vict. c. 47, s. 2, ante, p. 173], or to be imprisoned for 
 any term not exceeding two years, with or without hard labour, and 
 with or without solitary confiijement, and, if a male under the age of 
 siiteen years, with or without whipping. 
 
 Indictment for pulling down a Bridge. 
 
 Commencement as ante, p. 313] — a certain bridge (" any bridge, 
 whether over any stream of water or not"), situate in the parish of B., 
 in the county of M., feloniously, unlawfully and maliciously did pull 
 down and destroy ("pull or throw down, or in anywise destroy") ; 
 against the form [as ante, p. 347]. 
 
 Felon;/ : penal servitude for life or for not less than five [27 ^ 28 
 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment not exceeding 
 two years, with or without hard labour, and with or without solitary 
 confinement {such confinement not exceeding one month at any one 
 time, nor three months in any one year, 24 ^5" 25 Vict. c. 97, s. 75, 
 ante, p. 507] ; and, if a male under sixteen years, with or without 
 whipping. — 24 Sf 25 Vict, c, 97, s. 33. As to requiring the offender 
 to enter into recognizances and find sureties for keeping the peace, 
 Id. «. 73. ante, p. 607 
 
 This offence is not triable at quarter sessions. 5^6 Vict. c. 38, 
 s. 1 (ante, p. 104). 
 
 Evidence. 
 
 Prove that the defendant pulled down or destroyed the bridge, and 
 that it was situate as described in the indictment : and prove that it 
 was done maliciously. (See ante, p. 508.) It is immaterial whether 
 it was a bridge over a stream of water or not. 
 
 Indictment for injuring a Bridge, etc. 
 
 Commencement as ante, p. 313]— feloniously, unlawfully, and mali- 
 ciously did (state the injury) a certain bridge, situate in the parish of 
 B., in the county of M., with intent thereby (" with intent and so as 
 thereby") to render the said bridge (" such bridge or any part thereof") 
 dangerous and impassable : and that the said J. S. did thereby then 
 render the said bridge dangerous and impassable ; against the form 
 [as ante, p. 347]. 
 
 Felony. See the last precedent. — 24 tfe 25 Vict. c. 97, s. 33. 
 
 This offence is not triable at quarter sessions, 6 <& & Vict. c. 38, «. 1 
 (ante, p. 104). 
 
 Evidence. 
 Prove that the defendant did the injury to the bridge stated in the 
 indictment. Prove that the bridge is situated as described; and 
 prove that the act was done maliciously by the defendant. (See ante, 
 p. 508.) Circumstances must be proved, from which the intent may 
 be inferred (see ante, p. 208) ; and it must also be proved that the 
 bridge was, by the act of the defendant, rendered dangerous or im- 
 passable, which alone is reasonable evidence of the intent. 
 
542 Malicious Mischiefs 
 
 DESTROYING TUKNPIKE-GATES, ETC. 
 
 Statute. 
 24 <fe 25 Vict. c. 97, s. 34.] — Whosoever shall unlawfully and mali- 
 ciously throw down, level or otherwise destroy, in whole or in part, 
 any turnpike-gate or toll-bar, or any wall, chain, rail, post, bar, or 
 other fence belonging to any turnpike-gate or toll-bar, or set up or 
 erected to prevent passengers passing by without paying any toll 
 directed to be paid by any act of parliament relating thereto, or any 
 house, building or weighing-engine erected for the better collection, 
 ascertainment, or security of any such toll, shall be guilty of a misde- 
 meanor. 
 
 Indictment. 
 
 Commencement as ante, p. 313] — a certain turnpike-gate (" any 
 turnpike-gate or toll-bar, or any wall, chain, rail, post, bar, or other 
 fence belonging to any turnpike-gate or toll-ba/r, or set vp or erected to 
 prevent passengers passing by without paying any toll direct-ed to be 
 paid by any act or acts of parliament relating thereto, or any house, 
 building or weighing-engine erected for the better collection, ascertain- 
 ment or security of such toll") situate at the parish of B., in the county 
 of M., unlawfully and maliciously did throw down, level, and destroy 
 (" throw dovm, level, or otherwise destroy, in whole or in part") ; against 
 the form [as ante, p. 347]. 
 
 Misdemeanor : fine, or imprisonment, or both. — 24 & 25 Vict. c. 97, 
 s. 34 (see ss. 73, 74). 
 
 Evidence. 
 Prove that the defendant threw down, levelled, or otherwise de- 
 stroyed the turnpike-gate, situate as described in the indictment; 
 and that it was done maliciously. (See ante, p. 508.) 
 
 INJURIES TO RAILWAY TRAINS AND TELEGRAPHS. 
 
 Statute. 
 24 (6 25 Vict. c. 97, s. 35.] — Whosoever shall unlawfully and mali- 
 ciously put, place, cast, or throw upon or across any railway any 
 wood, stone, or other matter or thing, or shall unlawfully and ma- 
 liciously take up, remove, or displace any rail, sleeper, or other 
 matter or thing belonging to any railway, or shall unlawfully and 
 maliciously turn, move, (^ divert any points or other machinery be- 
 longing to any railway, or shall unlawfully and maliciously make or 
 show, hide or remove, any signal or light upon or near to any rail- 
 way, or shall unlawfully and maliciously do or cause to be done any 
 other matter or thing, with intent, in any of the cases aforesaid, to 
 obstruct, upset, overthrow, injure, or destroy any engine, tender, 
 carriage, or truck using such railway, shall be guilty of felony, and 
 being convicted thereof shall be liable, at the discretion of the court, 
 to be kept in penal servitude for life, or for any term not less than 
 three years [now fine years, 27 <§ 28 Vict. c. 47, «. 2, ante, p. 173], or 
 to be imprisoned for any term not exceeding two years, with or 
 
MaliciouB MiacMef, 543 
 
 without hard labour, and, if a male under the age of sixteen years, 
 with or without whipping. 
 
 Sect. 36.] — ^Whosoever, by any unlawful act, or by any wilful omis- 
 sion or neglect, shall obstruct or cause to be obstructed any engine 
 or carriage using any railway, or shall aid or assist therein, shall be 
 guilty of a misdemeanor, and being convictedthereof shall be liable, 
 at the discretion of the court, to be imprisoned for any term not ex- 
 ceeding two years, with or without hard labour. 
 
 Sect. 37.]— Whosoever shall unlawfully and maliciously cut, break, 
 throw down, destroy, injure, or remove any battery, machinery, wire, 
 cable, post, or other matter or thing whatsoever, being part of or 
 being used or employed in or about any electric or magnetic tele- 
 graph, or in the working thereof, or shall unlawfully and maliciously 
 prevent or obstruct in any manner whatsoever the sending, convey- 
 ance, or delivery of any communication by any such telegraph, shall 
 be guilty of a misdemeanor, and being convicted thereof shall be 
 liable, at the discretion of the court, to be imprisoned for. any term 
 not exceeding two years, with or without hard labour: Provided that 
 if it shall appear to any justice, on the examination of any person 
 charged with any offence against this section, that it is not expedient 
 to the ends of justice that the same should be prosecuted by indict- 
 ment, the justice may proceed summarily to hear and determine the 
 same, and the offender shall, on conviction thereof, at the discretion 
 of the justice, either be committed to the common gaol or house of 
 correction, there to be imprisoned only, or to be imprisoned and kept 
 to hard labour, for any term not exceeding three months, or else shall • 
 forfeit and pay such sum of money not exceeding ten pounds as to 
 the justice shall seem meet. 
 
 Sect. 38.] — Whosoever shall unlawfully and maliciously, by any 
 overt act, attempt to commit any of the offences in the last preced- 
 ing section mentioned, shall, on conviction thereof before a justice of 
 tlie peace, at the discretion of the justice, either be committed to the 
 common goal or house of correction, there to be imprisoned only, or 
 to be imprisoned and kept to hard labour, for any term not exceed- 
 ing three months, or else shall forfeit and pay such sum of money not 
 exceeding ten pounds as to the justice shall seem meet. 
 
 Indictment for placing Wood on Rails, with Intent, etc. 
 
 Commencement as ante, p. 313] — feloniously, unlawfuUj', aind mali- 
 ciously did put and place a piece of wood upon a certain railway 
 
 called , in the parish of B., in the county of M. ('^put,place, cast, 
 
 or throw vpon or across any railway any wood, stone, matter, or 
 thing"), with intent thereby then to obstruct, upset, overthrow, and 
 injure a certain engine and certain carriages using the said railway 
 (" mth, intent to ohstruct, upset, overthrow, inji)/re, 6r destroy any engine, 
 tender, carriage, or truck using rnch railway") ; against the form \_as 
 ante, p. 347]. [The intent may he laid in different ways in other counts, 
 if necessary.'] 
 
 Felony : penal servitude for life or for not less than Jive [27 & 28 
 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment not exceeding- 
 two years, with or without hard labour; and, if a male under sixteen 
 
544 Malicious Mischief. 
 
 pears, with or without whipping.— ii 6f 25 Vict. e. 97, s. 35. As to 
 requiring the offender to enter into recognizances and find sureties 
 for keeping the peace, Id. s. 73, ante, p. 507. 
 
 This offence is not triable at quarter sessions. 6 Sf 6 Vict. c. 38 s. 1 
 (ante, p. 104). 
 
 Evidence. 
 Prove that the defendant placed the piece of wood upon or across 
 the railroad named and situate as described in the indictment, or was 
 present aiding and assisting iu doing so. Prove that he did it mali- 
 ciously; (see ante, p. 508, and R. v. Holroyd, 2 M.d; Rob. 339.) The 
 intent may be inferred from circumstances from which the jury may 
 presume it (_see ante, p. 208). In general, the act's being done wil- 
 fully, and its being likely to obstruct or upset the railway train, 
 would be sufficient prima facie evidence of an intent to do so. Semble, 
 the intent to injure or destroy a train, provided against by this sec- 
 tion, is an intent to injure or destroy otherwise than by burning, 
 which is specially mentioned in sect. 4. See R. v. Sanderson, 1 F.ii 
 F. 37. It is to be observed, however, that the burning specially 
 mentioned in sect. 4 is the burning of " any station, engine-house, or 
 other building," and has nothing to do with carriages or trains. 
 That section, therefore, does not provide for intents to injure or de- 
 stroy trains by burning. The throwing of a lighted torch, however, 
 at a railway carriage with intent to burn it would seem to come 
 within the words of sect. 35, as the maliciously doing a thing with 
 intent to injure a carriage using the railway. Where the engine or 
 carriage is in fact obstructed, or the safety of the persons conveyed 
 .therein is in fact endangered by the defendant's act, but there is no 
 evidence of any of the intents mentioned in this section, the defend- 
 ant should be indicted for a misdemeanor, under sect. 36.' See R. v. 
 Bradford, Bell, 268; 29 L. J. {M. C.) 171. Where the defendant 
 had unlawfully altered some railway signals at a railway station, and 
 this alteration caused a train which would otherwise have passed the 
 station without slackening speed, to slacken speed, and to come 
 nearly to a stand, it was held {Martin, U., diss.), that he was guilty 
 of " obstructing" a train within the meaning of «. 36 q/ 24 c& 25 Viet, 
 c. 97. R. V. HadfieU, L. R, 1 C. C. R. 253; 39 L. J. {M. C.) 131. A 
 line of railway constructed and completed under the powers of an 
 act of parliament, and intended for the conveyance of passengers by 
 locomotive power, but not yet used for that purpose, but only for the 
 carriage of materials and workmen, is within the statute. Id. 
 
 DESTKOYING DAMS OP FISH-PONDS, ETC. 
 
 Statute. 
 
 24 & 25 Vict. c. 97, s. 82.] — ^Whosoever shall unlawfully and mali- 
 ciously cut through, break down, or otherwise destroy the dam, flood- 
 gate, or sluice of any fish-pond, or of any water which shall be pri- 
 vate property, or in which there shall be. any private right of fishery, 
 with intent thereby to take or destroy any of the fish in such pond 
 or water, or so as thereby to cause the loss or destruction of any of 
 the fish, or shall unlawfully and maliciously put any lime, or other 
 
Malicious Mischief. 545 
 
 hoxious material, in any such pond or water, with intent thereby to 
 destroy any of the fish that may then be or that may thereafter be 
 put therein, or shall unlawfully and maliciously cut through, break 
 down, or otherwise destroy the dam or floodgate of any mill-pond, 
 reservoir, or pool, shall be guilty of a misdemeanor, and being con- 
 victed thereof shall be liable, at the discretion of the court, to be 
 kept in penal servitude for any term not exceeding seven years and 
 not less than three years [now five years, 27 & 28 Vict. c. 47, s. 2, 
 ante, p. 173], or to be imprisoned for any term not exceeding two 
 years, with or without hard labour, and with or without solitary con- 
 finement, and, if a male under the age of sixteen years, with or with- 
 out whipping. 
 
 Indictment for hreahing down the Dam of a Fish-pond. 
 
 Commencement as ante, p. 313] — the dam of a certain fish-pond 
 (" the dam, floodgate, or sluice of any fish-pond, or of any water which 
 shall be private property, or in which there shall he any private right of 
 fishery'^ of one J. N., situate in the parish of B., in the county of 
 M., unlawfully and maliciously, did break down and destroy (" cut 
 through, break down, or otherwise destroy""), with intent thereby then 
 to take and destroy the fish in the said pond then being [or, and did 
 thereby then cause the loss and destruction of divers of the fish in 
 the said pond then being] ; against the form [as ante, p. 347]. 
 
 Misdemeanor: penal servitude for not more than seven nor less than 
 five [27 Sc 28 Vict. c. 47, s. 2, ante,p 173] years, or imjrrisonment not 
 exceeding two years, with or without hard labour, and with or without 
 solitary confinement {such cojifinement not exceeding one month at any 
 one time, nor three months in any one year, 24 ^ 2-3 Vict. c. 97, .■!. To, 
 ante, p. 607) ; and, if a male under sixteen years of age, with or without 
 whipping.— 2i Sf 2o Vict. e. 97, s. 32. As to fining the offender and 
 requiring him to enter into recognizances and find sureties for heeping 
 the peace and being of good behaviour, Id. s. 73, ante, p. 507. 
 
 Evidence. 
 
 Prove that the defendant broke down or destroyed the dam of the 
 fish-pond of J. N., situate as described in the indictment, and that it 
 was done maliciously (see ante, p. 608); and prove circumstances from 
 which the intent may be inferred (see ante, p. 208) ; and if the loss of 
 fish be stated in the indictment, prove that fact. 
 
 Indictment for putting Lim^ into a Fish-pond. 
 
 Commmcement as ante, p. 313] — unlawfully and maliciously did 
 put a large quantity, to wit, ten bushels of lime (" lime or other 
 noxious material") into a certain fish-pond (see the last precedent) of 
 one J. N., situate at the parish of B., in the county of M., with intent 
 thereby then to destroy the fish in the said pond then being; against 
 the form [as ante, p. 347]. 
 
 Misdemeanor. See the last precedent— ii & 25 Vict. c. 97, s. 32. 
 
 Fmideiwe. 
 Prove that the defendant put lime, etc., into the fish-pond of J. N., 
 situate as described in the indictment, and that it was done maliciously 
 
546 Malicious Mischief. 
 
 (see ante, p. 508) ; and prove circumstances from which the jury may 
 infer the intent (see ante, p. 208), as that the lime or other noxious 
 thing would destroy the fish. 
 
 Indictment for Ireahing down a Mill Dam. 
 
 Commencement as ante, p. 313] — ^the dam (" dam or flooc^ate") 
 of a certain mill-pond ("mill-pond, reservoir or poof) of J. N., 
 situate at the parish of B., in the county of M., unlawfully and mali- 
 ciously did break down and destroy {"cut through, break down, or 
 otherwise destroy"^ ; against the form \as ante, p. 347]. 
 
 Misdemeanor. See the last precedent hut one. — 24 & 25 Vict. e. 97, 
 «. 32. 
 
 Evidemce. 
 
 Prove that the defendant broke down the dam of a mill-pond in 
 the occupation of J. N., situate as described in the indictment ; and 
 prove that it was done maliciously. {See ante, p. 508.) 
 
 KILLING OR MAIMING CATTLE. 
 
 Statute. 
 
 24 & 25 Vict. c. 97, s. 40.] — ^Whosoever shall unlawfully and mali- 
 ciously kill, maim or wound any cattle shall be guilty of felony, and 
 being convicted thereof shall be liable, at the discretion of the court, 
 to be kept in penal servitude for any term not exceeding fourteen 
 and not less than three years [now five years, 27 & 28 Vict. c. 47, 
 s. 2, ante, p. 173] ; or to be imprisoned for any term not exceeding 
 two years, with or without hard labour, and with or without solitary 
 confinement. 
 
 Sect. 41 — Killing or ntaiming Animals other thorn Cattle.'] — Whoso- 
 ever shall unlawfully and maliciously kill, maim, or wound any dog, 
 bird, beast, or other animal, not being cattle, but being either the 
 subject of larceny at common law, or being ordinarily kept in a state 
 of confinement, or for any domestic purpose, shall, on conviction 
 thereof before a justice of the peace, at the discretion of the justice, 
 either be committed to the common gaol or house of correction, 
 there to be imprisoned only, or to be imprisoned and kept to hard 
 labour, for any term not exceeding six months, or else shall forfeit 
 and pay, over' and above the amount of injury done, such sum of 
 money not exceeding twenty pounds as to the justice shall seem 
 meet; and whosoever, having been convicted of any such offence, 
 shall afterwards commit any of the said offences in this section 
 before mentioned, and shall be convicted thereof in like manner, 
 shall be committed to the common gaol or house of correction, there 
 to be kept to hard labour for such term not exceeding twelve months 
 as the convicting justice shall think fit. 
 
 Indictment for hilling a Horse. 
 
 Commencement as ante, p. 313] — one horse (" am/ cattle"), of the 
 goods and chattels of J. N., feloniously, unlawfully, and maliciously 
 
Malicious Mischief. 547 
 
 did kill ("hill, maim, or wouneP'); against the form l_as ante, p. 347]. 
 The particular species of cattle killed, maimed, or wounded, must be 
 specified; an allegation that the prisoner maimed certain cattle is not 
 sufficient. R. v. Chalhley, R.Sf R. 2o8. The word "cattle" is the 
 only word used in the iOth section of the statute ; and this, informer 
 statutes upon this subject (9 O. I, c. 2'2, «. 1 ; 4 6r. 4, c. 54, s. 2) has 
 been holden to include horses, as well as oxen, etc.. R. v. Paty, 2 W. 
 Bl. 721 ; and also piqs, R. v. Chappie, R. Sj' R. 77 ; and asses, R. v. 
 Whitney, 1 Mood. 6. C. 3. 
 
 Felony : penal servitude for not more thanfourteen nor less than five 
 [27 ^ 28 Vict, c. 47, s. 2, ante, p. 173] years, or imprisonment not ex- 
 ceeding two years, with or without hard labour, and with or without 
 solitary confinement (such confinement not exceeding one month at any 
 one time, nor three months in any one year, 24 Sf 25 Vict. c. 97, s. 75, 
 ante, p. 507). — 24 Sr 25 Vict. c. 97, s. 40. As to requiring the offender 
 to enter into recognizances and find sureties for keeping the peace, Id. 
 s. 73, ante, p. 507. 
 
 Evidence. 
 
 Prove that the defendant killed the horse, the property of J. N. 
 Prove also that it was done maliciously (see ante, p. 508) ; but it is 
 not now necessary, as it was formerly, to prove the offence to have 
 been committed from malice to the owner. 24 & 25 Vict. c. 97, s. 58, 
 ante, p. 505: -ffi. v. Tivey, 1 Den. 6S; 1 C. <& K. 704. 
 
 Upon an indictment for administering sulphuric acid to a horse, 
 evidence may be given of other acts of administering, in order to 
 show the intent. R. v. Mogg, 4 C. d P. 364. 
 
 To constitute a maiming within the statute, a permanent injury 
 must be inflicted on the animal. R. v. Jeans, 1 C. <& K. 539. But 
 if a wounding be alleged, it Is not necessary to prove a permanent 
 injury. Where the wounding proved was driving a nail into the 
 frog of a horse's foot, but it .appeared that the horse was likely to 
 recover, it was objected that no wounding was within the meaning of 
 the act that was not productive of permanent injury to the animal ; but 
 the judges overruled the objection, holding that the word "wound" . 
 was used by the legislature as contradistinguished from maiming, 
 which is a permanent injury. R. v. Haywood, 2 East, P. C. 1076; 
 R. & R, 16. It is not necessary to constitute a wounding withiii 
 this section that any instrument other than the hand should be used. 
 R. V. Bulloch, L. R., 1 C. C. R. 115; 37 L. J. {M. C.) 47. 
 
 Upon an indictment for killing, wounding, and maiming a niare, it 
 appeared that the defendant poured nitrous acid into her ears, some 
 of which either ran into her eye, or was poured into it, and blinded 
 her: she was killed by her owner, and surgeons proved that the in- 
 juries done to the ear were not wounds, but ulcers ; the defendant 
 was therefore convicted of the maiming, and the judges held the 
 conviction right. R. v. Owens, 1 Mood. C. C. 205. 
 
 Upon an indictment for wounding a sheep, it appeared that the 
 prisoner set a dog at the sheep, which bit it; and Parh, J., held that 
 this was not a wounding within the meaning of the repealed stat. 
 4 (?. 4, c. 54, s. 2. R. y. Sughes,2 C.tH; P. 420. But where the pri- 
 soner set fire to a cow-house, in which was a cow, which was 
 burnt to death, Taimton, J., held that the prisoner could be con- 
 victed upon an indictment for killing the cow. R. v. Haughton, 5 C. 
 & P. 559. 
 
548 Malicious Mischief. 
 
 DESTROYING HOPBINDS. 
 
 Statute. 
 
 24 «£ 25 Vict. c. 97, s. 19.] — Whosoever shall unlawfully and mali- 
 ciously cut or otherwise destroy any hopbinds growing on poles in 
 any plantation of hops, shall be guilty of felony, and being convicted 
 thereof shall be liable, at the discretion of the court, to be kept in 
 penal servitude for any term not exceeding fourteen and not less 
 than three years [now five years, 27 <& 28 Vict. c. 47, g. 2, ante, 
 p. 173], or to be imprisoned for any term not exceeding two years, 
 with or without hard labom-, and with or without solitary confine- 
 ment; and, if a male under the age of sixteen years, with or without 
 whipping. 
 
 Indictment. 
 
 Commencement as ante, p. 313] — one thousand hopbinds, the pro- 
 perty of J. N., then growing on poles in a certain plantation of hops 
 of the said J. N., situate in the parish of B., in the county of K., 
 feloniously, unlawfully, and maliciously did cut and destroy (" cut or 
 otherwise destroy); against the form [as ante, p. 347]. 
 
 Felony: penal servitude for not more thanfourteen nor less timnfive 
 [27 ^ 28 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment not ex- 
 ceeding two years, with or without hard labour, and with or without 
 solitary confinement (such confinement not exceeding one month at any 
 one time, and not exceeding three months in any one year, 24 6^ 25 yiet, 
 c. 97, *. 75, ante, p. 507) ; and, if a male under the age of sixteen, 
 with or without whipping. — 24 ^ 25 Vict. c. 97, ». 19. As to requiring 
 the offender to enter into recognizances and find sureties for keeping 
 the peace, Id. s. 73, ante, p. 507. 
 
 Ekidence. 
 
 Prove that the defendant cut or otherwise destroyed the hopbinds, 
 or some part of them, as alleged: that they were at the time gi-owing 
 in a plantation of hops, situate as described; and that the plantation 
 belonged to J. N. Prove, also, that the act was done maliciously. 
 (See ante, p. 508.) 
 
 DESTROYING TREES, ETC. 
 
 Statute. 
 
 24 & 25 Vict.c. 97, «. 20.]— "VVTiosoever shall unlawfully and mali- 
 ciously cut, break, bark, root up, or otherwise destroy or damage 
 the whole or any part of any tree, sapling, or shrub, or any under- 
 wood, growing in any park, pleasure-ground, garden, orchard, or 
 avenue, or in any ground adjoining or belonging to any dwelling- 
 house (in case the amount of the injury done shall exceed the sum 
 of one pound) shall be guilty of felony, and being convicted thereof 
 shall be liable, at the discretion of the court, to be kept in penal 
 servitude for the term of three years [now five years, 27 <fe 28 Vict, 
 c. 47, s. 2, ante, p. 173], or to be imprisoned for any term not ex- 
 ceeding two years, with or without hard labour, and with or without 
 
Malicious Mischief. 549 
 
 solitary confinement; and, if a male under the age of sixteen years, 
 with or without whipping. 
 
 Sect. 21.] — Whosoever shall unlawfully and maliciously cut,hreak, 
 bark, root up, or otherwise destroy or damage, the whole or any part 
 of any tree, sapling, or shrub, or any underwood, growing elsewhere 
 than in any park, pleasure-ground, garden, orchard, or avenue, or in 
 any ground adjoining to or belonging to any dwelling-house (in case 
 the amount of injury done shall exceed the sum of five pounds) 
 shall be guilty of felony, and being convicted thereof shall be liable, 
 at the discretion of the court, to be kept in penal servitude for the 
 term of three years [now Jive years, 27 <& 28 Vict. c. 47, s. 2, ante, 
 p. 173], or to be imprisoned for any term not exceeding two years, 
 with or without hard labour, and with or without solitary confine- 
 ment; and, if a male under the age of sixteen yearsj with or without 
 whipping. 
 
 Indictment for cutting, dc, Trees, &c., in ParJcs, etc.. Value above £1. 
 
 Commencement as ante, p. 313] — two elm trees (" the whole or any 
 part of any tree, sapling or shrub, or any underwood") the property 
 of J. N., then growing in a certain park (" park, pleasure-grotmd, 
 garden, orchard, or avenue, or any grovmd adjoining or belonging to 
 
 a dwelling-house"), of the said J. N., situate in the parish of , in 
 
 the county of , feloniously, unlawfully and maliciously did cut 
 
 and damage (" cut, break, bark, root up, or otherwise destroy or 
 danuige"), thereby then doing injury to the said J. N., to an amount 
 exceeding the sura of one pound, to wit, the amount of two pounds ; 
 against the form [as ante, p. 347] . A coimt may be added for cutting 
 with intent to steed the trees. (Sec amte, p. 361.) 
 
 Felony: penal servitude for five [27 ^ 28 Vict. c. 47, s. 2, ante, 
 p. 173] years, or imprisonment not exceeding two years, with or 
 without hard labour, and with or without solitary confinement I such 
 confinement not exceeding one month at any one time, nor three months 
 in any one year, 24 Sf 25 Vict. c. 97, s. 75, ante, p. 507); and, if a 
 male under sixteen years of age, with or without whipping. — 24 Sf 25 
 Vict. e. 97, s 20. As to requiring the offender to enter into recogni- 
 zances and find sureties for keeping the peace. Id. s. 73, ante, p. 507. 
 
 Evidence. 
 
 Prove that the defendant " cut, broke, barked, rooted up, or other- 
 wise destroyed or damaged" (these are the words in the statute) one 
 or more of the trees mentioned in the indictment, and that the injury 
 done exceeds the sum of one pound. A variance in the number of 
 trees is not material. Prove that the trees, at the time, were grow- 
 ing in a park situate as described in the indictment (^or, " in a plea- 
 sure-ground, garden, orchard, or avenue, or in any ground adjoining 
 or belonging to a dwelling-house") ; see R. v. Hodges, M. & M. 
 841 (ante, p. 362) ; and that they were the property of J. N. Prove, 
 also, that the trees were cut maliciously {see ante, p. 608) ; but if it 
 be doubtful whether the defendant did not intend to steal the trees, 
 add a count to meet that. {See ante, p. 208.) 
 
550 Malicious Mischief. 
 
 Indictment for cutting, etc., Trees, etc., growing elsewhere, Value 
 above £5. 
 
 Commencement as ante, p. 313] — ten elm trees (see the last pre- 
 cedent), the property of J. N., then growing in a certain close (" else- 
 where than in a park," etc., see the last precedent) of the said J. N. 
 situate in the parish of , in the county of , feloniously, un- 
 lawfully, and maliciously did cut and damage (see the last precedent), 
 thereby then doing injury to the said J. N. to an amount exceeding 
 the sum of five pounds, to wit, the amount of six pounds ; against the 
 form [as ante, p. 347]. 
 
 Felony. See the last precedent. — 24 & 25 Vict. c. 97, s. 21. 
 
 Evidence. 
 Prove that the defendant cut, etc., the trees mentioned in the in- 
 dictment, or some of them ; that the trees were the property of 
 J. N., that is, that they were growing on land belonging to him, or in 
 his occupation : that the damage exceeds five pounds ; and that the 
 cutting was done maliciously. The " amount of injury done" means 
 the actual injury done to the trees, etc., by the defendant's act ; it is 
 not sufficient to bring the case within the statute, that, although the 
 amount of such actual injury is less than 51., the amount of conse- 
 quential damage (as by its being necessary, in consequence of the 
 defendant's act to stub up and replace a hedge) would exceed 5/. 
 R. V. Whiteman, Dears. 353; 23 L. J. (M. C.) 120. (See ante, p. 362.) 
 It is not necessary to prove that the trees grew elsewhere than in a 
 park, etc. 
 
 DESTROYING TREES, ETC., AFTER TWO PREVIOrs CONVICTIONS. 
 
 Statute. 
 24 c6 25 Vict. c. 97, s. 22.] — Whosoever shall unlawfully and mali- 
 ciously cut, break, bark, root up, or otherwise destroy or damage the 
 whole or any part of any tree, sapling, or shrub, or any underwood, 
 wheresoever the same may be growing, the injury done being to the 
 amount of one shilling at the least, shall, on conviction thereof be- 
 fore a justice of the peace, at the discretion of the justice, either be 
 committed to the common gaol or house of correction, there to be 
 imprisoned only, or to be imprisoned and kept to hard labour for any 
 term not exceeding three months, or else shall forfeit and pay, over 
 and above the amount of the injury done, such sum of money, not 
 exceeding five pounds, as to the justice shall seem meet; and who- 
 soever, having been convicted of any such offence, either against this 
 or any former act of parliament, shall afterwards commit any of the 
 said offences in this section before mentioned, and shall be convicted 
 thereof in like manner, shall for such second offence be committed 
 to the common gaol or bouse of correction, there to be kept to hard 
 laboiir for such term, not exceeding twelve months, as the convicting 
 justice shall think fit ; and whosoever, having been twice convicted 
 of any such offence (whether both or either of such convictions shall 
 have taken place before or after the passing of this act), shall after- 
 wards commit any of the said offences in this section before men- 
 
Malicious Mischief. 551 
 
 tioned, shall be guilty of a misdemeanor, and being convicted thereof 
 shall be liable, at the discretion of the court, to be imprisoned for 
 any term not exceeding two years, with or without hard laboui-, and 
 with or without solitary confinement ; and, if a male under the age 
 of sixteen years, with or without whipping. 
 
 Jndictmmt after two previous Convictions for cutting Trees, etc., 
 wheresoever growing, Value Is. 
 
 Middlesex, to wit :— The jurors for our lady the Queen, upon their 
 
 oath present, that J. S., on the day of , A.D. 1866, one elm 
 
 tree (" the whole or any part of any tree, sapling or shrub, or any 
 vmderwoodC) the property of J. N., then growing on certain land of 
 the said J. N., in the parish of , in the county of , unlaw- 
 fully and maliciously did cut and damage (" eat, break, bark, root up, 
 or otherwise destroy or damage"), thereby then doing injury to the 
 said J. N., to the amount of two shillings; against the form of the 
 statute in such case made and provided: And the jurors aforesaid, 
 upon their oath aforesaid, do say, that heretofore and before the 
 committing of the offence hereinbefore mentioned [stating the two 
 previous convictions as in the precedent at p. 3631. — The subsequent 
 offence is first stated in this precedent, but that does not seem to be 
 necessary, as the 24 if 2.5 Vict. c. 97, contains no provisinn similar to 
 that contained in s. 116 of 24 ^ 2j Vict. c. S6, which, in cases falling 
 under it, requires the subsequent offence to be first charged. It seems 
 also to be the better opinion that the latter part of the last-named sec- 
 tion, regulating the proceedings upon indictments for committing any 
 offence after a previous conviction or convictions, only applies to sub- 
 sequent offences against the Larceny Act. {See Greaves' Criminal 
 law Acts (2nd ed.) p. 203 ; 2 Russ. C. ^ M., by Greaves (4th ed.) 
 349 ,' and there is no analogous provision in the 24 ^ 25 Vict. c. 97. 
 
 Misdemeanor: imprisonment not exceeding two years, with or 
 without hard labour, and with or without solitary confinement (such 
 confinement not exceeding one month at any one time nor three months 
 in any one year, 24 <J- 25 Vict. c. 97, s. 75, ante, p. 507) ; and, if a 
 male under sixteen years of age, vnth or without whipping. — 24 Sf 25 
 Vict. c. 97, s. 22. As to fining the offender and requiring him to 
 enter into recognizances and find sureties for keeping the peace and 
 being of good beliaviour. Id. s. 73, ante, p. 507. 
 
 Prove that the defendant cut and damaged the tree, the property 
 of J. N. ; prove that it was done maliciously (see ante, p. 508) ; and 
 prove that the damage exceeds Is. (See ante, pp. 361, 362.) Prove 
 the two previous convictions in the manner directed by 24 t6 25 Viet, 
 c. 97, s. 70, ante, p. 506, and the identity of the defendant. 
 
 DESTROYING PLANTS, KTC. 
 
 Statute. 
 24 (& 25 Vict. c. 97, s. 23.]— Whosoever shall unlawfully and ma- 
 liciously destroy, or damage with intent to destroy, any plant, root. 
 
552 Malicious Mischief. 
 
 fruit or vegetable production, growing in any garden, orchard, nur- 
 Bery-ground, hothouse, greenhouse or conservatory, shall, on convic- 
 tion thereof before a justice of the peace, at the discretion of the 
 justice, either be committed to the common gaol or house of correc- 
 tion, there to be imprisoned only, or to be imprisoned and kept to 
 hard labour, for any term not exceeding six months, or else shall 
 forfeit and pay, over and above the amount of the injury done, such 
 sum of money not exceeding twenty pounds as to the justice shall 
 seem meet; and whosoever, having been convicted of any such 
 offence, either against this or any former act of parliament, shall 
 afterwards commit any of the said offences in this section before 
 mentioned, shall be guilty of felony, and being convicted thereof 
 shall be liable, at the discretion of the court, to be kept in penal ser- 
 vitude for the term of three years \nowfiBe years, 27 d; 28 Vict. c. 47, 
 s. 2, ante, p. 173], or to be imprisoned for any term not exceeding 
 two years, with or without hard labour, and with or without solitary 
 confinement; and, if a male under the age of sixteen years, with or 
 without whipping. 
 
 Indictment after a previous Conviction, for destroying Plants, etc., 
 in a Garden, etc. 
 
 Middlesex, to wit: — The jurors for our lady the Queen upon their 
 
 oath present, that J. S., on the day of , a.d. 1866, twenty 
 
 pounds' weight of grapes (" any plant, root, fruit, or vegetable pro- 
 duction'^, the property of J. N., in a certain garden (" in any garden, 
 orchard, nursery-ground, hothouse, greenhouse, or conservatory") of the 
 
 said J. N., situate in the parish of , in the county of , then 
 
 growing, feloniously, unlawfully and maliciously did destroy (" de- 
 stroy or damage with intent to destroy"), against the form of the sta- 
 tute in such case made and provided: And the jurors aforesaid, 
 upon their oath aforesaid, do say, that heretofore and before the 
 committing of the offence hereinbefore mentioned Istating the pre- 
 vious conviction as in the precedent at p. 363, ante']. See the note to 
 the last precedent. 
 
 Felony : penal servitude for fine [27 & 28 Vict, c, 47, s. 2, ante, 
 p. 173] years, or imprisonment not exceeding two years, vAth or without 
 hard labour, and imth or without solitary confinement {such confinement 
 not exceeding one, month at any one time, nor three months in any one 
 year, 24 <fc 25 Vict. c. 97, s. 75, ante, p. 507) ; and, if a male wider 
 sixteen years of age, with or without whipping. — 24 S 25 Vict. c. 97, 
 s. 23. As to requiring the offender to enter into recognizances and find 
 sureties for keeping the peace, Id. s. 73, ante, p. 507. 
 
 Evid^tee. 
 
 Prove the second offence stated in the indictment ; that the de- 
 fendant destroyed the grapes ; that they were, at the time, growing 
 in the garden of J. N., situate as described in the indictment; and 
 that the offence was committed maliciously. {See ante, p. 508.) 
 Prove the previous conviction in the manner directed by 24 S 25 
 Vict. c. 97, s. 70 (ante, p. 506), and the identity of the defendant 
 
 The words " plant" or " vegetable production" do not apply to 
 young trees. R. v. Hodges, M. & M. 341. {See ante, p. 368). 
 
Malicious Mischief. 553 
 
 DESTROYING OR DAMAGING WOKKS OF ART, ETC., IN 
 MUSEUMS, ETC. 
 
 Statute. 
 24 (& 25 Vict. c. 97, s. 39.] — Whosoever shall unlawfully and mali- 
 ciou.sly destroy or damage any book, manuscript, picture, print, sta- 
 tue, bust or vase, or any other article or thing kept for the purposes 
 of art, science, or literature, or as an object of curiosity, in any mu- 
 seum, gallery, cabinet, libraiy or other repository, which museum, 
 gallery, cabinet, library, or other repository, is either at all times, 
 or from time to time, open for the admission of the public or of 
 any considerable number of persons to view the same, either by the 
 permission of the proprietor thereof, or by the payment of money 
 before entering the same, or any picture, statue, monument or other 
 memorial of the dead, painted glass, or other ornament or work of 
 art, in any church, chapel, meeting-house, or other place of divine 
 worship, or in any building belonging to the queen, or to any county, 
 riding, division, city, borough, poor law union, parish or place, or to 
 any university, or college or hall of any university, or to any inn of 
 court, or in any street, square, churchyard, burial ground, public 
 garden or ground, or any statue or monument exposed to public 
 view, or any ornament, railing or fence surrounding such statue or 
 monument, shall be guilty of a misdemeanor, and being convicted 
 thereof shall be liable to be imprisoned for any term not exceeding 
 six months, with or without hard labour, and, if a male under the 
 age of sixteen years, with or without whipping; provided that 
 nothing herein contained shall be deemed to affect the right of 
 any person to recover, by action at law, damages for the injury so 
 committed. 
 
 MALICIOUS INJURIES TO PROPERTY TO AMOUNT OF FIVE POUNDS. 
 
 Statute. 
 
 24 <fe 25 Vict. c. 97, s. 51.]— Whosoever shall unlawfully and ma- 
 liciously commit any damage, injury, or spoil to or upon any real or 
 personal property whatsoever, either of a public or private nature, 
 for which no punishment is hereinbefore provided, the damage, in- 
 jury or spoil being to an amount exceeding five pounds, shall be 
 guilty of a misdemeanor, and being convicted thereof shall be liable, 
 at the discretion of the court, to be imprisoned for any term not ex- 
 ceeding two years, with or without hard labour; and in case any 
 such offence shall be committed between the hours of nine of the 
 clock in the evening and six of the clock in the next morning, shall 
 be liable, at the discretion of the court, to be kept in penal servitude 
 for any term not exceeding five years and not less than three [now 
 five years, 27 <& 28 Vict. c. 47, s. 2, ante, p. 173], or to be imprisoned 
 for any term not exceeding two years, with or without hard labour. 
 
 Sect. 54 — Makivg Gunpowder, etc. to commit Offences.l — Whoso- 
 ever shall make or manufacture, or knowingly have in his posses- 
 sion, any gunpowder or other explosive substance, or any dangei'ous 
 
 W. ' BB 
 
554 Forgery. 
 
 or noxious thing, oi* any machine, engine, instrument or thing, with 
 intent thereby or by means thereof to commit, or for the plurpose of 
 enabling any other person to commit, any of the felonies in this 
 act mentioned, shall be guilty of a misdemeanor, and being con- 
 victed thereof shall be liable, at the discretion of the court, to be 
 imprisoned for any term not exceeding two years, with or without 
 hard labour, and with or without solitary confinement; and, if a 
 male under the age of sixteen years, with or without whipping. 
 
 Sect. 7. 
 
 FORGERY. 
 
 FORGERY GENERALLY. 
 
 Statute. 
 24 & 25 Vict. c. 98, s. 41 — Verme for Forgery.'] — If any person 
 shall commit any offence against this act, or shall commit any offence 
 of forging or altering any matter whatsoever, or of offering, uttering, 
 disposing of, or putting off any matter whatsoever, knowing the same 
 to be forged or altered, whether the offence in any such case shall 
 be indictable at common law, or by virtue of any act passed or to be 
 passed, every such offender may "be dealt with, indicted, tried, and 
 punLshed, in any county or place in which he shall be apprehended or 
 be in custody, in the same manner in all respects as if his offence 
 had been actually committed in that county or place; and every 
 accessory before or after the fact to any such offence, if the same be 
 a felony, and every person aiding, abetting or counselling the com- 
 mission of any such offence, if the same be a misdemeanor, may be 
 dealt with, indicted, tried and punished, in any county or place in 
 which he shall be apprehended or be in custody, in the same manner 
 in all respects as if his offence, and the offence of his principal, bad 
 been actually committed in such county or place. 
 
 Sect. 42 — Form of Indictment.'] — In any indictment for forgingj 
 altering, offering, uttering, disposing, or putting off any instrument, 
 it shall be sufficient to describe such instrument by any name or de- 
 signation by which the same may be usually known, or by the pur- 
 port thereof, without setting out any copy, or fac-simile thereof^ or 
 otherwise describing the same or the value thereof. 
 
 Sect. 43.]— In any indictment for engraving or making the whole 
 or any part of any instrument, matter, or thing whatsoever, or for 
 using or having the unlawful custody or possession of any plate or 
 other material upon which the whole or any part of any instrument, 
 matter or thing whatsoever, shall have been engraved or made, or 
 for having .the unlawful custody or possession of any paper, upon 
 which the whole or any part of any instrument, matter, or thing 
 whatsoever, shall have been made or printed, it shall be sufficient to 
 describe such instrument, matter or thing, by any name or designa- 
 tion ty which the same may be usually known, without setting out 
 
Forgery. 555 
 
 any copy or fao-simile of the whole or any part of such instrument, 
 matter or thing. 
 
 Sect. 44 — Intent to defraud.'] — It shall be sufficient, in any indict- 
 ment for forging, altering, uttering, offering, disposing of, or putting 
 off any instrument whatsoever, where it shall be necessary to allege 
 an intent to defraud, to allege that the party accused did the act with 
 intent to defraud, without alleging an intent to defraud any particular 
 person ; and on the trial of any such offence it shall not be necessary 
 to prove an intent to defraud any particular person; but it shall be 
 sufficient to prove that the party accused did the act charged with an 
 intent to defraud. 
 
 Sect. 45 — Oriminal Possession.'] — Where the having any matter in 
 the custody or possession of any person is in this act expressed to be 
 an offence, if any person shall have any such matter in his personal 
 custody or possession, or shall knowingly and wilfully have any such 
 matter in the actual custody or possession of any other person, or 
 shall knowingly and wilfully have any such matter in any dwelling- 
 house or other building, lodging, apartment, field, or other place, 
 open or inclosed, whether belonging to or occupied by himself or 
 not, and whether such matter shall be so had for his own use or for 
 the use or benefit of another, every such person shall be deemed and 
 taken to have such matter in his custody or possession within the 
 meaning of this act. 
 
 Sect 38 — Derfianding Properly upon Forged Instruments.'] — Who- 
 soever, with intent to defraud, shall demand, receive, or obtain, or 
 cause or procure to be delivered or paid to any person, or endeavour 
 to receive or obtain, or to cause or procure to be delivered or paid to 
 any person, any chattel, money, security for money, or other property 
 whatsoever, under, upon, or by virtue of any forged or altered in- 
 strument whatsoever, knowing the same to be forged or altered, or 
 under, upon, or by virtue of any probate or letters of administration, 
 knowing the will, testament, codicil, or testamentary writing, on 
 which such probate or letters of administration shall have been ob- 
 tained to have been forged or altered, or knowing such probate or 
 letters of administration to have been obtained by any false oath, 
 affirmation, or affidavit, shall be guilty of felony, and being con- 
 victed thereof shall be liable, at the discretion of the court, to be 
 kept in penal servitude for any term not exceeding fourteen years 
 and not less than three years {now five years, 27 S 28 Vict. c. 47, s. 2, 
 ante, p. 173], or to be imprisoned for any term not exceeding two 
 years, with or without hard labour, and with or without solitary con- 
 finement. 
 
 Sect. 39 — Forging and uttering of Instruments designated informer 
 Acts by any special Name or Description.] — Where by this or by any 
 other act any person is or shall hereafter be made liable to punish- 
 ment for forging or altering, or for offering, uttering, disposing of, or 
 putting off, knowing the same to be forged or altered, any instrument 
 or writing designated in such act by any special name or description, 
 and such instrument or writing, however designated, shall be in law 
 a will, testament, codicil, or testamentary writing, or a deed, bond, 
 or writing obligatory, or a bill of exchange, or a promissory note fOr 
 the payment of money, or an indorsement on or assignment of a bill 
 
 bb2 
 
556 Forgery. 
 
 of exchange or promissory note for the payment of money, or an 
 acceptance of a bill of exchange, or an undertaking, warrant, order, 
 authority or request for the payment of money, or an indorsement 
 on or assignment of an undertaking, warrant, order, authority, or 
 request for the payment of money, within the true intent and mean- 
 ing of this act, in every such case the person forging or altering such 
 instrument or writing, or offering, uttering, disposing of, or putting 
 off such instrument or writing knowing the same to be forged or 
 altered, may be indicted as an offender against this act, and punished 
 accordingly. 
 
 Sect. 40 — Forging and uttering in England or Ireland Imtrwments 
 made and payable elsewhere, and vice versa.'] — AVhere the forging or 
 altering any writing or matter whatsoever, or the offering, uttering, 
 disposing of, or putting off any writing or matter whatsoever, know- 
 ing the same to be forged or altered, is in this act expressed to be an 
 offence, if any person shall, in England or Ireland, forge or alter, or 
 offer, utter, dispose of, or put off, knowing the same to be forged or 
 altered, any such writing or matter in whatsoever place or country 
 out of England and Ireland, whether under the dominion of her 
 Majesty or not, such writing or matter may purport to be made or 
 may have been made, and in whatever language the same or any part 
 thereof may be expressed, every such person, and every person aid- 
 ing, abetting, or counselling such person, shall be deemed to be an 
 offender within the meaning of this act, and shall be punishable 
 thereby in the same manner as if the writing or matter had pur- 
 ported to be made or had been made in England or Ireland: and if 
 any person shall in England or Ireland forge or alter, or offer, utter, 
 dispose of, or put off, knowing the same to be forged or altered, any 
 bill of exchange or any pi-omissory note for the payment of money, 
 or any indorsement on or assignment of any bill of exchange or pro- 
 missory note for the payment of money, or any acceptance of any 
 bill of exchange, or any undertaking, warrant, order, authority or 
 request for the payment of money, or for the deliveiy or transfer ol 
 any goods or security, or any deed, bond, or writing obligatory for 
 the payment of money (whether such deed, bond, or writing obliga- 
 tory shall be made only for the payment of money, or for the pay- 
 ment of money together with some other purpose), or any indorse- 
 ment on or assignment of any such undertaking, warrant, order, 
 authority, request, deed, bond, or writing obligatory, in whatsoever 
 place or country out of England and Ireland, whether under the 
 dominion of her Majesty or not, the money payable or secured by 
 such bill, note, undertaking, wan-ant, order, authority, request, deed, 
 bond, or writing obligatory may be or may purport to be payable, 
 and in whatever language the same respectively or any part thereof 
 may be expressed, and whether such bill, note, undertaking, warrant, 
 order, authority, or request be or be not under seal, every such per- 
 son, and eveiy person aiding, abetting, or counselling such person, 
 shall be deemed to be an offender within the meaning of this act, 
 and shall be punishable thereby in the same manner as if the money 
 had been payable or had purported to be payable in England or 
 Ireland. 
 
 Sect. 47 — Other Punishments substituted for those of 5 Eliz. c. 14, 
 where adopted in other Acts.] — Whosoever sliall, after the commence- 
 ment of this act, be convicted of any offence which shall liave been 
 
ForffcriJ. 657 
 
 subjected by any act or acts to the same pains and penalties as are 
 imposed by the act passed in tlie fifth year of the reign of Queen 
 Elizabeth, intituled "An Act against Forgers of false Deeds and 
 Writings," for any of the offences first enumerated in the said act, 
 shall be guilty of felony, and shall, in lieu of such pains, and penal- 
 ties, be liable, at the discretion of the court, to be kept in penal ser- 
 vitude for any term not exceeding fourteen years and not less than 
 three years [now five years, 27 <& 28 Vict. c. 47, o. 2, ante, p. 173], or 
 to be imprisoned for any term not exceeding two years, with or with- 
 out hard labour, and with or without solitary confinement. 
 
 Sect. 48 — Punishment for Forgery in general.'] — Where by any act 
 now in force any person falsely making, forging, counterfeiting, 
 erasing, or altering any matter whatsoever, or uttering, publishing, 
 offering, disposing of, putting away, or making use of any matter 
 whatsoever, knowing the same to have been falsely made, forged, 
 counterfeited, erased, or altered, or any person demanding or endea- 
 vouring to receive or have any thing, or to do or cause to be done 
 any act, upon or by virtue of any matter whatsoever, knowing such 
 matter to have been falsely made, forged, counterfeited, erased, or 
 altered, would, according to the provisions contained in any such act, 
 be guilty of felony, and would, before the passing of the act of the 
 first year of King William the Fourth, chapter sixty-six, have been 
 liable to suffer death as a felon ; or where by anj' act now in force 
 any person falsely personating another or falsely acknowledging any 
 thing in the name of another, or falsely representing any other per- 
 son than the real party to be such real party, or wilfully making a 
 false entry in any book, account ' or document, or in any manner 
 wilfully falsifying any part of any book, account, or document, or 
 wilfully making a transfer of any stock, annuity, or fund in the name 
 of any person not being the owner thereof, or knowingly taking any 
 false oath, or knowingly making any false affidavit or false affirma- 
 tion, or demanding or receiving any money or other thing by virtue 
 of any probate or letters of administration, knowing the will on which 
 such probate shall have been obtained to have been false or forged, 
 or knowing such probate or letters of administration to have been 
 obtained by means of any false oath or false afiirraation, would, 
 according to the provisions contained in any such act, be guilty of 
 felony, and would, before the passing of the said act of the first year 
 of King William the Fourth, have been liable to suffer death as a 
 felon ; or where by any act now in force any person making or using, 
 or knowingly having in his custody or possession, any frame, mould, 
 or instrument for the making of paper, with certain words visible in 
 the substance thereof, or any person making such paper, or causing 
 certain words to appear visible in the substance of any paper, would, 
 according to the provisions contained in any such act, be guilty of 
 felony, and would, before the passing of the said act of the first year 
 of King William the Fourth, have been liable to suffer death as a 
 felon ; then, and in each of the several cases aforesaid, if any person 
 shall after the commencement of this act be convicted of any such 
 felony as is hereinbefore in this section mentioned, or of aiding, abet- 
 ting, counselling or procuring the commission thereof, and the same 
 shall not be punishable under any of the other provisions of this act, 
 every such person shall be liable, at the discretion of the court, to be 
 kept in penal servitude for life or for any term not less than three 
 years [now five years, 27 <& 28 Vict. c. 47, s. 2, ante, p. 173], or to be 
 
558" Forgery. 
 
 imprisoned for any term not exceeding two years, with or without 
 hard labom-, and with or without solitary confinement. 
 
 Sect 49 — Accessories, efc.J— In the case of every felony punishable 
 under this act every principal in the second degree, and every acces- 
 sory before the fact, shall be punishable in the same manner as the 
 principal in the first degree is by this act punishable ; and every 
 accessory after the fact to any felony punishable under this act shall 
 on conviction be liable, at the discretion of the court, to be impri- 
 soned for any term not exceeding two years, with or without hard 
 labour, and with or without solitary confinement ; and every person 
 who shall aid, abet, counsel, or procure the commission of any mis- 
 demeanor punishable under this act shall be liable to be proceeded 
 against, indicted, and punished as a principal oflfender. 
 
 Sect. 50 — Admiralty Offences.'] — All indictable offences mentioned 
 in this act which shall be committed within the jurisdiction of the 
 Admiralty of England or Ireland shall be deemed to be offences of 
 the same nature and liable to the same punishments as if they had 
 been committed upon the land in England or Ireland, and may be 
 dealt with, inquired of, tried and determined in any county or place 
 in England or Ireland in which the offender shall be apprehended or 
 be in custody, in the same manner in all respects as if they had 
 been actually comioQitted in that county or place ; and in any indict- 
 ment for any such offence, or for being an accessory to such an 
 offence, the venue in the margin shall be the same as if the offence 
 had been committed in such county or place, and the offence shall be 
 averred to have been committed on " the high seas ;" provided that 
 nothing herein contained shall alter or affect any of the laws relating 
 to the government of her Majesty's land or naval forces. 
 
 Sect. 51 — Fine and Sureties^ — Whenever any person shall be con- 
 victed of a misdemeanor under this act it shall be lawful for the 
 court, if it shall think fit, in addition to or in lien of any of the 
 punishments by this act authorized, to fine the offender, and to re- 
 quire him to enter into his own recognizances, and to find sureties, 
 both or either, for keeping the peace and being of good behaviour; 
 and in all cases of felonies in this act mentioned it shall be lawful for 
 the court, if it shall think fit, to require the offender to enter into his 
 own recognizances, and to find sureties, both or either, for keeping 
 the peace, in addition to any of the punishments by this act autho- 
 rized ; provided that no person shall be imprisoned under this clause 
 for not finding sureties for any period exceeding one year. 
 
 Sect, hi— Place and Mode of Imprisonment^ — ^Whenever imprison- 
 ment, with or without hard labour, may be awarded for any offence 
 under this act, the court may sentence the offender to be imprisoned, 
 or to be imprisoned and kept to hard labour, in the common gaol or 
 house of correction. 
 
 Sect, b^— Solitary Confinement.'] — Whenever solitary confinement 
 may be awarded for any offence under this act, the court may direct 
 the offender to be kept in solitary confinement for any portion or por- 
 tions of his imprisonment, or of his imprisonment with hard labour, 
 not exceeding one month at any one time, and not exceeding three 
 months in any one year. 
 
Forgery. 559 
 
 . Sect. 54 — Costs of Proseoution.'] — The court before -which any in- 
 dictable misdemeanor against this act shall be prosecuted or tried 
 inay allow the costs of the prosecution in the same manner as in 
 cases of felony ; and every order for the payment of such costs shall 
 be made out, and the sum of money mentioned therein paid and 
 repaid, upon the same terms and in the same manner in all respects 
 as in cases of felony. 
 
 Indictment. 
 
 Surrey, to wit : — The jurors for our lady the Queen upon their 
 oath present, that J. S., on the first day of June, in the year of our 
 
 Lord , feloniously did .forge a certain Ihere name the instrument], 
 
 which said forged is as follows: that is to say [here set out the 
 
 instrument verbatim (see ante, p. 65)], with intent thereby then to 
 defraud; against the form [as ante, p. 347]. (2nd Count.) And the 
 jurors aforesaid, upon their oath aforesaid, do further present, that 
 the said J. S. aftei-wards, to wit, on the day and year aforesaid, 
 feloniously did forge a certain other [state the instrument forged by 
 any ndme or designation by which it is usually Imown, 24 c6 26 Vict, 
 c. 98, s. 42], with intent thereby then to defraud; against the form 
 [as ante, p. 347]. (^rd Count.) And the jurors aforesaid, upon 
 their oath aforesaid, do further present, that the said J. S. afterwards, 
 to wit, on the day and year aforesaid, feloniously did offer, utter, dis- 
 pose of, and put oflf, a certain other forged , which said last-men- 
 tioned forged is as follows: that is to say [here set out the in^tru- 
 
 memt verbatim'], with intent thereby then to defraud (he, the said 
 J. S., at the time he so uttered and published the said last-mentioned 
 
 forged as aforesaid, well knowing the same to be forged); 
 
 against the form [as amte, p. 347]. (Uh Count.) And the jurors 
 aforesaid, upon their oath aforesaid, do further present, that the said 
 J. S. afterwards, to wit, on the day and year aforesaid, feloniously 
 did offer, utter, dispose of, and put off, a certain other forged [as in 
 the second count], with intent, etc. [as in the last count]. As to the 
 venue in forgery, see ante, pp. 26, 554. Where the prisoner is tried in 
 the county where he is in custody, under the 24 ^ 25 Vict. c. 98, s. 4], 
 the forgery may be alleged to have been committed in that county, and 
 there need not he any averment that the prisoner is in custody there. 
 S,. V. James, 7 C. if P. 5-53. And although the defendant is not 
 shaken ever to have been in custody in the county where the bill is found, 
 until tlie moment before his trial, lohen he surrenders in discharge of 
 his bail, that is sufficient to make him triable there. S. v. Smythies, 
 1 Den. 498 ■,iC.'^K. 878 ; 19 L. J.(M. C.) 31. 
 
 The offence of forgery is not triable at quarter sessions, or before 
 any recorder. 5^ 6 Vict. c. 38, s. 1 (ante, p. 104). 
 
 This indictment is not intended as a general precedent to serve in all 
 eases of forgery ; because the form in each particular case must de- 
 pend upon the statute on which the indictment is framed. But with 
 the assistance of it, and upon an attentive consideration of the opera- 
 tive words in the statute creating the offence, the pleader can find no 
 difficulty in framing an indictment in any case not particularly men- 
 tioned hereafter in this section. 
 
 The forgery should, in prudence, be alleged in the words of the 
 statute on which the indictment is framed; bat if the indictment con- 
 tain the operative words of the statute, the insertion of other terms 
 also will not vitiate it. B. v. Brewer, 6 C. Sf P. 363. Where an 
 indictment contained two counts, the one for uttering a forged hill of 
 
560 Forgery, 
 
 exchange, and the otiiei' siatinij that the prisoner, having in his 
 custody a certain bill of exchange, with a pyrged acceptance thereon, 
 feloniously did offer, etc. (Jhen and there hnnwirig ihe said acceptance 
 to be forged) the said hill of exchange, and the eridence proved the 
 acceptance only to be forged; it was objected that the statute mentinm 
 both the bill and acceptance, and therefore the forgery of the bill 
 could not include that of the acceptance, and that the second count 
 did not contain an express averment that the prisoner uttered the 
 forged acceptance ; the prisoner was convicted, hut the judges held the 
 conviction to be wrong. R. v. Horwell. 1 Mood. C. C. 405 ; 6 t'. ^ 
 P. 148. If the fiyrgery consist if the alteration if a true instrnment, 
 the alteration may either be specially alleged (and this mode is ad- 
 visable, at least in one set of counts, even where the word " alter" is 
 not in the statute. B. v. Elsworth, 2 East, P. C. 986, 988) ; or the 
 alteration may be given in evidence under, and ivill support, a count 
 charging the forgery of the entire instrument. {See post, in the 
 Evidence.) 
 
 Before the statute 2 Sf S W. 4, e. 123, great care was necessary in 
 setting out the instrument forged ; that statute first rendered it unne- 
 cessary to set firrth any copy or facsimile of the instrument forged 
 or uttered, and declared that it should be sufficient to describe it in 
 the same manner as in an indictment for stealin;/ the instrument. That 
 statute was repealed by 24 Sf 25 Vict. c. 95, but the object it had in view 
 is now more effectually attained by the stat. 24 ^ 25 Vict c 98, « 42, 
 which declares, that it shall be sufficient to describe the instrument by 
 any name or designation by which the same may be usually hnown, 
 leithout setting forth any copy or facsimile thereof, or otherwise de- 
 scribing the same or the value thereof. Where the indictment, in setting 
 out the forged instrument, also set out the attestation at the foot of it, 
 as part of the in.itrument, but it appeared in evidence that when the 
 defendant subscribed the insti-ument, the attestation was not written on 
 it ; it was holden, nevertheless, to beno variance JR. v Dunn,2 East, 
 P. C 9"6. I'he indictment must state what the instrument is, in re 
 sped of which the forgery was committed. P. v Wilcox, R Sf R. 50. 
 And the instrument must be correctly described ; for instance, if a bill 
 of exchange be described as a promissory note, the defendant will be 
 acquitted unless the variance be amended. See R. v. Hunter, R. Sf B. 
 511; tt.y. Birhett, Id. 251. Where the forged instrument is actually 
 within the meaning of the statute on which you intend framing your 
 indictment, but does not sufficiently appear to be so on the face of it, 
 you must, if the instrument be set out, not only set out a literal copy 
 of it in the indictment, but must also add such averments of extrinsic 
 facts as may be necessary to make it appear upon the face of the record 
 that the forged instrument is one of those intended by and described 
 in the statute. Thus, for instance, where, by the usage of a public 
 office, the bare signature of a party upon a navy bill operated as a re- 
 ceipt, an indictment for forging such a receipt, setting forth the imvi/ 
 bill and indorsement, and charging the defendant loith having forged 
 " a certain receipt for money, to wit, the sum of twenty -five pounds, 
 mentioned and contained in the said paper called a navy bill, iildch 
 forged receipt iras as follows: thnt is to .lay, — ' William Thornton, 
 William Hunter,' " was holden bad, because it did not show, by proper 
 averments, that these signatures imported a receipt. R. v. Hunter, 2 
 Leach, 624 ; 2 East, P. C. 928. So, where an indictment charged 
 the defendant with forging a receipt in the handwriting of Henrii 
 Hargreaves, as thus : — " Received, H. H." it was holden that the 
 
ForgenJ. 5C1 
 
 inrliclment wnx had, because there was nothing to show what H. H. 
 meant. R. v. Barton, 1 Mood. ('. C 141. See H. v. Inder, 1 Den. 
 32.5 ; 2 C ^ K. 635. But where, upon an indictment for forg- 
 ing a receipt, it appeared that the receipt wa/i written at the foot of 
 an account, and the indictment stated the receipt thus: — "8eh March, 
 1773. Received the contents above l>y me, Stephen Withers,'' without 
 setting out the account at the font of which it teas written, it was 
 holilen sufficient. R. v. Testich, 1 East, 181, n. So the words ^'Settled, 
 Sam. Hughes," written at the foot of a bill of parcels, were held of 
 themselves to import a receipt or acr/uittance, and tliat no averment 
 was necessary tliut ihi: word •' settled" meant a. receipt or acquittance. 
 R. V. Martin, 1 Mood. C. C 413 ; 1 C. ^ R. 549; overruling R. v. 
 Thompson, 2 Leach, 910. Andsee R. v. Houseman, 8 C.Sf P. ISO : R. 
 V. Yaughan, Id. 276 : R. v. Boardmon, 2 M. if Rob. 147 : R. v. 
 Overton, Dears. 308; 23 L. J. {M. C.) 29. However, it has been 
 before observed, that it is now unnecessary to set out the instrument ; hut 
 these cases are still applicable if the instrument be set out. See R. v. 
 Rogers, 9 C Sf P. 41. And if the instrument be set out, it seems that 
 a misdescription of it in the indictment will be immaterial, at least if 
 liny of the terms used to describe it be applicable. See R. v. Williams, 
 2 Den. 61 ; 20 L. J. (M. C.) 106. 
 
 The intent to defraud is described as an ingredient of the offence in 
 (ill the statutes upon the subject of forgery, and must consequently be 
 charged in the indictment: hut it is now sufficient to allege generalti/ 
 an intent to defraud, without alleging the intent to he to defraud any 
 particular person : 24 Sf 25 Vict. c. 98, s. 44 : ante, p. bob- 
 As to the second count, for knowingly uttering the forged instrument, 
 it is usual and prudent to add it in every case, lest the prosecutor should 
 fail in proof of the actual forgery. But the forgery is of itself an 
 ojleyice, althouijh the forged instrument have never been uttered. See 
 R. V. Elliott, i Leach, 173 ; and see 2 Id. 987 : R. v. Crocker, R. Sf 
 R. 97 It is not necessary to aver to whom the instrument wns 
 dixposed of. R. v. Holden, R. ^ R. 154 ; 2 Taunt. 334 ; 2 Leach, 
 1019. 
 
 Some other points relating to the indictment will be seen under the 
 following head of Evidence. 
 
 Evidence. 
 
 Forge, etc.'] — Forgery at common law is the fraudulent maJcing or 
 alteration of a writing to the prejudice of another man's right. 4 Bl. 
 Com. 247. Therefore a man may be guilty of forgery by making a 
 false deed in his own name, as where a person has made a convey- 
 ance in fee of land to A., and afterwards makes a lease for 999 years 
 of the same land to B., of a date prior to that of the conveyance to 
 A., for the purpose of defrauding A., the latter deed is a forgery. R. 
 V. Ritson, L. R., 1 C. C. R. 200 ; 39 L. J. {M. C.) 10. Proof of the 
 altering of a part of a genuine instrument will support an indictment 
 charging the defendant with having forged the instrument itself 
 As, for instance, where the indictment charged the defendant with 
 having made, forged, and counterfeited a bill of exchange, vhe judges 
 held that evidence of his having altered the bill, which was originally 
 for ten pounds, so as to make it appear to be a bill for fifty pounds, 
 supported the indictment ; even although the statute, on which the 
 indictment was framed, contained the word " alter" as well as the 
 word "forge." R.\. Teague, 1 East, P. C.9Ti; R. & R.^%. See, 
 
 B B 5 
 
562 Forgery. 
 
 R. V. Atkinson, 1 C.&P. 669. It is more usual, however, and perhaps 
 more prudent, at least in one set of counts, to charge it as an alte- 
 ration merely, and to allege the alteration specially. But there is 
 no doubt that any, the slightest alteration of a genuine instrument in 
 a material part, whereby a new operation is given to it, is a forgery; 
 as, for instance, making a lease of the manor of Dale appear to be a 
 lease of the manor of Sale, by changing the D to S; 1 Hawk. c. 70, 
 s. 2 ; making a bill of exchange for eight pounds appear to be for 
 eighty pounds, by adding a cipher to the 8; R. v. Ehworth, 2 EaM, 
 P. C. 986, 988 ; altering a banker's one-pound note by substituting 
 the word ten for the word one; R. v. Post, R. & R. 101; even altering 
 the notes of a country banker, as to the place at which they were 
 made payable in London, has been holden to be a forgery. R. v. 
 TrehU, 2 Taunt. 328; R. & R. 164. 
 
 But where the forgery is of a mere addition to the instrument, and 
 which has not the effect of altering it, but is merely collateral to it ; 
 as, for instance, a forged acceptance or indorsement to a genuine bill 
 of exchange ; proof of the forgery of the addition will not support an 
 indictment charging the forgery of the entire instrument : the forgery 
 of such addition must be specially alleged, and must be proved as laid. 
 See R. V. Birhett, R. & R. 251. Forging the signature of the drawer 
 of a bill of exchange, however, is the same precisely as forging the 
 entire bill, and may be laid as such. Where an illiterate woman of 
 the name of Dunn represented herself to the prosecutor as the widow 
 of a deceased seaman of the name of Wallace, and obtained from him 
 a loan of money upon her promissory note : the note was written by 
 the prosecutor, and upon his asking her what name he should put to 
 it, she answered " Mary Wallace ;" he thereupon subscribed the 
 name " Mary Wallace" to the note ; and she affixed her mark in tlie 
 usual place, between the christian and surname: the judges held this 
 to be a forgery of the note. R. v. Dunn, 1 Leach, bl. And whether 
 the name forged be that of a merely fictitious person, who never 
 existed, or of a person actually existing, is wholly immaterial: it is 
 as much a forgery in the one case as in the other ; R. v. Leids, Fast. 
 116: R. V. Wilks, 2 East, P. C. 957: R. v. Bolland, M. 958: iJ. v. 
 Lochett, 1 Leach, 94 : R. v. Parkes, 2 Leach, 773 ; 2 East, P. C. 963 : 
 R. V. Froud, \ B. & B. 300 ; R. <S> R. 389 : R. v. Sheppard, 1 Leach, 
 226: R. V. Whil^, 2 Leach, 983 ; R. <& R. 90 : R. v. Francis, B. & 
 R. 209: and sec R. v. Wehh, 3 B. d B. 228; R. & R. 405: R. v. 
 Watts, R. & R. 436: R. v. Mitchell, 1 Den. 282; provided the 
 fictitious name be assumed for the purpose of fraud, in the particular 
 instance in question. R. v. Bontien, R. & R. 260. So also, the 
 signing of a bill of exchange in the name of a non-existing,/Sm, or 
 in the defendant's own name to represent a fictitious firm with intent 
 to defraud, is forgery. R. v. Rogers, % C.& P. 629. But it is not 
 forgery fraudulently to induce a person to execute an instrument, on 
 a misrepresentation of its contents ; R. v. Collins, 2 M. & Rob. 461 ; 
 or to procure his signature to a document, the contents of which 
 have been altered without his knowledge. R. v. Chadwick, Id. 545. 
 
 Even where a man, upon obtaining discount of a bill, indorsed it 
 in a fictitious name, when he might have obtained the money as 
 readily by indorsing it in his own name, it was holden to be a forgery. 
 R. V. Taft, 1- Leach, 172 : and see R. v. Taylor, 1 Leach, 214 : R. v. 
 Marshall, R. & R.lb: R. v. Whiley, R. & R. 90 : R. v. Frands, R. & 
 R. 209. But if a man who has been long known by a fictitious name 
 draw a bill in chat name, it will not be a forgery. See R. v. Aickles, 
 
Forgery. 563 
 
 2 East, P. C. 968 : R. v. Bontien, B. & R. 260. Or if a man pass 
 himself off as the indorser of a bill, when in fact he is not so, but the 
 indorsement is gentiine, this cannot be deemed forgery, even although 
 it be done for puiposes of fraud, and in concert with the real indorser. 
 R. V. Hevey, 1 Leach, 229; 2 East, P. C. 856. Nor where the party, 
 falsely alleging an authority from J. S. to indorse, indorses " per pro- 
 curation of J. S,," signing thereto his own name. R. v. White, 1 
 Den. 208 ; 2 C. <& K. 404 ; but such a fraud, although not a for- 
 gery, is now a felony and punishable under s. 24 of stat. 24 & 25 
 Vict. c. 98, post. Where a man drew a bill on Williams & Co., 
 bankers, 3, Birchin-lane, London, and at the time he paid away 
 the bill he was asked if the drawees were Williams, Burgess & 
 Co., the London bankers, and he answered in the affirmative ; the 
 bill was presented, not to Williams, Burgess & Co., who lived at 
 No. 20 in the same street, but at a counting-house. No. 3, where 
 the words " Williams & Co." were on a brass-plate on the door, 
 and it was there accepted in the name of " Williams S Co. ;" proof 
 was given at the trial that the acceptance was not that of Williams, 
 Burgess & Co., and that there were no other London bankers of 
 that name: the prisoner was convicted ; but, upon the point being 
 afteiTvards argued before the judges, ten of them held that it was not 
 a forgeiy. R. v. Watts, 3 Brod. & B. 197 ; R. & R. 436. But if a 
 bill, payable to J. S. or order, get into the hands of another person 
 of the same name, and he indorse it, it will be a forgery. Mead v. 
 Young, 4 T. R. 28. It is forgery for a person, having authority to 
 fill up a blank acceptance or a cheque for a certain sum, to fill up 
 the bill or cheque for a larger sum. R. v. Minter Hart, 1 Mood. C. ' 
 C. 486 ; 7 G <fe P. 652 : R. v. Wilson, 1 Den. 284 ; 2 C. <& K. 527 ; 17 
 L. J. (M. C.) 82 : see R. v. Richardson, % F. & F. 343. And if a 
 party put the name of another to a bill of exchange, without his au- 
 thority, it is equally a forgery, although the party expected to be 
 able to meet it when due. R. v. Forbes, 1 C. & P. 224. See R. v. 
 Hill, %C.<&P. 274: R. v. Cooke, Id. 582. 
 
 If several combine to forge an instrument, and each execute by 
 himself a distinct part of the forgery, and they are not together when 
 the instrument is completed, they are nevertheless all guilty as prin- 
 cipals. R. v. Bingley, R. & R. 446. As, if B. make the paper, C. 
 engrave the plate, and D. fill up the instrument, each without know- 
 ing that the others are employed for that purpose, they are all prin- 
 cipals. R. V. Dade, 1 Mood. C. C. 307 : R. v. KirJcwood, Id. 304. 
 So, if several concur in employing another to make a forged instru- 
 ment, knowing its nature, they are all guilty of the forgery. R. v. 
 Mazeau, % C. & P. 676. 
 
 That the signature or other part of the instrument alleged to be 
 forged is not of the handwriting of the party may be proved by any 
 person acquainted with his handwriting, either from having seen him 
 write, or from being in the habit of corresponding with him. {Ante, 
 pp. 266, 267.) It is sufficient, ^rima/acie, to disprove his handwriting, 
 and he need not be called to disprove an authority to others to use 
 his name ; circumstances showing guilty knowledge are enough. 
 R. V. Harley, i M. <& Rob. 473. The party himself whose name is 
 forged may be a witness to prove the forgery. But the forgery may 
 equally be proved by other witnesses who are acquainted with his 
 handwriting, without calling him as a witness ; his testimony as to 
 the fact of forgery is not deemed the best evidence, and that of 
 other persons merely secondary. R. v. Hughes, 2 East, P. C. 1002: 
 
564 Forgery. 
 
 R. V. Macguire, Id.; R. & R. 378. And by 28 Vict. c. 18, s. 8, 
 '■ comparison of a disputed writing with any writing proved to the 
 satisfaction of the judge to be genuine, shall be permitted to be 
 made by witnesses ; and such writings, and the evidence of wit- 
 nesses respecting the same, may be submitted to the court and jury 
 as evidence of the genuineness or otherwise of the writing in dis- 
 pute." (&e ante, p. 267.) It seems to be doubtful whether the 
 forgery can be proved by the examination of persons of skill, as to 
 the handwriting being genuine, or an imitation from its appearance. 
 Goodtitle V. Braham, 4 T. R. 497 : Carey v. Pitt, Peake, Add. Ca. 
 130: R. V. Cator, 4 Esp. 117: Crumey v. Langlands, b B. <& Aid. 
 330 (ante, p 267). On an indictment for uttering a forged will, 
 which, it was alleged, had been written over pencil-marks that had 
 been rubbed out, it was held that the evidence of engravers, who 
 had examined the paper with a mirror, and traced the pencil-marks, 
 was admissible for the prosecution. R. v. Thomas Williams, 8 C.ifc 
 P. 434. Evidence must also be given of the identity of the party 
 whose handwriting is alleged to be forged; that is, it must be 
 proved expressly or from circumstances, that the alleged forgery 
 was intended to represent the handwriting of the person whose 
 handwriting it is proved not to be ; or that it was attempted to be 
 uttered as the handwriting of a person who never existed. (Ante, 
 p. 562.) See R. v. Sponsonby, 2 East, P. C. 996, 997 : R. v. Doimes, 
 Id. 997. Where the defendant uttered a forged note, and said that 
 it was drawn by W. H. of the Bull's Head, it was holden to be suf- 
 ficient to prove that it was not of the handwriting of that W. H., 
 although it appeared that there was another W. H. living in the 
 neighbourhood. R. v. PTampton, 1 Mood. C. C. 255. Where the 
 prisoner obtained money from B. for a cheque on Jones, Loyd & Co., 
 
 purporting to be drawn by Gr. Andrews in favour of Newman, 
 
 Esq., or bearer, telling him that it was for Mr. Newman, of Solio 
 Square, in whose service he was for three months, and that Mr. 
 Newman had put his name on the back; and it appeared upon an 
 indictment for forging and uttering the cheque, that no person of the 
 name of G. Andrews kept an account with Jones, Loyd & Co., that 
 Mr. Newman of Soho Square did not write his name on the back of 
 the cheque, and that the prisoner was never in that gentleman's ser- 
 vice : Parke, J. (after consulting Gaselee, J.), held this to be suf- 
 ficient /in'ma /acie evidence that G. Andrews was a fictitious person, 
 and told the jury that if G. Andrews really drew the cheque, the 
 prisoner might produce him, or give some evidence upon the subject: 
 the prisoner was convicted. R. v. Backler, 5 C. <& P. 118. Upon 
 an indictment for forging and uttering a bill of exchange, purporting 
 to be drawn by T. W. of Nottingham, and to be accepted by T. K., 
 Market-place, Birmingham, which was passed to the prosecutor by 
 the prisoner, who represented his name to be King, of King Square, 
 which he said was chiefly his property : the prosecutor proved that 
 he made inquiry for T. W. at Nottingham, and could not find him; 
 that he had been twice to Birmingham aft ^r T. K., but could find 
 no such person, and that he had made inquiries at King Square for 
 the prisoner, but could hear of no such person ; but he admitted that 
 he was a stranger at these places, and no person acquainted with 
 them was called : Parke, J., after consulting the judges present, held 
 this sufficient evidence to go to the jury of the bill being a fic- 
 titious one, although he told them that it was not very satisfactorj', 
 and not the usual evidence upon such occasions. R. v. King, hC.& 
 
Forgery. 565 
 
 P. 123. Where the j)risonei' was indicted for forging and uttering 
 a cheque on Greenwood & Co., array agents and bankers, purporting 
 to be drawn by J. Weston, and a clerk in the army department was 
 called to prove that J. Weston kept no account with his employers; 
 he also admitted that he did not know the names of all the customers, 
 but added that he knew of no customer named J. Weston, and that, 
 upon inquiry of the other clerks, he found that there was no such 
 person; Parke, J., with the concurrence of Patteson, J ., and Qumey, 
 B., held this to be prima facie evidence sufficient to call upon the 
 prisoner to show who J. Weston really was. R. v. Brannan, 6 C. S 
 P. 326. 
 
 It was at one time doubted whether the forgery of an instrument 
 in this country, payable abroad, or the uttering of an instrument in 
 this country, forged and payable abroad, was an offence within some 
 of the repealed statutes ; see R. v. Dich, 1 Leach, 68 : R. v. M'-Kay, 
 E. d R. 71 ; although it was afterwards decided that it was. R. v. 
 Kirkwood, 1 Mood. C. C. 311. These doubts were removed by the 
 statute 11 G. i: <& 1 W. 4, c. 66, s. 30, which is re-enacted in the 40th 
 section of the 24 S 25 Vict. v. 98, and by, which it was made an 
 offence punishable in the same manner as if the instrument were 
 made or purported to be made, or the money were payable or pur- 
 ported to be payable in this country, to forge or alter, or knowingly 
 offer, utter, dispose of, or put off, in this country any instrument or 
 writing, the forgery, etc. of which is punishable by that act, in what- 
 soever place it may be made, or purport to be made, or to forge, etc., 
 or knowingly offer, etc., in this country any bill of exchange or pro- 
 missory note for the payment of money, or any indorsement or as- 
 signment of any bill of exchange or promissory note for the payment 
 of money, or any acceptance of any bill of exchange, or any under- 
 taking, warrant, or order for the payment of money, or any deed, 
 bond, or writing obligatory for the payment of money (whether such 
 deed, bond, or writing obligatory shall be made only for the payment 
 of money, or for the payment of money together with some other 
 purpose), in whatever place out of England the money payable or 
 secured thereby may be or may purport to be payable. 
 
 A forgery must be of some document or writing ; therefore the 
 painting an artist's name in the corner of a picture, in order falsely 
 to pass it off as an original picture by that artist, is not a forgery. 
 R. v. Gloss, Dears. & B. 460; 27 L. J. (M. C.) 54: see also R. v. 
 Smith, Dears, d B. 566 ; 27 L. J. (M. C.) 225_, post. Such a fraud is 
 however now punishable on summary conviction before two justices 
 of the peace. 25 & 26 Vict. c. 68, ss. 7, 8. As to the forgery of 
 trade marks on merchandise, see 25 & 26 Vict. c. 88, post, Part II., 
 Chap. IV., s. 3. 
 
 Which said forged is as follows, etc.] — The instrument, if set 
 
 out, must, when given in evidence, correspond exactly with that set 
 out in the indictment; the slightest variance will be fatal, unless 
 amended. {Ante,pp. 57, 205.) A mere literal variance, indeed (that is, 
 where the omission or addition of a letter does not alter or change a 
 word, so as to make it another word, 2 Salk. 661 ; Cowp. 229), will 
 not be material ; as, for instance, " receivd" for " received ;" R. v. 
 Hart, 1 Leach, 145 ; 2 East, P. C. 977 ; " undertood" for " under- 
 stood," R. V. Beach, Cowp. 229 ; " Messes." for '■ Messrs.," R. v. Old- 
 field, 2 Russ. 376, or the like. (Ante, p. 205.) It is not, however, 
 now necessary that the instrument should be set out in the indict- 
 
566 Forgery. 
 
 ment ; 24 <§ 25 Vict. e. 98, s. 42 ; and in order to avoid a variance, a 
 count should always be framed upon this provision. 
 
 Sewing to the parchment on which the indictment is written, im- 
 pressions of forged notes taken from engraved plates, is not a legal 
 mode of setting out the notes in the indictment. R. v. Harris.! R. v. 
 Moses, R. V. Balk, 7 C. <& P. 429 : R. v. Warshaner, 1 Mood. C. C. 
 466. If the instrument forged be in a foreign language, it must be 
 set out [if at all] in that language, and a complete and accurate 
 translation must also be set out. See R. v. SzudwrsMe, 1 Mood. C. C. 
 419 : R. V. Warshaner, Id. 466 : R. v. Ha/rris, 1 C. & P. 416, 429. 
 But counts under the repealed statute 2 tfe 3 PF. 4, c. 123, s. 3, stating 
 the plates to have engraved on them, in the Polish language, a pro- 
 missory note for the payment of money, to wit, for the payment of 
 five florins, purporting to be a promissory note for the payment of 
 money of a certain foreign prince, without stating the value, were 
 held good after verdict, by virtue of 7 O. 4, c. 64, s. 21. R. v. War- 
 shaner, R. V. Harris, supra. 
 
 The instrument must appear upon the face of it to have been made 
 to resemble a true instrjiment of the denomination mentioned in the 
 indictment, and in the statute upon which it is framed, so as to be 
 capable of deceiving persons using ordinary observation, according 
 to their means of knowledge, see R. v. Collicott, 2 Leach, 1048; 4 
 Taunt. 300 ; R. & R. 212, 229 : R. v. J<mes, 1 Leach, 204, although 
 not, perhaps, those scientifically acquainted with such instruments. 
 See R. V. Hoost, 2 East, P. C. 950. Even where, upon an indictment 
 ibr forging a bank-note, there appeared to be no water-mark in the 
 forged note, and the word " pounds" was omitted ui the body of it, 
 the defendant being convicted, the judges held the conviction to be 
 right. R. V. Elliott, 1 Leach, 175. So, where the defendant was in- 
 dicted for forging the will of " Peter Perry," and the will produced in 
 evidence commenced "I, Peter Perry," but was subscribed "John 
 Perry, his mark ;" but it was also stated in evidence, that upon this 
 repugnancy being remarked to the prisoner, he said that he had by 
 mistake written " John" instead of " Peter," and that the mark was 
 that of Peter Perry; the defendant was convicted and executed. 
 R. V. Fitzgerald, 1 Leach, 20. But if, on the other hand, the instru- 
 ment do not appear to be such as probably might be imposed upon 
 persons to whom it was likely to be uttered as a true instrument of 
 the denomination mentioned in the indictment, the defendant must 
 be acquitted. Where the defendant was indicted for forging a will 
 of lands, and the will produced was attested (before the stat. 1 Vict. 
 c. 26) by two witnesses only, the judges held that the defendant 
 could not be convicted, although it di(J not appear, either in evidence 
 or upon the face of the will, whether the lands were freehold or not; 
 for they must be presumed to be freehold, unless the contrary ap- 
 peared. R. V. Wall, 2 East, P. C. 963. So, a bill of exchange for 
 three guineas, not attested as required by stat. 17 G. 3, c. 30, «. 1, 
 was holden by the judges not to be the subject of an indictment for 
 forgery, as a bill of exchange ; because if it were a genuine instru- 
 ment, it would be absolutely void for want of the attestation. R. v. 
 Moffatt, 1 Leach, 431. So, a bill of exchange or country bank-note, 
 which, for want of a signature, is incomplete, or a navy bill payable 
 
 to or order, R. v. Richards, R. do R. 193 : R. v. Randall, Id. 
 
 195 : R. v. Pateman, R. & R. Abb : R. v. Butterwicle, "i M. & Boh. 
 196, is not the subject of an indictment for forgery. See R. v. Bvrhe, 
 
Forgery. 567 
 
 B. <& R. 496: R. v. Turpin, 2 C. & K. 820. But a man may be 
 conviqted of forging a will, although it appear in evidence that the 
 pretended testator is alive ; R. v. Sterling, 1 Leaeh, 117: R. v. Coogan, 
 Id. 449 ; for the instrument, if genuine, would be a will, notwith- 
 standing the testator were still alive ; his death would merely give 
 effect to the instrument. So, a man may be indicted for forging and 
 uttering a bill of exchange, although the name of the payee was not 
 indorsed on it ; R. v. Wickes, R. <& R. 149 ; or even although the bill 
 was not stamped. R. v. Hawkeswood, 2 T. R. 606, n. ; 1 Leach, 257 : 
 R. V. RecuUst, 2 Leach, 703. So, a man may be indicted for forging 
 an instrument, which, if genuine, could not be made available, by 
 reason of some circumstance not appearing upon the face of the 
 instrument, but to be made out by extrinsic evidence. See R. v. 
 M'Intosh, 2 Leach, 833 ; 2 East, P. C. 942. Thus, a man may be 
 indicted for forging a deed, though not made in pursuance of the 
 provisions of particular statutes, requiring it to be in a particular 
 form : R. v. Lyon, R. & R. 255 : R. v. Fraud, Id. 389 ; 1 Brod. (& B. 
 300 : or for forging a cheque, though it be post-dated. R. v. Taylor, 
 IC&K. 213. 
 
 With intent to defraud.J — It is not necessary to prove the intention 
 of the defendant to have been to defraud any particular person ; it is 
 sufficient to prove generally an intent to defraud. 24 <& 25 Vict. c. 98, 
 «. 44 {a/nte, p. bbb'). However, if a man forge a document, such as a 
 diploma of the College of Surgeons, with intent only to induce 
 people generally, or particular persons, to believe that he is a member 
 of that college, but have no intent of committing any particular 
 fraud, or doing any specific wrong to any individual, he is not guilty 
 of the offence of forgery at common law. R. v. Hodgson, Dears. & 
 B. 3; 25 L. J. {M. C) 78. Neither is it necessary to prove that any 
 person was actually defrauded by the forgery; IS,. v. Croohe, 2 Str. 
 901 : R. V. Goate, 1 Ld. Raym. 737 ; if, from circumstances, the jury 
 can presume that it was the defendant's intention to defraud, it is 
 sufficient to satisfy this allegation in the indictment; for where the 
 intent to defraud exists in the mind of the defendant, it is sufficient, 
 though, from circumstances of which he is not apprised, he could 
 not, in fact, defraud the prosecutor; R. v. Holden, R. & R. 154: R. 
 V. Marcus, 2 C. & K. 356: R. v. Hoatson, Id. Ill; or though the 
 party to whom the forged instrument is uttered believes that the 
 defendant did not intend to defraud him; R. v. Sheppard, R. & R. 
 169. See R. v. Harvey, 2B.S C. 261; nay, even as it seems, though 
 in fact no person could have been defrauded by the forged instru- 
 ment: see per Maule, J., R. v. Nash, 2 Den. -499, 503; 21 L. J. 
 (M. C.) 147, 149. Where a forged bill of exchange, payable to the 
 order of the defendant, was given as a pledge only, but to obtain 
 credit, it was holden to be a fraudulent intent witliin the meaning 
 of the statute. R. v. Birkett, R. & R. 86. And the jury ought to 
 infer an intent to defraud the person who would have to pay the in- 
 strument if it were genuine, although, from the manner of executing 
 the forgery, or from that person's ordinary caution, it would not be 
 lilcely to impose on him, and although the object was general, to 
 defraud whoever might take the instrument, and the intention of de- 
 frauding in particular the person who would have to pay the instru- 
 ment if genuine, did not enter into the prisoner's contemplation. 
 R. V. Mamgora, R. & R. 291 ; see R. v. TrenfieU, 1 F. <& F. 43. A 
 forged cheque drawn on the Worcester old bank was presented by. 
 
568 Forgery. 
 
 the prisoner to Rufford's bank at Stourbridge, and refused; and upon 
 an indictment for forging and uttering the cheque with the intent 
 to defraud the Messrs. Rufibrd, it was objected, that, as it was not 
 drawn upon them, it could not defraud them; but Bosanquet, J., held, 
 that, as it was presented at their bank for payment, it was evidence 
 of an intent to defraud them. R. v. Orowther, 5 C. <& P. 316. The 
 fact that the prisoner has given guarantees to his bankers, to whom 
 he paid a forged note, to a larger amount than the note, does not so 
 completely negative an intent to defraud them as to withdraw the 
 case from the consideration of the jury. JR. v. James, 7 C dk P. 153. 
 See R. v. Cooke, 8 C. <& P. 682. 
 
 The words " with intent," etc., apply to the verb to which the pri- 
 soner's name is the nominative; therefore, a count which stated that 
 the prisoner " did forge" a promissoiy note for 50Z., " on which said 
 promissory note is an indorsement as follows: C. J., with intent to 
 defraud J. S.," sufficiently charged that the forged note, and not the 
 indorsement, was the thing whereby the prisoner intended to defraud 
 J. S. R. V. Jame.% supra. 
 
 On the trial of an indictment for forgery with intent to defraud 
 A. B., " one of the public officers" of a banking company established 
 under 7 G. 4, c. 46, A. B. stated that he was a public officer; and 
 an examined copy of the return forwarded to the stamp-office under 
 that act, in which also he was stated to be so, was put in : but this 
 copy had not the affidavit at the close of the return, which is directed 
 by schedule (A.) of that statute, and the date was left blank. The 
 judges held that A. B. was sufficiently proved to be the public officer. 
 R. V. Carter, 1 Den. 65; 1 C. (& K. 741. See Edwards v. Buchanan, 
 ZB.dk Ad. 788. 
 
 Second Count. 
 
 Offer, utter, dispose of, and put off, ete.J — To offetr and to aHcrmean 
 nothing more than that the party tendered, or attempted to pass or 
 make use of, the forged instrument, with the intent cliarged in the 
 indictment: these words do not import that the person to whom the 
 forged instrument was tendered, actually accepted it with intention 
 to retain it, or was defrauded by it. Accordingly we find that the 
 Legislature, wherever they intended that the offence should not be 
 complete without an acceptance on the one part and a relinquish- 
 ment on the other, have described the offence in words of a different 
 and appropriate meaning, such as "pay and put off" {see 1 East, P. C. 
 179), or the like. But in stat. 24 c6 25 Vict. c. 98 (which extends to 
 all written instruments in ordinary use, as deeds, wills, bonds, bills 
 of exchange and promissory notes, warrants or orders for the pay- 
 ment of money or delivery of goods, acquittances and receipts for 
 money or goods, accountable receipts for notes, bills, or other secu- 
 rities for money, etc., etc.), the offence of uttering, etc., is described 
 by the words " offer, utter, dispose of, or put off," which include 
 attempts to make use of a forged instrument, as well as cases where 
 the defendant has actually succeeded in making use of it. Where, 
 on an indictment upon the repealed statute 13 G. 3, c. 79, which con- 
 tained the words " utter or publish," it appeared that the defendant 
 merely showed a forged instrument to a person, though with intent 
 to raise a false idea of his substance, and afterwards left the instru- 
 ment under cover, in the custody of that person, as he pretended, for 
 safe custody, it was holden not to be an uttering or publishing within 
 these words. R. v. Shukard, R. d: R. 200. But the showing of a 
 
Forgery. 5Gd 
 
 forged receipt to a person with whom the defendant is claiming credit 
 for it, was held to be an offering or uttering within the statute then 
 in force, the 1 W. 4, c. 66, s. 10, though the defendant refused to part 
 with the possession of it. R. v. Radfm-d, 1 Den. 59; \ C. ds K. 707. 
 Where a pawnbroker, upon the hearing of an application against 
 him under 39 & 40 G. 3, c. 99, s. 14, to compel him to deliver up 
 goods which had been pledged with him (the money advanced, with 
 interest, having been repaid), produced and delivered to the magis- 
 trates, through the hand of his attorney, a forged duplicate as the 
 genuine one which he had given when the goods were pledged, and 
 which he had received back when the money was repaid, this was 
 held to amount to an uttering by the pawnbroker. R. v. Fitchie, 
 Dears. & B. 175; 26 L. J. {M. G.) 90. And where the defendant 
 placed a forged receipt for poor-rates in the hands of the prosecutor, 
 for the purpose of inspection only, in order, by representing himself 
 as a person who had paid his poor-rates, fraudulently to induce the 
 prosecutor to advance money to a third person, for whom the de- 
 fendant proposed to become a surety for its repayment: this was 
 held to be an offering, etc. within the statute. R. v. Ion, 2 Den. 475; 
 21 L. J. (M. C.) 166. And the rule there laid down by the court is, 
 that a using of the forged instrument in some way, in order to get 
 money or credit upon it, or hy means of it, is suflBcient to constitute 
 the offence described in the statute. 
 
 Questions have arisen upon the subject of uttering, as to the quality 
 of the offences of different parties, viz. whether they were indictable 
 as principals or accessories. It has been decided that the giving of a 
 forged note to an innocent agent, or to an accomplice, that he may 
 utter it, is a disposing of and putting away of the note. R. v. Palmer, 
 
 1 N. R. 96 ; R.& R. 72: R. v. Giles, 1 Mood. C. C. 166. But where 
 several, by concert, are privy to the uttering of a forged note, which 
 is uttered by one only in the absence of the others (see ante, p. 8), he 
 only who utters it is a principal, but the others are accessories be- 
 fore the fact. R. v. Soares, R. <&R.25: R. v. Badcock, Id. 249: R. 
 V. Stewart, Id. 363: R. v. Davis, Id. 113. See R. v. Moms, Id. 270 ; 
 
 2 Leach, 1096: R. v. Harris, 1 C. <& P. 416. 
 
 To maintain this count, it will be sufficient to prove that the de- 
 fendant-sold or disposed of the forged instrument. The words of the 
 statute are, " offer, utter, dispose of, or put off," and the words of the 
 section applicable to the buyer, are, "purchase or receive" (24 d; 25 
 Viet. c. 98, s. 13, post.) Where the words of the statute were only, 
 "utter and publish as true," the instrument must have been uttered 
 as true, and not sold or disposed of as a forged instrument. 
 
 A conditional uttering is as much a crime as any other. Where 
 the defendant gave a forged acceptance, knowing it to be so, to the 
 manager of a bank where he kept an account, saying that he hoped 
 this bill would satisfy the bank as a security for the money he owed 
 them, and the manager replied that that would depend on the result 
 of inquiries as to the acceptors : this was holden a sufficient guilty 
 uttering. R. v. Cooke, 8 C. <& P. 582. 
 
 A certain other false, etc.] — This must be proved as on the first 
 count. (See ante, p. 561.) 
 
 With intent to defraud.']— This is also proved as on the count for 
 forgery. (See ante, p. 567.) If, however, the jury are satisfied that 
 
670 Porgety. 
 
 the prisoner uttered the instrument as true, meaning it to he taken 
 as such, and that he knew it to be forged, they are bound to infer 
 the intent to defraud. R. v. Hill, %C.& P. 274 : R. v. Vaughan,ld. 
 276 : R. V. Cbofe, Id. 582, 586: R. v. Qeach, 9 C. <& P. 499. H. 
 employed L. to do work for him : L. had a partner S., who took no 
 active part in the business, which H. knew. H. knowingly paid L. 
 for the work by a forged bill of exchange, which L. indorsed in his 
 own name only, and delivered to S., who also indorsed it in his own 
 name and negotiated it. H. was held to be properly convicted on a 
 count charging an uttering with intent to defraud L. only. S. v. 
 ffansm, 2 Mood. C. C. 245; C. & Mar. 334. 
 
 Wall knowing the same to be forged.'] — This is not capable of direct 
 proof. It is nearly in all cases, therefore, proved by evidence of 
 facts from which the jury may presume it. tFpon an indictment for 
 disposing of and putting away a forged bank-note, knowing it to be 
 forged, proof that the defendant has passed other forged notes, if 
 proved by legitimate evidence, R. v. Millard, R. <& R. 245 {see B. v. 
 Moore, \ F.& F. 73), raises a probable presumption that he knew 
 the note, for the passing of which he is now indicted, to be forged; 
 R. V. Wylie, 1 N. R. 92 : R. v. Tattersal, Id. 94, n. (ante, p. 215); ami 
 see R. V. Ball, 1 Camp. 324; R. d; R. 132: R. v. Hough, R. & R. 120; 
 R. V. Green, i C. & K. 209: R. v. Salt, ZF.&F. 834; and if, in ad. 
 dition to this, it be proved that the defendant, when he passed these 
 notes, gave a false name or address, it amounts to a violent pre-< 
 sumption of his guilty knowledge. {See ante, p. 235.) It has been 
 ruled, however, that & a subsequent uttering be made the subject of 
 a distinct indictment, it cannot be given jn evidence to show « 
 guilty knowledge in a former uttering. R. v. Smith, 2 C. <& P. 633: 
 (inri R. V. Smith, 4 C. <fe P. 411. But this distinction seems to be 
 now exploded; and in the case of R. v. Cadwallader Lewis, Carnar- 
 von Sum. Ass. 1840, Lord Denman, C. J., said, that " he could not 
 conceive how the relevancy of the fact to this charge could be 
 aflFected by its being the subject of another charge ;" and offered to 
 admit the evidence, although the above cases were cited. And in 
 another ease, jlWereon, B., admitted such evidence. R.-v. Acton,\ 
 Russ. 407. See also R. v. Forster, Dears. 456; 24 L. J. (M. (7.) 134. 
 On an indictment under the repealed stat. 11 (?. 4 <fi 1 W- 4, e. 66, 
 s. 19 (re-enacted in 24 d; 25 Vict. c. 98, «. 19), for engraving or 
 uttering notes of a foreign prince, evidence of a recent engraving or 
 uttering of notes of another foreign prince was held admissible in 
 proof of a guilty knowledge. R. v. Balls, 1 Mood. C. C. 470 ; 7 C. 
 & P. 429. 
 
 The defendant's statements as to other instruments of the same 
 kind, supposed to have been the subject of a guilty uttering by him, 
 are not, however, admissible in evidence. R. v. Cooke, 8 C <6 P. 
 582; out see the remarks of Orompton, J., on this case in R. v. Brown, 
 2 F. d- F. 559. 
 
Forgery. 571' 
 
 COUNTERFEITING THE GREAT SEAL, ETC. 
 
 Statute. 
 24 c6 25 Viet. c. 98, s. 1.]— "Whosoever sliall forge or counterfeit, 
 or shall utter, knowing the earns to be forged or counterfeited, the 
 great seal of the United Kingdom, her Majesty's privy seal, any 
 privy signet of her Majesty, her Majesty's royal sign manual, any of 
 her Majesty's seals appointed by the twenty-fourth article of the 
 union between England and Scotland to be kept, used, and continued 
 in Scotland, the great seal of Ireland, or the privy seal of Ireland, 
 or shall forge or counterfeit the stamp or impression of any of the 
 seals aforesaid, or shall utter any document or instrument whatso- 
 ever, having thereon or affixed thereto the stamp or impression of 
 any such forged or counterfeited seal, knowing the same to be the 
 stamp or impression of such forged or counterfeited seal, or any 
 forged or counterfeited stamp or impression made or apparently in- 
 tended to resemble the stamp or impression of any of the seals afore- 
 said, knowing the same to be forged or counterfeited, or shall forge 
 or alter, or utter, knowing the same to be forged or altered, any 
 document or instrument having any of the said stamps or impres- 
 sions thereon or affixed thereto, shall be guilty of felony, and being 
 convicted thereof shall be liable, at the discretion of the court, to 
 be kept in penal servitude for life, or for any term not less than three 
 years \now jke years, 27 <& 28 Vict. c. 47, s. 2, ante, p. 173] , or to be 
 imprisoned for any term not exceeding two years, with or without 
 hard labour, and with or without solitary confinement. 
 
 Indictment. 
 
 Commencement as ante, p. 559]^-the great seal of the United 
 Kingdom (" the great seal of the United Kingdom, her Majesty'' s privy 
 seal, any privy signet of her Majesty, her Majesty's royal sign manual, 
 any of her Majesty's seals appointed by the twenty-fourth article of the 
 Union between England and Scotland, to be hept, used and continued in 
 Scotland, the great seal of Ireland,,or the 'privy seal of Ireland, etc.,") 
 falsely, deceitfully, and feloniously, did forge and counterfeit, against 
 the form [as ante, p. 347]. (2nd Cownt.) And the jurors aforesaid, 
 upon their oath aforesaid, do further present, that the said J. S. after- 
 wards, to wit, on the day and year aforesaid, falsely, deceitfully and 
 feloniously did utter a certain other false, forged, and counterfeited 
 great seal as aforesaid, then well knowing the same to be false, 
 forged, and counterfeited; against the form [as am.te,p. 347]. Add 
 cownts stating the instrument to which the counterfeit seal was appended, 
 or which had thereon or affixed thereto the stamp or impression of such 
 comtterfeit seal, etc. 
 
 Felony : penal servitude for life or for not less than five [27 d; 28 
 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment not exceeding two ■ 
 years, with or without hard labour, and with or without solitary con- 
 finement (such confinement not exceeding one month at any one time, 
 nor three months in amy one year, 24 tfc 25 Vict. c. 98, s. 53, ante, p. 
 568.) — 24 <& 25 Vict. c. 98, «. 1. As to requiring the offender to enter 
 into recognizances and find sureties for heeping the peace. Id. s. 51, 
 ante, p. 558. 
 
 This offence is not triable at quarter sessions. 5 c6 6 Vict. c. 38, s. 1 
 (ante, p. 104_). 
 
572 Forgery. 
 
 Evidence, 
 
 To support the first count, produce the instrament to which the 
 forged seal is appended, and prove by witnesses conversant with the 
 genuine seal that the seal produced is counterfeited ; then prove that 
 the prisoner counterfeited the seal, either by direct evidence or by 
 circumstances from which the jury may infer it. 
 
 To support the second count, prove the seal to be forged as above, 
 and the uttering as directed ante, p. 568. 
 
 This statute (which for the first time reduces this offence from 
 treanon to felony), applies to a forging of the impression of the seal, as 
 well as to a counterfeiting of the seal itself Where the prisoner 
 forged the draught of a patent, and counterfeited the privy signet to 
 it, and so obtained the great seal to the patent, and being indicted 
 for counterfeiting the privy signet, it appeared that he had purposely 
 introduced some things and words into the counterfeit signet which 
 were not in the original, and had omitted others; the court held it to 
 be treason. Mobinson's case, 2 Rol. Rep. 50 ; 1 Hale, 184. The 
 mere misuser of the great seal was pot treason ; 1 Hale, 183 ; 3 
 Inst. 16 ; as, for instance, the taking of the great seal from an ori- 
 ginal patent and appending it to a pretended patent. 37 fl^ 8; 
 Bra. Abr. Treason, pi. 3; 1 JTale, 182 ; Leak's case, 12 Co. 15. So 
 neither was the alteration of the instrument to which the real seal is 
 appended treason, within the meaning of the statutes. 3 Inst. 15; 
 1 Hale, 183. 
 
 FORGING AND UTTERING EXCHEQUER BILLS, ETC. 
 
 Statutes. 
 
 24 (& 25 Viet. c. 98, «. 8.] — Whosoever shall forge or alter, or shall 
 offer, utter, dispose of, or put off, knowing the same to be forged or 
 altered, any exchequer bill or exchequer bond or exchequer deben- 
 ture, or any indorsement on or assignment of any exchequer bill or 
 exchequer bond or exchequer debenture, or any receipt or certificate 
 for interest accruing thereon, with intent to defi-aud, shall be guilty 
 of felony, and being convicted thereof shall be liable, at the discretion 
 of the court, to be kept in penal servitude for life or for any term not 
 less than three years [now five years, 27 & 28 Yict. c. 47, s. 2, ante, 
 p. 173], or to be imprisoned for any term not exceeding two years, 
 with or without hard labour, and with or without solitary confine- 
 ment. 
 
 29 Vict. c. 25, s. 16.] — If any person or persons shall forge or coun- 
 terfeit any such exchequer bill or coupon for interest [as in that act 
 mentioned], or any indorsement or writing thereupon or therein, or 
 tender in payment any such forged or counterfeited bill, or any exche- 
 quer bill with such counterfeit indorsement or writing thereon, or 
 shall demand to have such counterfeit bill, or any exchequer bill 
 with such counterfeit indorsement or writing thereupon or therein, 
 exchanged for ready money or for another exchequer bill, by any 
 person or persons, body or bodies politic or corporate, who shall be 
 obliged or required to exchange the same, or by any other person or 
 persons whatsoever, knowing the bill so tendered in payment, or 
 
Forgei-y. 573 
 
 demanded to be exchanged, or the indorsement or writing thereupon 
 or therein, to be forged or counterfeited, and with intent to defraud 
 her Majesty, her heirs and successors, or the persons to be appointed 
 to pay off the same, or any of them, or to pay any interest thereupon, 
 or the person or persons, body or bodies politic or corporate, who 
 shall contract or circulate or exchange the same, or any of them, or 
 any other person or persons, body or bodies politic or corporate, 
 then every such person or persons so offending, being thereof lawfully 
 convicted, shall be adjudged a felon, and shall suffer accordingly. 
 
 POKGING AND UTTERING BANK NOTES. 
 
 Statute. 
 
 24 <& 25 Vict. c. 98, s. 12.] —Whosoever shall forge or alter, or shall 
 offer, utter, dispose of, or put off, knowing the same to be forged or 
 altered, any note or bill of exchange of the governor and company of 
 the bank of England or of the governor and company of tlie bank of 
 Ireland, or of any other body corporate, company, or person carrying 
 on the business of bankers, commonly called a bank note, a bank bill 
 of exchange, or a bank post bill, or any indorsement on or assignment 
 of any bank note, bank bill of exchange, or bank post bill, with intent 
 to defraud, shall be guilty of felony, and being convicted thereof 
 shall be liable, at the discretion of the court, to be kept in penal 
 servitude for life or for any term not less than three years [now Jive 
 years, 27 d} 28 Vict. c. 47, s. 2, ante, p. 173], or to be imprisoned for 
 any term not exceeding two years, with or without hard labour, and 
 with or without solitary confinement. 
 
 Indictment for Forging and Uttering a Banh-note. 
 
 Commencement as ante, p. 559] — feloniously did forge {^^ forge or 
 alter") a certain note of the governor and company of the bank of 
 England, commonly called a bank-note, for the payment of lOZ., 
 C' any note or bill of exchange of the governor and company of the hank 
 of England, or of the governor and company of the hamlc of Ireland, or 
 of any other body corporate, company or person carrying on the business 
 of bankers, commonly called a bank-note, a bank bill of exchange, or 
 a bank post-bill, or any indorsement on or assignment of any bank-note, 
 bank bill of exchange, or bank post-bill") with intent thereby then to 
 defraud; against the form [as anie,^. 347]. (ind Covnt.) And the 
 jurors aforesaid, upon their oath aforesaid, do further present, that 
 the said J. S. afterwards, to wit, on the day and year aforesaid, felo- 
 niously did offer, utter, dispose of, and put off a certain other forged 
 note of the governor and company of the bank of England, commonly 
 called a bank-note, for the payment of 10^., with intent thereby then 
 to defraud (he the said J. S. at the time he so offered, uttered, dis- 
 posed of and put off the said last-mentioned forged note as aforesaid, 
 then and there well knowing the same to be forged) ; against the 
 form [as ante, p. 347]. It is unnecessary to set out the forged instru- 
 ment; it is sufficient to describe it by any name or designation by which 
 it is usually known, or by its purport, 24 & 25 Vict. c. 98, s. 42, ante, 
 
574 Forgery. 
 
 p. 554. In the counts for offering and disposing of the note, it ii not 
 necessary to allege to whom it vxis so offered, etc. JR. r. Solden, 2 
 Taimt. 334; JR. & R. 154. The intent may he laid "to defraud" 
 generally ; 24 cd 25 Vict. c. 98, s. 44, ante, p. 555. 
 
 Felony. 24 (6 25 Vict. c. 98, s. 12. See the last precedent. 
 
 This offence is not triable at quarter sessions, 5 tfi 6 Vict. c. 38, s. 1 
 {ante, p. 104). 
 
 Evidence. 
 
 Prove the forgery as directed ante, p. 561 et seq. Under the 
 counts for uttering, you may give in evidence that the defendant 
 offered or tendered the note in payment, or that he actually passed 
 it, or otherwise disposed of it to another person. Where it appeared 
 that the defendant sold a forged note to an agent employed by the 
 bank to procure it from him, the judges held this to he within the act, 
 although it was objected that the prisoner had been solicited to 
 commit the act proved against him, by the bank themselves, by 
 means of their agents. iJ. v. Molden, 2 Tawnt. 334 ; R.& R, 154. 
 So, where A. gave B. a forged note to pass for him, and upon B.'s 
 tendering it in payment of some goods, it was stopped : the majority 
 of the judges held that A., by giving the note to B., was guilty of 
 disposing of and putting away the note, within the meanifig of the 
 act. R. V. Palmar, 1 N. R. 96 ; R. & R. 72 : R. v. Giles, 1 Mood. 
 C. C. 166 {ante, p. 569). As to evidence that the prisoner knew the 
 note to be forged at the time he disposed of it, and as to the othet 
 evidence necessary to support these counts, see ante, p. 568. 
 
 By statute 1 G. 4, c. 92, s. 3, and 16 & 17 Vict. c. 2, the bank of 
 England may cause the name of their signing clerk to be impressed 
 upon their bank-notes, bank post-bills, and bank bills of exchange, 
 by machinery, and all bank-notes, etc., on which the name of the 
 officer authorized by the bank to sign them shall be impressed by 
 machinery, shall be good and valid to all intents and purposes as if 
 such notes had been subscribed in the proper handwriting of such 
 officer, and shall be deemed and taken to be bank-notes, and may 
 be described as such in all indictments, and in all criminal and civil 
 proceedings whatsoever. 
 
 FORGING AKD UTTERING WILLS. 
 
 Statute. 
 
 24 cB 25 Vict. c. 98, g. 21.]— Whosoever, with intent to defraud, 
 shall forge or alter, or shall offer, utter, dispose of, or put off, know- 
 ing the same to be forged or altered, any will, testament, codicil, or 
 testamentary instrument, shall be guilty of felony, and being con- 
 victed thereof shall be liable, at the discretion of the court, to be 
 kept in penal servitude for life or for any term not less than three 
 years \nowfive years, 27 & 28 Vict. c. 47, s. 2, ante, p. 173], or to be 
 Imprisoned for any term not exceeding two years, with or without 
 ■hard labour, and with or without solitary confinement. 
 
Forgery. 575 
 
 Indicttnent. 
 
 Commencement as ante, p. 559] — ^feloniously did forge a certain will 
 and testament (" any mU, testament, codicil, or testamentary instru- 
 ment") purporting to be the last will and testament of one A.- B., 
 with intent thereby then to defraud; against the form [as ante, p. 
 347]. (2nd Cmmt.) That he " did offer, utter, dispose of, and put 
 off," as in the precedent (ante, ^.559). Thejvdges were equally divided 
 uprni the question, whether, in the absence of the existence of some person 
 who could have been defrauded by the forged will, a count for forging 
 it with intent to defraud a person or persons u/nkmown could be sup- 
 ported. E. V. TyMey, 1 Den. 319 ; 18 L. J. (M. C.) 36. Where, hy 
 this or any other act, any person is liable to pimishment for forging, 
 etc., amy instrument or writing, designated in such act, by any special 
 name or description, he may be indicted and pimished under this act, if 
 the instrument, however designated, is in law a mil, testament, codicil, 
 or testamentary writing. 24 c6 25 Vict. c. 98, s. 39 (ante, p. 555). 
 
 Felony : penal servitude for life or for not less than five [27 & 28 
 Vict. c. 47, S. 2, ante, p. 173] years, or imprisonment not exceeding two 
 years, with or uiithout hard labour, and with or without solitary con- 
 finement (such confinement not exceeding one month at any one time, nor 
 three months in any one year, 24 <& 25 Vict. c. 98, a. 53 (amte, p. 558). — 
 24 & 25 Vict. c. 98, s. 21. As to requiring the offender to enter into 
 recogaimncei and find sureties for keeping the peace. Id. s. 51, ante, 
 p. 558. 
 
 This offence is not triable at quarter sessions. 5 c6 6 Vict. c. 38, s. 1 
 (ante, p. 104). 
 
 Evidence. 
 
 Forgery may be committed by the false making of the will of a 
 living person ; R. v. Murphy, 2 East, P. C. 949 : M. v. Sterling, 1 
 Leach, 117: S. v. Coogan, Id. 449; or of a non-existing person, B. 
 V. Avery, 8 C. & P. 596. So, though it be signed by the wrong 
 christian name of the person whose will it purports to be. U. v. 
 Fitzgerald, 1 Leach, 20. See R. v. Wall, 2 East, P. C. 953 (ante, 
 p. 666). The probate unrepealed is not conclusive evidence to bar 
 an indictment for forging a will. S. v. Buttery, R. & R. 342. 
 
 Prove the forgery and uttering, as directed ante, p. 561 et seq., and 
 the intent to defraud, ante, pp. 567, 208. See R. v. Tylney, supra. 
 
 On an indictment for uttering a forged will, which, together with 
 writings in support of it, it was suggested liad been written over 
 pencil marks that had been rubbed out, it was held that the evidence 
 of an engraver, who had examined the paper with a mirror, and 
 traced the pencil marks, was admissible on the part of the prosecu- 
 tion. R. v. T. Williams, 8 C. <& P. 434. 
 
 FOKGlKG AND UTTERING DEEDS, BONDS, ETC. 
 
 Statute. 
 24 (& 25 Vict. c. 98, s. 20.]— Whosoever, with intent to defraud, 
 shall forge or alter, or shall offer, utter, dispose of, or put off, know- 
 ing the same to be forged or altered, any deed, or any bond or writ- 
 
576 Forgeiy. 
 
 ing obligatory, or any assignment at law or in equity of any such 
 bond or writing obligatory, or shall forge any name, handwriting, or 
 signature purporting to be the name, handwriting, or signature of a 
 witness attesting the execution of any deed, bond, or writing obliga- 
 tory, or shall offer, utter, dispose of, or put off any deed, bond, or 
 writing obligatory, having thereon any such forged name, hand- 
 writing, or signature, knowing the same to be forged, shall be guilty 
 of felony, and being convicted thereof shall be liable, at the discre- 
 tion of the court to be kept in penal servitude for life or for any term 
 not less than three years [now five, years, 27 & 28 Vict. c. 47, s. 2, 
 ante, p. 173], or to be imprisoned for any term not exceeding two 
 years, with or without hard labour, and with or without solitary con- 
 finement. 
 
 Indictment for Forging a Bond. 
 
 Commencement as ante, p. 569] — a certain bond and writing obli- 
 gatory (" any deed or any bond or ivriting obligatory, or any assign- 
 ment at law or in equity of any such bond or writing obligatoi-y, or any 
 name, handwriting, or signature, purporting to be the name, etc., of a 
 witness attesting the execution of any deed, bond, or writing obligatory"), 
 with intent thereby then to defraud; against the form [as ante, p. 347]. 
 (2nd Count.) And the jurors aforesaid, upon their oath aforesaid, do 
 fiirther present, that the said J. S. afterwards, to wit, on the day and 
 year last aforesaid, feloniously did offer, utter, dispose of, and put 
 off, a certain other forged bond and writing obligatory, with intent 
 thereby then to defraud, he the said J. S. at the time he so offered, 
 uttered, disposed of, and put off, the said last-mentioned forged bond 
 and writing obligatory as aforesaid, well knowing the same to be 
 forged; against the form [as ante, p. 347]. 
 
 Felony : penal servitude for life or for not less than five [27 ^ 28 
 Vict. c. 47, s. 2, ante, p. 173) years, or imprisonment for not mure 
 than two years, with or loithout hard labour, and with or without 
 solitary confinement (such confinement not exceeding one month at 
 any one time, nor three months in any one year), 24 ^ 25 Vict. c. 98, 
 s. .53 {ante. p. 558). — 24 ^ 25 Vict. c. 98, s. 20. As to requiring the 
 offender to enter ini o recognizances and find sureties for heeping the 
 peace. Id. s. 51, ante, p. 658. 
 
 This offence is not triable at quarter sessions. 5^6 Vict. c. 38, 
 s. 1 (ante, p. 104). 
 
 Evidence. 
 
 Prove the forging and uttering, as directed ante, p. 661 et seq. 
 Under the second count, you may give in evidence a disposing of 
 the bond as a forgery, or the making use of it, or attempting to make 
 use of it, as a genuine instrument. 
 
 The forging of a deed, which is directed to be in a particular form 
 by particular statutes, which had not been complied with, has been 
 decided to be within the repealed stat. 2 G. 2, c. 25. R. v. Lyon, R. 
 <& R. 256. And a power of attorney to transfer government stock, 
 signed, sealed, and delivered, was holden to be a deed within that 
 statute. R. v. Fauntleroy, 1 Mood. C. C. 52; 2 Bing. 413: \ C.&P. 
 421. But the forging of such a power of attorney is now the sub- 
 ject of a distinct provision. 24 & 26 Vict. c. 98, s. 2 (post). The 
 giving of an administration bond to the ordinary in a false name is 
 a forgery. R.y. B(wber,\ C. & K. ASA. That a man may be guilty 
 
Forgery. 577 
 
 of forgery by making a false deed in his own name, see R. v. Ritson, 
 L. R, 1 a a R. 200; 39 L. J. (M. C.) 10, amte, p. 561. 
 
 The present statute, which is larger in its terms than the former 
 acts, extends to any assignment, at law or in equity, of a bond, and 
 to any attestation of a deed or bond. 
 
 rOEGING AND UTTEKING BILLS OP EXCHANGE AND PROMISSORY 
 NOTES. 
 
 Statute. 
 24 <£ 25 Vict. c. 98, b. 22.] — Whosoever shall forge or alter, or 
 shall offer, utter, dispose of, or put off, knowing the same to be forged 
 or altered, any bill of exchange, or any acceptance, indorsement, or 
 assignment of any bill of exchange, or any promissory note for the 
 payment of money, or any indorsement or assignment of any such 
 promissory note, with intent to defraud, shall be guilty of felony, and 
 being convicted thereof shall be liable, at the discretion of the court, 
 to be kept in penal servitude for life or for any term not less than 
 three years [now Jive years, 27 d; 28 Vict. c. 47, s. 2, ante, p. 173], or 
 to be imprisoned for any term not exceeding two years, with or 
 without hard labour, and with or without solitary confinement. 
 
 Indictment for Forging a Bill of Exchange. 
 
 Commencement as ante, p. 559] — a certain bill of exchange (" any 
 hill of exchange, or any promissory note for the payment of money"), 
 with intent thereby then to defraud; against the form [as ante, p. 347]. 
 (2nd Coimt.) That the defendant " did offer, utter, dispose of, and put 
 off" a certain other, etc., etc., as in the precedent (ante, p. 559). If the 
 acceptance he also forged, add counts for it in this form. (3rd Count.) 
 And the jurors aforesaid, upon their oath aforesaid, do further pre- 
 sent, that the said J. S. afterwards, to wit, on the year and day last 
 aforesaid, having in his custody and possession a certain other bill 
 of exchange*, feloniously did forge on the said last-mentioned bill 
 of exchange an acceptance (" any acceptance, indorsement, or assign- 
 ment of amy bill of exchange or any indorsement or assignment of any 
 such promissory note") of the said last-mentioned bill of exchange, 
 which said forged acceptance is as follows: that is to say, "Accepted, 
 payable at the bank of Messrs. Coutts & Co., John Giles" [or as the 
 acceptance may Je], with intent thereby then to defraud; against the 
 form [as ante, p. 347]. (ith Count.) Same as the last to the^, and 
 then as follows : on which said last-mentioned bill of exchange was 
 then written a certain forged acceptance of the said last-mentioned 
 bill of exchange, which said forged acceptance of the said last-men- 
 •tioned bill of exchange is as follows: that is to say [here set out the 
 acceptance as in the last coumf]; he the said J. S., on the day and year 
 last aforesaid, feloniously did offer, utter, dispose of, and put off the 
 said forged acceptance of the said last-mentioned bill of exchange, 
 with intent thereby then to defraud (he the said J. S., at the time 
 he so offered, uttered, disposed of, and put off, the said forged ac- 
 ceptance of the said last-mentioned bill of exchange, well knowing 
 the said acceptance to be forged); against the form [as ante, p. 347]. 
 If an indorsement he also forged, add counts for it in this form, (bth 
 W. C C 
 
578 Forgery. 
 
 Coimt.) And the jurors aforesaid, upon theii- oath aforesaid, do 
 further present, that the said J. S. afterwards, to wit, on the day 
 and year last aforesaid, having in his custody and possession a 
 certain other bill of exchange*, feloniously did forge on the hack 
 of the said last-mentioned bill of exchange a certain indorsement 
 of the said bill of exchange, which said forged indorsement is as 
 follows: that is to say, "James Sykes & Co.," with intent thereby 
 then to defraud; against the form [as ante, p. 347]. {&th Count.) 
 Same as the last to the ", and then as follows: on the back of which 
 said last-mentioned bill of exchange was then written a certain 
 forged indorsement of the said last-mentioned bill of exchange, which 
 said last-mentioned forged indorsement is as follows: that is to say, 
 "James Sykes & Co.;" he the said J. S., on the day and year last 
 aforesaid, feloniously did offer, utter, dispose of, and put off, the said 
 last-mentioned forged indorsement of the said last-mentioned bill of 
 exchange, with intent thereby then to defraud (he the said J. S., at 
 the time he so offered, uttered, disposed of, and put off, the said last- 
 mentioned forged indorsement of the said last-mentioned bill of ex- 
 change, well knowing the said indorsement to be forged) ; against the 
 form [a« amte, p. 347]. From the above precedent an indictment may 
 readily he framed for forging and uttering a promissory note, merely 
 substituting for the vxn-ds " bill of exchange" the words " promissory 
 not9 for the payment of money," and omitting of course the counts as 
 to the acceptance. An indictment under 24 <& 25 Vict. c. 98, «. 40 {ante, 
 p. 556), for uttering a forged foreign bill or note, need not allege it to 
 be payable out of England. R. v. Lee, 2 M. & Rob. 281. 
 
 Felony : penal servitude for life or for not less them Jive [27 cfe 28 
 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment, not exceeding 
 two years, with or without hard labour, and with or withovi solitary 
 confinement (such confinement not exceeding one month at amy one time, 
 nor three months in any one year, 24 & 25 Vict. c. 98; s. 53, anU, 
 p. 558). — 24 & 25 Vict. c. 98, «. 22. As to requiring the offender to 
 enter into recogniza/nces, and find swretiesfor heeping the peace, Id. s. 
 51, ante, p. 558. 
 
 TTiis offence is not triable at quarts sessions. 6 <6 6 Vict. c. 38; s. 1 
 (ante, p. 104). 
 
 Evidemie. 
 
 Produce the bill of exchange in evidence, and prove the forgery 
 and uttering, as directed ante, p. 561, et seq. 
 
 A bill payable ten days after sight, purporting to have been drawn 
 upon the commissioners of the navy, by a lieutenant, for the amount 
 of certain pay due to him, has been holden to be a bill of exchange 
 within the repealed statute 2 G. 2, c. 25. R. v. Chisholm, R. & B. 
 297. So a note promising to pay A. and B., " stewardesses " of a 
 certain benefit society, or their " successors," a certain sum of money 
 on demand, has been holden to be a promissory note within the 
 meaning of that act, although it appeared that the society was not 
 duly enrolled, as directed by act of parliament ; for, within the 
 meaning of the act, it was not necessary that the note should be 
 negotiable. R. v. Box, 6 Taunt. 325 ; R. & R. 300. See B. v. 
 M'Keay, 1 Mood. C. C. 130. An instrument drawn by A. on B., 
 requiring him to pay to the administrators of C. a certain sum at a 
 certain time " without acceptance," is a bill of exchange, and may be 
 so described in the indictment. jB. v. Kinnear, 2 M. & Rob. 117. 
 So, though there be no person named as drawee, the defendant may 
 be indicted for uttering a forged acceptance on a bill of exchange. 
 
Forgery. 579 
 
 R. V, Hawhes, 2 Mood. C. C. 60 ; for the act of putting the accept- 
 ance is a sort of estoppel to say it was not a bill of exchange. But 
 an indictment for forging a hill of exchange cannot be sustained in 
 the case of such an instrument. R. v. Ourry, 2 Mood. C. C. 218. 
 And it has been held that a person cannot be convicted for forging 
 an acceptance to a bill of exchange, where, at the time the accept- 
 ance was forged, the bill had not been signed by the drawer. R. v. 
 Mopsey, 11 Cox, 143. And a document in the ordinary form of a 
 bill of exchange, but requiring the drawee to pay to his ovm order, 
 and purporting to be indorsed by the drawer, and accepted by the 
 drawer, cannot, in an indictment for forgery or uttering, be treated 
 as a bill of exchange. R. v. Ba/rtlett, ^M . & Rob. 362. But an 
 instrument payable to the order of A., and directed "-4f Messrs. 
 P. & Co., Bankers," was held to be properly described as a bill of 
 exchange. R. v. Sidney Smith, 2 Mood. C. C. 295 : see Gray v. 
 Milner, 8 Taunt. 739. In order that a promissory note should be 
 within the meaning of s. 22, it is necessary that it should be for the 
 payment of money only ; and a country bank-note for the payment 
 of one guinea, "in cash or Bank of England notes" was holden not 
 to be "a promissory note for the payment of money" within the 
 2 Geo. 2, c. 25. R. v. Wihoch, 2 Russ. 498. See 1 Leach, 180; 2 
 East, P. C. 926. Such a case would, however, now be met by the 
 24 (£ 25 Vict. c. 98, s. 12, ante, p. 573. A seaman's advance note, 
 pui-porting to be signed by the master and owner, and in the follow- 
 ing form — " Ten days after the ship C. sails from the port of L. the 
 undersigned hereby promise and agree to pay to any person who shall 
 advance 4Z. to H. on this agreement, the sum of 4/., provided that 
 the said H. shall sail in the said ship from the said port of L.," — is 
 not a promissory note. R. v. Howie, 11 Cox, 320, post, p. 586. 
 
 The adding of a false address to the name of the drawee Of a bill, 
 while the bill is in the course of completion, in order to make the 
 acceptance appear to be that of a different existing person, is a for- 
 gery. R. v.menkinsop, 1 Den. 276; iC.SK. 531 ; 17 L. J. {M. C.) 
 62. And it is too plain for argument, that the adding of an address 
 to a bill so as to make it appear that the acceptance though really 
 written by a person of the same name is that of a different person — 
 whether such person existed or not — is forgery. R. v. Epps, i F.d; 
 F.S5,perWilles,J. 
 
 Where the charge in the indictment was for forging " a certain 
 indorsement of" a bill of exchange, " which said forged indorsement 
 was and is as follows : — Magdalene Isherwood ;" and the bill, as set 
 out in some of the counts of the indictment, and as proved in evi- 
 dence, was payable to the order of four persons, of whom Magdalene 
 Isherwood was one, as joint executrixes ; the indictment was held by 
 all the judges to be sufficient, and the charge to be proved. R. v. 
 Wintirbottom, 1 Den. 41; 2 C. (& K. 37. 
 
 An indorsement " per procuration, J. S." signed in the defendant's 
 own name, was held, on the repealed act, 11 G. i <& 1 W. 4, c. 66, 
 s. 3, not to be a forgery, though the defendant falsely alleged that 
 he had authority from J. S. to indorse. R. v. White, 1 Den. 208; 
 2 C.& K. 404. But this case is now provided for by the 24 & 25 
 Vict. c. 98, s. 24, as follows :— Whosoever, with intent to defraud, 
 shall draw, make, sign, accept, or indorse any bill of exchange or 
 promissory note, or any undertaking, warrant, order, authority, or 
 request, for the payment of money, or for the delivery or transfer of 
 goods or chattels, or of any bill, note, or other security for money, 
 cc2 
 
580 Forgery. 
 
 by procuration or otherwise, for, in the name, or on the account of 
 any other person, without lawful authority or excuse, or Bhall offer, 
 utter, dispose of, or put off any such bill, note, undertaking, warrant, 
 order, authority or request so drawn, made, signed, accepted, or 
 indorsed by procuration or otherwise without lawful authority or 
 excuse as aforesaid, knowing the same to have been so drawn, made, 
 signed, accepted, or indorsed as aforesaid, shall be guilty of felony, 
 and being convicted thereof shall be liable, at the discretion of the 
 court, to be kept in penal servitude for any term not exceeding four- 
 teen years and not less than three years [now five years, 27 <Sc 28 Vict, 
 c. 47, «. 2, ante, p. 173], or to be imprisoned for any term not exceed- 
 ing two years, with or without hard labour, and with or without Boli- 
 taiy confinement. 
 
 FORGING AND UTTERING ORDERS, RECEIPTS, ETC., FOR MONEY, 
 GOODS, ETC. 
 
 Statute. 
 
 24 & 25 Vict. c. 98, s. 23.] — Whosoever shall forge or alter, or 
 shall offer, utter, dispose of, or put off, knowing the same to be forged 
 or altered, any undertaking, warrant, order, authority, or request for 
 the payment of money, or for the delivery or transfer of any goods 
 or chattels, or of any note, bill, or other security for the payment of 
 money, or for procuring or giving credit, or any indorsement on or 
 assignment of any such undertaking, warrant, order, authority, or 
 request, or any accountable receipt, acquittance, or receipt for money 
 or for goods, or for any note, bill, or other security for the payment 
 of money, or any indorsement on or assignment of any such account- 
 able receipt, with intent in any of the cases aforesaid to defraud, 
 shall be guilty of felony, and being convicted thereof shall be liable, 
 at the discretion of the coui-t, to be kept in penal servitude for life, 
 or for any term not less than three years [now five y Baa's, 27 efe'28 Vict. 
 c. 47, s. 2, ante, p. 178], or to be imprisoned for any term not exceed- 
 ing two years, with or without hard labour, and with or without soli- 
 tary confinement. 
 
 Sect. 25 — Altering, etc., Crossings on Cheques.'] — Whenever any 
 cheque or draft on any banker shall be crossed with the name of a 
 banker, or with two transverse lines with the words " and company," 
 or any abbreviation thereof, whosoever shall obliterate, add to, or 
 alter any such crossing, or shall offer, utter, dispose of, or put off any 
 cheque or draft whereon any such obliteration, addition, or alteration 
 has been made, knowing the same to have been made, with intent, in 
 any of the cases aforesaid, to defraud, shall be guilty of felony, and 
 being convicted thereof shall be liable, at the discretion of the court, 
 to be kept in penal servitude for life, or for any term not less than 
 three years [now five years, 27 <& 28 Vict. c. 47, s. 2, ante, p. 173], or 
 to be imprisoned for any term not exceeding two years, with or 
 without hard labour, and with or without solitary confinement. 
 
Forgery.. 581 
 
 Indictment for Forging a Warrant or Order for the Payment of 
 
 Commencement as amte,p. 559] — a certain warrant for the payment 
 of money (" amy undertaking, warrant, order, authority or request, for 
 the payment of money") with intent thereby then to defraud ; against 
 the form [as ante, p. 347] . 2nd Coimt (as ante, p. 513), for offering, 
 uttering, disposing of, and putting off, "a certain other forged warrant 
 for the payment of money." Add separate counts describing the 
 document as an " order," as an " authority," and as a " request" for 
 the payment of money. If the charge in the indictment be for forging 
 a warrant and order, it has been ruled that proof of a document which 
 is a warrant, but not am order for the payment of money, will not sus- 
 tain the indictment. R. v. Williams, 2 C. t& K. 51. Sed queere; see 
 R. V. Williams, 2 Den. 61; 20 L. J. (M. C.) 106, post, p. 583. 
 
 Felony. See the last precedent. 24 d; 25 Vict. c. 98, s. 23. 
 
 This offence is not triable at quarter sessions. 5 <£ 6 Vict. c. 38, s. 1 
 (ante, p. 104). 
 
 Evidence. 
 
 Prove the forgery and uttering, etc., as directed ante, p. 561, et seq. 
 It only remains here to show what warrants, orders, etc., are within 
 the meaning bf the act. 
 
 It is not necessary in order to constitute a document a "warrant," 
 " authority," or " request," for the payment of money, that it should 
 appear to be so on its face. It is sufficient if the party to whom it is 
 addressed has been in the habit of treating similar documents as war- 
 rants, etc., for the payment of money. And therefore a document, 
 in form a mere receipt given by a depositor to a building society 
 that received money on deposit, may properly be described in an 
 indictment as a " warrant," " authority," or " request," for the pay- 
 ment of money, if, by the custom of the society, such receipts are in 
 fact treated as warrants, authorities, and requests, for the payment 
 of money. R. v. Kay, L. R., 1 C. C. R. 257; 39 L. J. (M. C.) 118. 
 
 A draft upon a banker (although it be post-dated, R. v. Taylor, 1 
 C. (& K. 213) is a warrant and order for the payment of money, 
 within the statute ; R. v. Willoughby, 2 East, P. C. 944 ; so is even 
 a bill of exchange. R. v. Sheppard, 1 Leach, 226 : R. v. Smith, 1 
 Den. 79. So an order to pay " all my prize-money due to me for 
 my services on board his Majesty's ship ' Leander,' " without spe- 
 cifying any particular sum, was holden to be within the repealed 
 statute 7 G. 2, c. 22. R. v. M'Intosh, 2 East, P. C. 942. But where 
 the defendant drew a bill, " Please to pay the bearer on demand fif- 
 teen pounds, and accompt it to your humble servant, C. H. Ravens- 
 croft," which was his name; and when the instrument was uttered, 
 there was forged upon it, " Payable at M. & Co.'s, Wm. M'Inohary;" 
 and it appeared that Mr. M'Inchary kept cash at M. & Co.'s, who 
 were bankers: it was holden that this was not an order for the pay- 
 ment of money, there being no special averment that it was intended 
 for an order, or that M. & Co. were bankers. R. v. Ravenscroft, 
 R. & R. 161. A writing in the form of a bill of exchange, but with- 
 out any drawee's name, cannot be charged as an order for the pay- 
 ment of money; at least, unless shown by averments to be such. R. 
 V. Carry, 2 Mood. C. C. 218. So, where the instrument is in any other 
 respect incomplete, and therefore not operative; as where the prac- 
 tice was for a majority of the officers of a parish to draw cheques on 
 
582 Forgery. 
 
 the treasurer of a union ; and one of their blank cheques, filled up for 
 \l. 33. 6d. had a note at the bottom, " Unless this cheque is signed by 
 a majority of the parish officers, it will not be cashed;" this cheque 
 was signed by one of the officers while it was for \l. 3«. M.\ it was 
 then altered to 3Z. 3s. 6d, and when cashed by the treasurer had the 
 signatures of a majority of the officers to it; it was held, that if the 
 cheque was frauduently altered when it had only one signature to it, 
 this was no forgery. R. v. Turpm, 2 C. & K. 820. On an indict- 
 ment for forging and uttering a " warrant and order for the payment 
 of money, to wit, a warrant and order for the payment of 85Z." and 
 for forging an acquittance and receipt for money, to wit, for 85Z., it 
 was proved that J. M. had paid 85Z. into a country hank, and had 
 taken an accountable receipt for that amount, and that the course of 
 dealing at the bank was to treat such receipt with the depositor's 
 name thereon, as an order for the payment of the money deposited, 
 and interest. The defendant took the receipt to the bank, and 
 having written the name of " J. M." thereon, delivered it to the 
 bankers, who paid him 87Z. 17«. &d. for principal and interest. He 
 was held to have been rightly convicted. R. v. Atkinson, 2 Mood. 
 C. C. 215; C. di Mar. 325. Where the instrument was an order to 
 pay the prisoner, or order, the sum of four pounds five shillings, being 
 a month's advance on an intended voyage to Quebec, in the ship 
 " Mary Ann," as per agreement with Gr. M., master: and the prisoner 
 had written in the margin of the order, " On receiving this cheque I 
 agree to sail, and to be on board within sixteen days from the date 
 of this cheque ;" it was held a good order for-the payment of money 
 within the repealed statute 1 W. 4, c. 66, s. 3. R. v. BamfieU, 1 
 Mopd. C. C. 417. And see R. v. Anderson, i M. & Rob. 469: and R. 
 V. Howie, 11 Cox, 320, post, p. 586. So, a foreign letter, requesting 
 a correspondent in England to advance money, it being proved that 
 such letters are in the course of business treated as orders, was held 
 to support a charge of forging an order for the payment of money. 
 R. v. Raake, 2 Mood. C. C. 66; 8 C. & P. 626. A dividend warrant 
 of a railway company, signed by the secretary and addressed to a 
 banker, requiring him to pay the sum named in the warrant tp a cer- 
 tain shareholder, and to charge the same to the company's revenue 
 account, was held to be properly described as a warrant and an order 
 for the payment of money. R. v. Autey^ Dears. & B. 295; 26 L. J. 
 {M. C.) 190. And the document containing a statement that the 
 shareholder's name must be indorsed on the back, without which in- 
 dorsement it was proved that the mpney would not be paid even to 
 him, a forgery of such indorsement was held to be a forgery of the 
 entire document. Id. A writing purporting to authorize the bearer 
 to receive money deposited in a bank by a friendly society on ac- 
 countable receipts, and purporting to be signed by the principal 
 officers of the society (the bank having received the money on terms 
 of repayment to the order of the society), was held to be well de- 
 scribed as a warrant for the payment of money, and it was held no 
 objection that the defendant was himself a member of the society. 
 R. V. Hams, 2 Mood. C. C. 267; \ C. & K. 179. Where the forged 
 paper was as follows: "This is to certify that R. R. has swept the 
 flues and cleaned the bilges, and repaired four bridges of the 'Prin- 
 cess Victoria,' J. N., 4Z. Os. \Qd.-" and it was proved that, by the 
 course of dealing between the parties, this voucher, if genuine, would 
 have authorized L. & Co. to pay the Al. Os. Xdd. : this was holden 
 sufficient to support an indictment, charging it as a warrant for the 
 
Forgery. 683 
 
 payment of money. R. v. Rodgeira, ^ C. & P. 41. But a paper in 
 the following terms: — " I hereby certify that the within-named W. M. 
 is gaining his living by hawking;" the production of which was 
 necessary, in order that the defendant might obtain payment of a 
 sum of money; was held not to be either an undertaking, a warrant, 
 or an order for the payment of money, and to be the subject only of 
 forgery at common law. R. v. Mitchell, 1 F. & F. 44. A forged 
 document, purporting to be a bill for goods sold to the prosecutor, 
 with a request for its payment, was held to be both a warrant and 
 an order within this section. R. v. Davison, 2 Den. 75; 20 L. J. 
 (M. C.) 102. A letter, written to a. wholesale house in London, in 
 the name of a customer in the country, in the following terms: — "I 
 shall feel obliged by your paying Mr. B. the sum of 21. 7s. 8d., and 
 debiting me with the same; you will please have a receipt, and add 
 the amount to invoice of order on hand:" was held not be either an 
 undertaking, a warrant, or an order for the payment of money; but 
 a request. R. v. Thorn, 2 Mood. C. G. 210; C. & Mar. 206. See 
 also R. V. Roherts, 2 Mood. C. C. 258; C. & Mar. 652. The forgery 
 of a " request" for the payment of money is, however, now an indict- 
 able offence under 24 & 25 Vict. c. 98, s. 23, ante, p. 680. Where 
 the defendant, in England, forged on a letter of credit, whereby a 
 bank in Australia was required to "honour the draft" of R. T. for 
 50Z., an indorsement of E. T.'s name, this was held not to be the 
 forgery of an order for the payment of money, payment of the money 
 on such simple indorsement not teing within the original mandate. 
 R. V. Wilton, 1 F. d: F. 391. It seems, however, that though the 
 instrument be called in the indictment " a warrant, order, and re- 
 quest," when it is but one of these, if it be set out in hcec verba, so as 
 to enable the court to judge of its purport, the misdescription (if it 
 be one) is immaterial. R. v. Williams, 2 Den. 61; 20 L. J. (M. C.) 
 106. It may therefore be prudent, in the case of an instrument of 
 this nature, either to describe it, in several counts, as a " warrant," 
 an " order," and a " request" for the payment of money or delivery 
 of goods, or to set it out in hcec verba, notwithstanding the provisions 
 of the 24 & 25 Vict. c. 98, ss. 42, 43. 
 
 A warrant or order for the payment of money must purport, or 
 must be shown by evidence, to be made by some person who might 
 command the payment of the money, and to be made upon a per- 
 son who was compellable to obey it. See R. v. Clinch, 2 East, P. C. 
 938. Thus, an order to a tradesman to let the bearer have certain 
 goods, and which it was optional with the tradesman to obey or not, 
 was holden not to be within the repealed stat. 45 G. 3, c. 89, the 
 words of which were " warrant or order for the delivery of goods." 
 R. V. Williams, 1 Leach, 114 : R. v. Mitchell, Fast. 119 ; and see R. 
 V. Ella/r, 1 Leach, 323: R. v. Baher, 1 Mood. C. C. 231 : R. v. New- 
 ton, 2 Mood. C. C. 59; R. v. Thorn, R. v. Mitchell, supra. So, a 
 forged magistrate's order for a reward for apprehending a vagrant, 
 which appeared upon the face of it to be defective, as not being under 
 seal, or directed to the constable, etc., was holden not to be within 
 the statute ; for, without these requisites, it was nothing more than 
 the order of a mere individual, which the treasurer was not bound to 
 obey. R. v. Rushworth, R. <& R. 317. But such orders would be 
 " authorities" or " requests" under 24 <& 25 Vict. c. 98, «. 23, ante, p. 
 680. An indictment for forging an order for relief to a discharged 
 prisoner, under the 5 G. 4, c. 85, being in many instances ungram- 
 matieal, and at variance from the act, was held bad. R. v. Donnelly, 
 
584 Forgery. 
 
 1 Mood. C. C. 438. Such an instrument, however, is properly de-: 
 scribed as an order for the payment of money. R. v. if-Connell, 2 
 Mood. C. C. 298 ; 1 C. d K. 371. The money orders issued by the 
 Post- Office were held to be waiTants and orders for the payment of 
 money, within the stat. 7 <& 8 G. i, c. 29, s. 5. B. v. Gilchrist, 2 
 Mood. C. C. 233 ; C. dk Mar. 224, ante, p. 373. Where a defendant 
 was indicted for forging the order of a justice upon the treasurer of. 
 a county under the stat. 48 G. 3, c. 75, by which a justice may 
 order the treasurer of a comity to pay churchwardens, etc., the ex- 
 penses of burying dead bodies cast on shore, and it did not appear 
 on the order that the person to whom the money was to be paid was 
 an officer within the words of that statute ; it was h olden to be an 
 order within the statute : because it did not appear that the party 
 ■vrasnot such an officer, and the treasurer was bound to conclude that 
 the justice would not make such an order without satisfying himself 
 that the party was such an officer. R. v. Proud, R. & R. 389. In 
 R. V. Baker, 1 Mood. C. C. 231, the forged instrument was thus:— 
 "Mr. Thomas: Sir, you will please pay the bearer, for Richard 
 Power, three pounds, for three weeks, due to him, a country member, 
 and you will oblige yours, etc., J. Beswick." Beswick was secre- 
 tary to a fnendly society, some of whose funds were in the hands 
 of Thomas. The prisoner was convicted ; but the judges held this 
 not to be an order upon the face of it, and that the conviction was 
 wrong. The forged instrument, however, in that case would have 
 been an " authority" or " request" under 24 c6 25 Vict. c. 98, s. 23. 
 Where the defendant, who was in the employ of a tanner, and paid 
 by the job, was employed also to arrange the accounts for himself 
 and the other men, and made out the account weekly and brought 
 it to the foreman, stating therein the amount to which he was 
 entitled, and the foreman looked it over, and if he found it correct, 
 signed it, and then the defendant took it so signed to the cashier, 
 who on seeing the signature paid the amount ; and the defendant 
 on one occasion presented to the cashier an account for a larger 
 sum than was due to him, with the name of the foreman forged 
 thereto ; this was held not to be a forgery of a warrant for the- 
 j)aynmet of money, inasmuch as, assuming the document to be 
 genuine, the cashier would have no claim in respect of it on the 
 foreman. R. v. Pilling, 1 F. S P. 324. A forged draft on a banker, 
 in a fictitious name, or in the name of a person who never kept cash 
 with the banker, is a warrant or order within the meaning of the act ; 
 R. V. Lockett, 2 East, P. C. 940; 1 Leach, 94: R. v. Abraham, 2 
 East, P. C. 941; for it imports, upon the face of it, to be an order by 
 a person having authority to make it. So, a forged draft in the 
 name of a person who does keep cash with the banker, is an order 
 within the act, whatever be the state of his account at the time. 
 R. V. Carter, 1 Den. C. C. 65; 1 C. & K. 741. Where, on the con- 
 trary, a man obtains goods upon his own draft on a banker, with 
 whom he does not keep cash, we have seen {ante, p. 476) that the 
 proper mode of proceeding against him criminally is by indictment 
 for the false pretence. 
 
 The cases on this subject, some of which it is not easy to reconcile, 
 were all considered by the judges in B. v. Vivian, 1 Den. 35 ; 1 C.& 
 K. 719 ; in which they laid down the principle, that any instrument 
 for the payment of money, under which, if genuine, the payer 
 might recover the amount against the party signing it, might pro- 
 perly be considered as a warrant for the payment of money ; and 
 
Forgery. 685 
 
 that it was equally such, whatever were the state of account between 
 the parties, and whether the party apparently signing it had at the 
 time funds in the hands of the party to whom it was addressed or 
 not. In that case the forged instrument was as follows : — " Mr. M. 
 will be pleased to send by the bearer lOZ. on Mr. H.'s account, as 
 Mr. H. is very bad in bed, and cannot come himself." Signed, " M. 
 .R., foreman, St. A. foundry." M. was a clerk of bankers, with whom 
 H. kept an account, and by drafts on whom he paid his workmen. 
 M. E. was H.'s foreman, having authority to pay the workmen, but 
 not to draw for the money. H. being ill in bed, the defendant forged 
 this paper in the name of M. R., and obtained the lOZ. from M. by 
 means of it. It was held that he was properly convicted under the 
 1 W. 4, c. 66, s. 3, although M. R. had himself no account with the 
 bankers ; because by this instrument, if genuine, M. R. said in effect 
 that he had authority from H., who had an account with them ; and 
 as against him, therefore, it was as much a warrant as if he himself 
 had had such account, and would equally have bound him. This 
 decision seems to render the authority of some of those before re- 
 ferred to at least questionable. {See also R. v. Carter, supra.) 
 
 Lastly, it had been laid down, that the order must, to satisfy the 
 statute, purport on its face to be directed to the person having pos- 
 session of the money : and therefore, where an order to deliver to the 
 bearer 8 lbs. of silk did not appear to be directed to any person, it 
 was holden by the judges not to be within the repealed stat. 45 G. 3, 
 c. 89, 8. 1, the words of which were " warrant or order," etc. R. v. 
 Clinch, 2 East, P. C. 938. But that case was decided on the form of 
 themdictment, and before the stat. 2(&3W.4:,c. 123, s. 3, whereby it 
 was declared to be sufficient to describe the forged instrument in the 
 indictment in such manner as would sustain an indictment for steal- 
 ing it. In the more recent case- of R. v. Rogers, 9 C. S P. 41, it 
 was held by Bosanquet, J., and Parke, B., that a warrant for the pay- 
 ment of money need not, in order to come within that statute, be ad- 
 dressed to any particular person ; but that it was sufficient if it 
 would, if genuine, have been an authority to a certain person to pay 
 the amount mentioned in it. And in R; v. Snelling, Lfears. 219 ; 23 
 L. J. (if. C) 8, where the forged instrument was thus : — " Sir, 
 please to pay," etc., it was held that it might be shown by evidence 
 to be an order for the payment of money, and for whom it was 
 intended. 
 
 It was no offence, under the repealed acts, to forge an indorsement 
 on a warrant or order for the payment of money; R. v. Arscott, 6 C. 
 <& P. 408 ; but the present statute expressly includes " any indorse- 
 ment on or assignment of any such undertaking, warrant, order, 
 authority, or request." 
 
 A written promise to pay a sum specified, or such other sura not 
 exceeding the same, as A. B. may incur by reason of his suretyship, 
 is an wndertaKng for the payment of money within the statute. R. 
 v. Reed, 2 Mood. C. C. 62 ; 8 C. & P. 623. So also is a document 
 purporting to guarantee a master to a certain amount in money 
 against the dishonesty of a clerk. R. v. Joyce, L. & C. 576 ; 34 L. 
 J. (M. C.) 168. A sailor's shipping note purporting to be signed by 
 the master and in the following form: — "In consideration of P. 
 sailing as steward in the brig K. from the port of L., I undertake to 
 pay to P. or bearer, 21., five days after the said brig shall sail from 
 the said port," is an undertaking within the statute. R. v. Anderson, 
 2 M. & Rob. 469, Such a note, which is popularly known as a 
 
 c c 5 
 
586 Forgery. 
 
 seaman's advance note, purporting to be signed by the owner and 
 master, and which was in the following form : — " Ten days after the 
 ship C. sails from the port of L., the undersigned hereby promise and 
 agree to pay to any person who shall advance 4i to H. on this agree- 
 ment, the sum of 4Z., provided the said H. shall sail in the said ship 
 from the said port of L.," was held not to be an order for the payment 
 of money within the statute. R. v. Howie, 11 Cox, 320. It would 
 seem, however, to be an vrnderlaHng for the payment of money 
 within the statute. R. v. Anderson, ubi mpra : and see R. v. Bam- 
 fieU, 1 Mood. G. C. 417, ante, p. 582. And the statute applies as 
 well to a written promise for the payment of money by a third 
 person as by the supposed party to the instrument. M. v. Stme, 1 
 Den. 181 ; 2 C. <& E. 364. 
 
 An instrument professing to be a scrip certificate of a railway 
 company is not an undertaking within the statute. R. v. West, 1 
 Den. 258 ; 2 C. (& K. 496. 
 
 The present statute for the first time includes an " authority,'' and 
 also a " request" for the payment of money. As to the construction 
 of the latter word, in respect to the delivery or transfer oi goods, see 
 the evidence in the next precedent. 
 
 Indictmemtfor Forging a Warrant, Order, Avthority, or Reqv^tfcn- 
 the Delivery of Goods, etc. 
 
 The same as the last precedent, only substituting the words " war- 
 i-ant," " order," " authority," or " request," " for the delivery of goods" 
 (" any undertaking, warramt, order, authority, or request for the delivery 
 or transfer of any goods or chattels, or of any note, bill or other secu- 
 rity for the payment of money"), for the words " warrant, etc., for the 
 payment of money." 
 
 Felony. See the last precedent but one. — 24 db 25 Vict. e. 98, s. 23. 
 
 This offence is not triable at qua/rter sessions. 5 tfe 6 Vict. c. 38, s. 1 
 (ante, p. 104). 
 
 Evidence. 
 Prove the forgery and uttering, etc., as directed amte,p. 561 et seq. 
 An order " to deliver my work to bearer" (and which was explained 
 in evidence to mean an order to Groldsmiths' Hall to deliver certain 
 plate a silversmith had sent there to be marked), was holden to be 
 within the stat. 7 G. 2, c. 22, although it did not specify any parti- 
 cular articles. R. v. Jones, 1 Leaeh, 53. A pawnbroker's ticket is 
 a warrant for the delivery of goods. R. v. Morrison, Bell, 158 ; 28 
 L. J. (2f. C.) 210. At the London Docks, a person bringing a 
 " tasting order" from a merchant having wine there, is not allowed 
 to taste until the order has across it the signature of a clerk of the 
 company. The defendant uttered a tasting order with the mer- 
 chant's name forged to it, by presenting it to the company' clerk for 
 his signature across it, which the clerk refused. It was held to be in 
 this state a forged order for the delivery of goods, within the statute. 
 R. V. Illidge, 1 Den. C. C. 404; 2 C. <& K. 871. A request for the 
 delivery of goods need not be addressed to any one ; R. v. Carney, 
 I Mood. C. C. 351 : R. v. Cullm, Id. 300: R. v. James, 8 C. & P. 
 292 : R. V. Pulbrooh, 9 C. cfe P. 37 ; nor need it be signed bjr a 
 person who can compel a performance of it, or who has any authority 
 
Forgery. 587 
 
 over or interest in the goods. R. v. Thomas, 2 Mood, C. C. 16. 
 See R. V. Thorn, 2 Mood. C. C. 210 ; G. & Mar. 206 (ante, p. 583). 
 Where a forged writing was, " Mr. Brooks, let the bearer, W. Turton, 
 have, for J. Eoe, four yards of Irish linen and a waistcoat: John 
 Eoe ;" and the prisoner was indicted for obtaining the goods under 
 false pretences— rawBion, J., held that the uttering of such a note 
 was a felony under the repealed statute 1 W. 4, c. 66, «. 10, and 
 directed an acquittal. R. v. Evams, 5 C. <& P. 553 ; but see now 
 14c6 15 Vict. c. 100, s. 12, ante, p. 164. Where the prisoner repre- 
 sented that M. C. was dead, and had left him 50Z. or 60Z., which was 
 in the hands of A. D., and that he wanted mourning, and brought a 
 forged paper purporting to be signed by A. D., containing the fol- 
 lowing : " Please let W. T. have such things as he wants for the pur- 
 pose ; I have got the amount of 27Z. for M. C. in my keeping these 
 many years" — this was held to be a forged request within the statute. 
 R. V. Thomas, 1 C. & P. 851. So a paper in the following form was 
 held to be a request for the delivery of goods, though not addressed 
 to any one : — "Aug. 3, '39. One 16-in. helmet scoop ; one 4 qt. kettle. 
 Jas. Hayward." R. v. Pulbrook, °i C. & P. 37. So, also, a paper as 
 follows : " Please let the lad have a hat, and I will answer for tlie 
 money. B. B." R. v. White, Id. 282. And it is not the less a 
 forged request for the delivery of goods, because it may also be a 
 forged undertaking for the payment of money. Id. Nor will it 
 make any difference, that the defendant alone was looked' to for 
 payment. R. v. Thomas, 2 Mood. C. C. 16. Where the forged 
 request was addressed to a woman in her maiden name, but she had 
 married before the date of it, an indictment charging the intent to 
 be to defraud her husband was held good. R. v. Carter,,, 1 C. <& P~ 
 134. 
 
 Indictment for Forging a Receipt. 
 
 Commencement as a/nte, p. 559] — a certain acquittance and receipt 
 for money (" any accotmtahle receipt, acquittamce, or receipt for money 
 or for goods, or for any note, bill, or other security for the payment of 
 money, or amy indorsement on or assignment of any such accountable 
 receipt"), with intent thereby then to defraud ; against the form [os 
 ante, p. 347]. (ind Coiimt.) And the jurors aforesaid, upon their 
 oath aforesaid, do farther present, that the said J. S. afterwards, to 
 wit, on the day and year aforesaid, feloniously did offer, utter, dis- 
 pose of, and put off, a certain other forged acquittance, and receipt 
 for money, with intent thereby then to defraud (he the said J. S., at 
 the time he so offered, uttered, disposed of, and put off the said last- 
 mentioned forged acquittance arid receipt for money as aforesaid, 
 then and there well knowing the same to be forged) ; against the 
 form [as ante, p. 347] . 
 
 Felony. See the last precedent but two. — 24 S 25 Vict. c. 98, s. 23. 
 
 This offence is not triable at quarter sessions. 5 tfe 6 Vict. c. 38, «. 1 
 (ante, p. 104). 
 
 Evidence. 
 
 Prove the forging and uttering, etc., as directed amte, p. 561 et seq. 
 
 A receipt for bank-notes was holden not to be an acquittance or 
 
 receipt for money or goods within the meaning of the stat. 2 G. 2, 
 
 c. 25 ; but that statute did not contain the words " note, bill, or other 
 
588 Forgery. 
 
 seciirity," wMch are in the present statute. R. v. Harrison, 1 Leach, 
 180 ; 2 East, P. C. 926. So a scrip receipt, in which a blank was 
 left for the subscriber's name, was holden not to be a receipt within 
 the statute ; E. v. Lymi, 2 Leach, 397 ; and see Id. 808, etc. ; but it 
 would have been otherwise, if the blank had been filled up. So a 
 memorandum, importing that A. B. had paid to C. D. a sum of money, 
 but importing no acknowledgment from C. D., of his having received 
 it, was holden not to be a receipt within that statute, which however 
 did not contain the words " accountable receipt." R. v. Harvey, R, 
 & R. 227. A scrip certificate of a railway company is not a receipt, 
 or a receipt and acquittance, within this statute. R. v. West, 1 Den. 
 258 ; 2 C.& K. 496. A pawnbroker's ticket or duplicate, given in 
 tlie form prescribed by 39 & 40 G. 3, c. 99, s. 6, is an accountable re- 
 ceipt for goods within this section. R. v. Fitchie, Dears. & B. 175; 
 26 L. J. (M. C.) 90. A turnpike toll-gate ticket is a receipt for 
 money within this section. R. v. Fitch, R. v. Howley, L. & G 159. 
 The prisoner was indicted for forging and uttering a receipt on an 
 order for the payment of money, which appeared to be thus : — " Re- 
 ceived, for E. Aikman, Gr. Arscott" (his own name being G. Arscott), 
 written on the back of a bill of exchange payable at a banker's; 
 Littledale, J., Vaughcm, J., and Bolland, B., held that the evidence 
 did not support the indictment, and directed an acquittal. R. v. 
 Arscott, 6 C. (& P. 408. Where it was shown to be the custom of 
 bankets to give receipts on the deposit of money in the following 
 form : — " Received of A. B. 851. to his credit. This receipt not 
 transferable ;" and to repay the same, with interest, on the return of 
 the receipt with a name written on it ; it was held that the forging 
 the name of A. B., and receiving the money due, on its return, was a 
 forging and uttering of an acquittance for the 851. and interest. ■ M. 
 V. Atkinson, 2 Mood. C. C. 215 ; C & Mar. 325, A receipt signed 
 by the captain of a detachment, on the authority of which money is 
 received from an army agent, on account of the monthly subsistence 
 of such detachment, was held to be properly described as a receipt for 
 money, although it appeared that such instruments were frequently 
 cashed upon indorsement by tradesmen in the neighbourhood of the 
 place where the regiment was stationed, and the amount aftei-wards 
 received by them of the army agent. R. v. Rice, 6 C. d; P. 634 : R. 
 V. Hope, 1 Mood. C. C. 414. Where a high constable had issued his 
 precept for the payment of a county rate for a certain amount, and, 
 having received it, wrote a receipt at the foot, and the prisoner, who 
 had collected the rate, afterwards fi:audulently altered the precept, by 
 adding a figure in the amount (viz. changing 5s. to 15«.), and claimed 
 to be allowed that larger amount in the account, this was held to be 
 a forgery in the receipt. R. v. Vaughan, 8 C. & P. 276. And see R. 
 v. Griffiths, Dears. & B. 548 ; 27 L. J. {M. C.) 205. The prisoner 
 who was a rate collector received money from the prosecutor on 
 account of a rate for which he gave a receipt. After he had ceased 
 to be a collector he called on the prosecutor for the balance, which 
 the prosecutor paid to iim, and for a receipt the prisoner altered the 
 figures in the former receipt which then appeared as a receipt for 
 the entire rate. Pigott, B., and Martin, B., doubted whether these 
 facts amounted to a forgery of a receipt. R. v. Sargent, 10 Cox, 161. 
 It was the practice of the treasurer of the county of S., when an order 
 had been made on him for the payment of the expenses of a prose- 
 cution, to pay the whole amount to the attorney for the prosecution 
 or his clerk, and to require the signature of every person named in 
 
Fotgery. 589 
 
 the order to be written on the back of it, and opposite to each name 
 the sum ordered to be paid to each person respectively :— it was held, 
 that such a signature was not a receipt, the forging of which is an 
 offence against the statute, but was merely an authority to the trea- 
 surer to pay the amount. R. v. Cooper, 2 C. & K. 586. A friendly 
 society had branches in various towns. A member belonging to one 
 branch could not be received in another branch as a clearance 
 member without a document called a " clearance," certifying that he 
 had paid all the demands of the branch to which he originally be- 
 longed, and authorizing the other branch to receive him. The pri- 
 soner was secretary of the society, and had received from a member 
 all the fees due to his branch, and the member thereupon became 
 entitled to a clearance. The prisoner ought to have paid the money 
 over to the treasurer of the society, but did not do so, and sent, 
 nevertheless, a clearance to the member. To this clearance the 
 prisoner forged the signatures of two of the officers of the society, 
 without whose signatures the clearance would not have been ac- 
 cepted. It was held that this clearance was not an acquittance or 
 receipt for money. R. v. French, L. R., 1 C. C. R. 217 ; 39 L. J. 
 (M. C.) 68. If a person, with intent to defraud and to cause it to be 
 supposed contrary to the fact, that he has paid a certain sum into a 
 bank, make in a book, purporting to be a pass book of the bank, a 
 false entry, which denotes that the bank has received the sum, he is 
 guilty of forging an accountable receipt for money. R. v. Moody, 
 L. (& a 173 ; 31 L. J. (M. C.) 166 : R. v. Smith, L. & C. 168 ; 31 
 L. J. {M. C.) 164. 
 
 FOEGIN&, ETC., TRANSFERS OF STOCK, POWERS OF ATTORNEY, ETC. 
 
 Statute. 
 24 & 26 Vict. c. 98, s. 2.] — Whosoever shall forge or alter, or shall 
 offer, utter, dispose of, or put off, knowing the same to be forged or 
 altered, any transfer of any share or interest of or in any stock, an- 
 nuity, or other public fund which now is or hereafter may be trans- 
 ferable at the Bank of England or at the Bank of Ireland, or of or 
 in the capital stock of any body corporate, company or society, which 
 now is or hereafter may be established by chailer, or by, under, or 
 by virtue of any act of parliament, or shall forge or alter, or shall 
 offer, utter, dispose of, or put off, knowing the same to be forged or 
 altered, any power of attorney or other authority to transfer any 
 share or interest of or in any such stock, annuity, public fund, or 
 capital stock, or to receive any dividend or money payable in respect 
 of any such share or interest, or shall demand or endeavour to have 
 any such share or interest transferred, or to receive any dividend 
 or money payable in respect thereof, by virtue of any such forged or 
 altered power of attorney or other authority, knowing the same to 
 be forged or altered, with intent, in any of the cases aforesaid, to 
 defraud, shall be guilty of felony, and being convicted thereof shall 
 be liable, at the discretion of the court, to be kept in penal servitude 
 for life, or for any term not less than three years {now five years, 27 
 & 28 Vict. c. 47, s. 2, ante, p. 173], or to be imprisoned for any term 
 not exceeding two years, with or without hard labour, and with or 
 without solitary confinement. 
 
590 Forgery. 
 
 32 <& 33 Vict. c. 102, s. 19.]— For the purposes of the act of the 
 session of the 24th and 25th years of her Majesty's reign, c. 98, " to 
 consolidate and amend the statute law of England and Ireland re- 
 lating to indictable offences by forgery," all consolidated stock [». e. 
 all consolidated stock created by the Metropolitan Board of Works, 
 s. 4] shall be deemed to be capital stock of a body corporate -within 
 the meaning of that act. 
 
 Indictme.ntfor Forging and Uttering a Transfer of Stock. 
 
 Commencement as a/nte, p. 559] — feloniously did forge a transfer of 
 a certain share and interest in certain stock and annuities (" stock, 
 annuity, or other public fund"), to wit {state the amount and de- 
 scription of stoch], which said stock and annuities were then trans- 
 ferable at the Bank of England, and which said transfer then pur- 
 ported to be made by one J. N., with intent thereby then to defraud; 
 against the form [as ante, p. 347]. (ind Count) — did offer, utter, 
 dispose of, and put off, a certain other forged transfer of a certain 
 share and interest of and in certain other stock and annuities, to 
 
 wit, , which said last-mentioned stock and annuities were then 
 
 transferable at the Bank of England, and which said last-mentioned 
 transfer then purported to be made by one J. N., with intent thereby 
 then to defraud, he the said J. S., at the time he so uttered the said 
 last-mentioned forged transfer of the said share and annuity, well 
 knowing the same to be forged ; against the form \as ante, p. 3471 
 
 Felony : penal servitude for life or for not less than five [27 <& 28 
 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment not exceeding two 
 years, with or without hard labour, and with or without solitary con- 
 finement (such confinement not exceeding one month at anyone time, nor 
 three months in any one year, 24 tfc 25 Vict. c. 98, s. 53, amte,p.5bS). — 
 24 «6 25 Vict. c. 98, «. 2. As to requiring the offender to enter into 
 recognizances and find sureties for keeping the peace. Id. s. 51, ante, p. 
 558. 
 
 This offence is not triable at quarter sessions. 5 c6 6 Vict. c. 38, s. 1 
 (ante, p. 104). 
 
 Evidence. 
 
 Produce the transfer, and prove it to be forged; prove that the 
 prisoner forged it, and the intent as ante, p. 661 et seq. 
 
 To support the second count, prove the uttering of the forged 
 transfer, the intent, and the criminal knowledge as ante,p. 568 et seq. 
 
 Indictment for Forging and Uttering a Power of Attorney to sell out 
 Stock, etc. 
 
 Commencement as ante, p. 559] — feloniously did forge a certain 
 power of attorney to transfer a certain share and interest in certain 
 stock and annuities which then were transferable at the Bank of 
 England (" stoch, annuity, or other public fund, transferable at the 
 Bank of England, or at the Bank of Ireland" or " capital stock of 
 any body corporate, company, or society, established by charter or act 
 of parliament") which said forged power of attorney is as follows ; 
 that is to say [here set it out] with intent thereby then to defraud ; 
 against the form [as ante, p. 347]. {2nd Count) — feloniously did 
 
Forgery. 591 
 
 offer, utter, dispose of, and put off, a certain other forged power of 
 attorney, purporting to be a power of attorney to transfer a certain 
 share and interest of the said J. N. in certain stock and annuities 
 
 which then were transferable at the Bank of England, to wit, , 
 
 with intent thereby tlien to defraud, he the said J. S. then well 
 knowing the said last-mentioned power of attorney to be forged ; 
 against the form [as ante, p. 347]. (3r(i Couni)— feloniously did 
 demand and endeavour to have a certain share and interest of the said 
 J. N. in certain stock and annuities, which were then transferable at 
 
 the Bank of England, to wit, , transferred (" to have any such 
 
 sha/re, or interest transferred, or to receive any dividend or money 
 payable in respect thereof") in the books of the said Bank of England, 
 by virtue of a certain other forged power of attorney, purporting to 
 be a power of attorney to transfer the said share and interest of the 
 said J. N. in the said stock and annuities so transferable as aforesaid, 
 with intent thereby then to defraud, he the said J. S., at the time he 
 so demanded and endeavoured to have the said share and interest 
 transferred as aforesaid, well knowing the said last-mentioned power 
 of attorney to be forged ; against the form [as ante, p. 347] . 
 
 Such a power of attorney, before this statute, was holder, to 6e a deed 
 within the stat. 2 G. 2, c. 25, s. 1. R. v. Fauntleroy, 1 Mood. C. C. 52 ; 
 _ 2 Bing. 413. 
 
 Felony. — 24 & 25 Vict. e. 98, s. 2'. See the last precedent. 
 
 This offence is not triable at quarter sessions. 5 cfc 6 Vict. c. 38, s. 1 
 (ante, p. 104). 
 
 Evidence. 
 
 1st Count. — Produce the power of attorney ; prove it to be forged 
 by the prisoner ; show the stock to be transferable, and give evidence 
 of the intent, as ante, p. 567. 
 
 2nd Count. — Prove the power of attorney to have been forged, the 
 transferable nature of the stock, the uttering, as ante, p. 568, the 
 guilty knowledge, and the intent as stated in the indictment. 
 
 3rd Count. — Prove the power of attorney to have been forged, the 
 transferable nature of the stock, the guilty knowledge, the attempt 
 or endeavour by the prisoner as stated in the indictment, and the 
 intent. 
 
 MAKING FALSE ENTRIES OF STOCK, ETC. 
 
 Statute. 
 
 24 oB 25 Viet c. 98, s. 5.] —Whosoever shall wilfully make any 
 false entry in, or wilfully alter any word or figure in, any of the 
 books of account kept by the governor and company of the Bank of 
 England, or the governor and company of the Bank of Ireland, in 
 which books the accounts of the owners of any stock, annuities, or 
 other public funds, which now are or hereafter may be transferable at 
 the Bank of England or at the Bank of Ireland shall be entered and 
 kept, or shall in any manner wilfully falsify any of the accounts of 
 any of such owners in any of the said books, with intent, in any of the 
 cases aforesaid, to defraud; or shall wilfnlly make any transfer of any 
 share or interest of or in any stock, annuity, or other public fund 
 which now is or hereafter may be transferable at the Bank of Eng- 
 
692 Forgery. 
 
 land or at the Bank of Ireland, in the name of any person not heing 
 the true and lawful owner of such share or interest, with intent to 
 defraud, shall be guilty of felony, and being convicted thereof shall 
 be liable, at the discretion of the court, to be kept in penal servitude 
 for life, or for any term not less than three years [now f,ve yean, 27 
 <& 28 Vict. c. 47, s. 2, ante, p.' nil, '^^ *o ^^ imprisoned for any tenn 
 not exceeding two years, with or without hard labour, and with or 
 without solitary confinement. 
 
 32 & 33 Vict. c. 1D2, s. 20.] — Any person who, with intent to de- 
 fraud, makes any false entry in or alters any word or figure in any 
 of the said books for transfers [of consolidated stock created by the 
 Metropolitan Board of Works], or in any manner falsifies any of the 
 said books, or makes any transfer of any consolidated stock [created 
 by the Metropolitan Board of Works], in the name of any person 
 who is not the true owner thereof, shall be guilty of felony, and on 
 conviction shall be liable to penal servitude for any term not exceed- 
 ing fourteen years, or be imprisoned for any term not exceeding two 
 years, with or without hard labour. 
 
 Indictment for maiming False Entries of Stock. 
 
 Commencement as ante, p. 559] — feloniously did wilfully alter cer- • 
 tain words and figures (" any word or figure"), that is to say [here 
 set out the words and figures as they were before the alteration] in a 
 certain book of account kept by the governor and company of the 
 Bank of England, in which said book the accoimts of the owners of 
 certain stock, annuities, and other public funds, to wit, the [state the 
 stock], which were then transferable at the Bank of England, were 
 then kept and entered, by [set out the alteration, and the state of the 
 account or item when so altered^, with intent thereby then to defraud; 
 against the form [as ante, p. 347]. 
 
 Felony. See the last precedent but one. 24 (6 25 Vict. c. 98, s. 5. 
 
 This ofi^ence is not triable at quarter sessions. 5 <£ 6 Vict. c. 38, s. 1 
 (ante, p. 104). 
 
 Evidence. 
 
 Prove the alteration, as stated in the indictment, and the iiitent 
 as ante, p. 567. 
 
 Indictment for making a Transfer of Stock in the name of a Person 
 not the Owner. 
 
 Commencement as ante, p. 559] — feloniously did wilftilly make a 
 transfer of a certain share and interest of and in certain stock and 
 annuities (" stock, annuity, or other public fund") which were then 
 transferable at the Bank of England, to wit, the share and interest 
 
 of in the [state the amount and nature of the stock], in the 
 
 name of one C. D., he the said C. D. not being then the true and 
 lawful owner of the said share and interest of and in the said stock 
 and annuities, or any part thereof, with intent thereby then to de- 
 fraud; against the form [as ante, p. i^l]. 
 
 Felony. 24 <fc 25 Fici. c. 98, «. 5. See the last precedent but two. 
 
 This offence is not triable at quarter sessions. 6 c6 6 Vict. c. 38, «. 1 
 (ante, p. 104). 
 
Forgery. 593 
 
 Evidence. 
 Prove the transfer, as stated in the indictment, of transferable 
 stock ; prove that the person in whose name it was made was not 
 the true owner, and prove the intent as ante, p. 667. 
 
 POEGING AN ATTESTATION TO A POWER OP ATTORNEY, ETC. 
 
 Statute. 
 
 24 & 25 Vict. c. 98, s. 4.] — Whosoever shall forge any name, 
 handwi-iting, or signature, purporting to be the name, handwriting, 
 or signature of a witness attesting the execution of any power of 
 attorney or other authority to transfer any share or interest of or in 
 any such stock, annuity, public fiand, or capital stock, as is in either 
 of the last two preceding sections mentioned, or to receive any divi- 
 dend or money payable in respect of any such share or interest, or 
 shall offer, utter, dispose of, or put off any such power of attorney or 
 other authority, with any such forged name, handwriting or signature 
 thereon, knowing the same to be forged, shall be guilty of felony, 
 and being convicted thereof shall be liable, at the discretion of the 
 court, to be kept in penal servitude for any term not exceeding seven 
 years, and not less than three years [now five years, 27 d; 28 Vict. 
 c. 47, s. 2, ante, p. 173], or to be imprisoned for any term not ex- 
 ceeding two years, with or without hard labour, and with or without 
 solitary confinement. 
 
 Indictment. 
 
 Commencement as ante, p. 559] — feloniously did forge a certain 
 name, handwriting, and signature, as and purporting to be the name, 
 
 handwriting, and signature of one , as and purporting to be a 
 
 witness attesting the execution of a certain power of attorney to 
 transfer a certain share and interest of one J. N. in certain stock and 
 annuities which were then transferable at the Bank of England, to 
 
 wit, [here state the amovmt and nature of the stocTc] ; against 
 
 the form [as ante, p. 347]. (2nd Count, for uttering) — did utter, dis- 
 pose of, and put off a certain other forged power of attorney to 
 transfer a certain share and interest of the said J. N. in certain 
 stock and annuities which were then transferable at the Bank of 
 England, to wit, -^ — , with the name, handwriting, and signature 
 of the said forged on the said last-mentioned power of attor- 
 ney, as an attesting witness to the execution thereof, he the said 
 J. S., at the time he so offered, uttered, disposed of, and put off the 
 same, well knowing the said name and handwriting, purporting to 
 
 be the name and handwriting of the said thereon, as attesting 
 
 witness thereof as aforesaid, to be forged ; against the form [as ante, 
 p. 347]. 
 
 Felony : penal servitude for not more than seven nor less thamfive [27 
 & 28 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment not exceeding 
 two years, with or withont hard labour, and with or without solitary 
 confinement (such confinement not exceeding one month at any one time, 
 nor three months in any one year, 24 (& 25 Vict. c. 98, s. 53, ante, p. 
 558).— 24 <& 25 Vict. e. 98, s. 4. As to requiring the offender to enter 
 
594 Forgery. 
 
 into recognizances and find smeties for keeping the peace, Id. s. 51, 
 (amte, p. 558). 
 
 This offence is not triabh at quarter sessions. 5 <6 6 Vict. c. 38, s. 1 
 (ante, p. 104). 
 
 Evidence. 
 
 To support the first count, produce the power of attorney, and 
 prove it to be forged, and prove the transferable nature of the stock 
 mentioned in the indictment. 
 
 To support the second count, produce the power of attorney, and 
 prove it to have been forged ; prove the uttering as amie, p. 568, and 
 the guilty knowledge, as ante, p. 570. 
 
 CLERKS OF THE BANK, ETC., MAKING OUT FALSE DIVIDEND 
 WARRANTS. 
 
 Statute. 
 24 & 25 Vict. c. 98, s. 6.] — Whosoever, being a clerk, officer, or 
 servant of, or other person employed or intrusted by, the governor 
 and company of the Bank of England, or the governor and company 
 of the Bank of Ireland, shall knowingly make out or deliver any 
 dividend warrant, or warrant for payment of any annuity, interest 
 or money payable at the Bank of England Or Ireland, for a greater 
 or less amount than the person on whose hehalf such warrant shall 
 be made out is entitled to, with intent to defraud, shall be guilty of 
 felony, and being convicted thereof shall be liable, at the discretion 
 of the court, to be kept in penal servitude for any term not exceed- 
 ing seven years and not less than three years, \rwwfive years, 27 & 28 
 Vict. c. 47, s. 2, ante, p. 173,] or to be imprisoned for any term not 
 exceeding two years, with or without hard labour, and with or with- 
 out solitary confinement. 
 
 32 & 33 Vict. c. 102, s. 21.] — Any person who, being a clerk, 
 officer, or servant of, or employed by the board [i. e. 3ie Metro- 
 politan Board of Works], or the persons or body corporate, who 
 keep the books for transfer of consolidated stock {created by the 
 Metropolitan Board of Works], does, with intent to de&aud, make 
 out or deliver any stock certificate, dividend warrant, or document 
 for the payment of money in relation to any consolidated stock 
 [created by the Metropolitan Board of Works], for a greater or less 
 amount than the person on whose behalf such certificate, warrant, or 
 document is made out is entitled to, shall be guilty of felony, and 
 shall be liable, on conviction, to be kept in penal servitude for any 
 term not exceeding seven years, or to be imprisoned for any term 
 not exceeding two years, with or without hard labour. 
 
 Indictment. 
 Commencement as ante, p. 559]— then being a clerk ("clerk, bfficer, 
 or servant ") of the governor and company of the Bank of England, 
 and employed and intrusted by them, feloniously did knowingly 
 make out and deliver to one J. N. a certain dividend warrant for a 
 greater ("greater or less") amount than the said J. N. was then 
 entitled to, to wit, for the sum of five hundred poimds : whereas, in 
 truth and in fact the said J. N. was then entitled to the sum of one 
 
Forgery, 695 
 
 hundred pounds only ; with intent thereby then to defraud ; against 
 the form [as ante, p. 347], 
 Felony. 24 <& 25 Vict. c. 98, s. 6. See the last precedent. 
 
 Evidence. 
 Prove that J. S. was a clerk or servant of the Bank of England 
 (see ante, p. 238) ; produce the warrant, and prove it to be the pri- 
 soner's handwriting ; show the amount of stock to which J. N. was 
 entitled, and prove the intent as directed ante, p. 567. 
 
 FORGING, ETC., STOCK CERTIFICATES OR COUPONS. 
 
 Statute. 
 
 33 <& 34 Vict. c. 58, s. 3 — Forgery of Stock Certificates, etc.'] — 
 If any person forges or alters, or offers, utters, disposes of, or puts 
 off, knowing the same to be forged or altered, any stock certificate or 
 coupon, or any document purporting to be a stock certificate or 
 coupon, issued in pursuance of Part V. of The National Debt Act, 
 1870 [33 <& 34 Vict. c. 71] or of any former act, — or demands or en- 
 deavours to obtain or receive any share or interest of or in any stock 
 as defined in The National Debt Act, 1870, or to receive any dividend 
 or money payable in respect thereof, by virtue of any such forged 
 or altered certificate or .coupon, or document purporting as afore- 
 said, knowing the same to be forged or altered, with intent in any of 
 the cases aforesaid to defraud, he shall be guilty of felony, and being 
 convicted thereof shall be liable, at the discretion of the court, to 
 be kept in penal servitude for life, or for any term not less than five 
 years, or to be imprisoned for any term not exceeding two years, 
 with or without hard labour, and with or without solitary confine- 
 ment. 
 
 Sect. 6 — Forgery of Certificates of Transfer of Stochfrom England 
 to Ireland, etc.] — If any person forges or alters, or offers, utters, dis- 
 poses of, or puts off, knowing the same to be forged or altered, any 
 certificate or duplicate certificate required by Part VI. of The 
 National Debt Act, 1870 [33 & 34 Vict. c. 71], or by any former 
 like enactment, with intent in any of the cases aforesaid to defraud, 
 he shall be guilty of felony, and being convicted thereof shall be 
 liable, at the discretion of the court, to be kept in penal servitude 
 for life, or for any term not less than five years, or to be imprisoned 
 for any term not exceeding two years, with or without hard labour, 
 and with or without solitary confinement. 
 
 PURCHASING OE RECEIVING, ETC., FORGED BANK NOTES, ETC. 
 
 24 & 25 Vict. c. 98, s. 13.] — Whosoever, without lawful authority 
 or excuse (the proof whereof shall lie on the party accused) shall 
 purchase or receive from any other person, or have in his custody or 
 possession any forged bank-note, bank bill of exchange, or bank 
 
596 Forgery. 
 
 post-bill, or blank bank-note, blank bank bill of exchange, or blank 
 bank post-bUl, knowing the same to be forged, shall be guilty of 
 felony, and being convicted thereof shall be liable, at the discretion 
 of the court, to be kept in penal servitude for any term not exceeding 
 fourteen years, and not less than three years Inow five years, 21 d 28 
 Vict. e. 47, s. 2, ante, p. 173], or to be imprisoned for any term not 
 exceeding two yeai-s, with or without hard labour. 
 
 Indictment. 
 
 Central Criminal Court, to wit:— The jurors for our lady the Queen 
 upon their oath present, that J. S., on the first day of June, in the 
 
 year of our Lord , feloniously, and without lawful authority or 
 
 excuse, had in his custody and possession ("purchase or receive from 
 any person, or have in his custody or possession"") five forged bank- 
 notes ("any forged bank-note, bank bill of exchange, or bank post-bill, 
 or blank bank-note, blank bank bill of exchange, or blank bank post- 
 bill") for the payment of ten pounds each, the said J. S. then well 
 knowing the said several bank-notes and every of them to be forged; 
 against the form [as ante, p. 347]. 
 
 Felony : penal servitude for not more than fourteen and not less 
 than Jive [27 ir 28 Vict. c. 47, s. 2, ante, p. 173] years, or imprison- 
 ment, with or without hard labour, not exceeding two years. — 24 if 25 
 Vict. c. 98, s. 13. As to requiring the offender to enter into recoq- 
 nizances and find sureties for keeping the peace. Id, s, 51, ante, 
 p. 558. 
 
 F^dence. 
 Prove that the defendant had in his possession the bank-notes set 
 out in the indictment, or one of them; and prove the notes to be 
 forgeries, as directed ante, p. 561 et seq. The act says, " in his pos- 
 session or custody ;" which, by a subsequent section (45, ante, p. 655), 
 is interpreted to mean, in his personal custody or possession, or 
 knowingly and wilfully in the actual custody and possession of any 
 other person, or knowingly and wUfiilly in any dwelling-house or 
 other building, lodging, apartment, field, or other place, open or in- 
 closed, whether belonging to or occupied by himself or not, and 
 whether it be had for his own use or for the use or benefit of another. 
 See R. V. Rowley, R. & R. 110. These several species of custody or 
 possession are by the statute to be deemed and taken to be his cus- 
 tody and possession within the meaning of the act; and therefore it 
 is unnecessary to describe the custody and possession otherwise than 
 as in the above precedent. As to the defendant's knowledge that 
 the notes found upon him were bad, it can be proved by circum- 
 stantial evidence only. (See ante, p. 570.) After proof that the 
 defendant had in his possession forged notes, the proof of lawful 
 authority or excuse lies upon the defendant. 24 tfc 25 Vict. c. 98, 
 «. 13. 
 
 FORGING, ETC., REGISTERS OF BIRTHS, MARRIAGES, DEATHS, ETC. 
 
 Statute. 
 2i dk 25 Vict. c. 98, s. 36.] — Whosoever shall unlawfully destroy, 
 deface or injure, or cause or permit to be destroyed, defaced, or in- 
 jured, any register of births, baptisms, marriages, deaths, or burials 
 
Forgery. 697 
 
 which now is or hereafter shall be by law authorized or required to 
 be kept in England or Ireland, or any part of any such register, or 
 any certified copy of any such register, or any part thereof, or shall 
 forge or fraudulently alter in any such register any entry relating to 
 any birth, baptism, marriage, death, or burial, or any part of any such 
 register, or any certified copy of such register, or of any part thereof, 
 or shall knowingly and unlawfully insert, or cause or permit to be 
 inserted in any such register, or in any certified copy thereof, any 
 false entry of any matter relating to any birth, baptism, marriage, 
 death, or burial, or shall knowingly and unlawfully give any false 
 certificate relating to any birth, baptism, marriage, death, or burial, 
 or shall certify any writing to be a copy or extract from any such 
 register, knowing such writing, or the part of such register whereof 
 such copy or extract shall be so given, to be false in any material 
 particular, or shall forge or counterfeit the seal of or belonging to 
 any register office or burial board, or shall offer, utter, dispose of, 
 or put off, any such register, entry, certified copy, certificate, or seal, 
 knowing the same to be false, forged, or altered, or shall offer, utter, 
 dispose of, or put off, any copy of any entry in any such register, 
 knowing such entry to be false, forged, or altered, shall be guilty of 
 felony, and being convicted thereof shall be liable, at the discretion 
 of the court, to be kept in penal servitude for life, or for any term 
 not less than three years \now five years, 27 & 28 Vict. c. 47, s. 2, 
 ante, p. 173], or to be imprisoned for any term not exceeding two 
 years, with or without hard labom-, and with or without solitary con- 
 finement. 
 
 Seat. 37— ^Making False Entries in Copies of Registers sent to Regis- 
 trar.'] — Whosoever shall knowingly and wilfully insert, or cause or 
 permit to be inserted, in any copy of any register directed or re- 
 quired by law to be transmitted to any registrar or other officer any 
 false entry of any matter relating to any baptism, marriage, or burial, 
 or shall forge or alter, or shall offer, utter, dispose of, or put off, 
 knowing the same to be forged or altered, any copy of any register 
 so directed or required to be transmitted as aforesaid, or shall know- 
 ingly and wilfully sign or verify any copy of any register so directed 
 or required to be transmitted as aforesaid, which copy shall be false 
 in any part thereof, knowing the same to be false, or shall unlawfully 
 destroy, deface, or injure, or shall for any fraudulent purpose take 
 from its place of deposit, or conceal, any such copy of any register, 
 shall be guilty of felony, and bfiing convicted thereof shall be liable, 
 at the discretion of the court, to be kept in penal servitude for life, 
 or for any term not less than three years [now Jive years, 27 c6 28 
 Vict. c. 4:7, s. 2, ante, p. 173], or to be imprisoned for any term not 
 exceeding two years, with or without hard labour, and with or with- 
 out solitary confinement. 
 
 Indictment for making a False Entry in a Marriage Register. 
 
 Commencement as ante, p. 559] — feloniously, knowingly and unlaw- 
 fully did insert (" insert, or cause or permit to be inserted") in a cer- 
 tain register of marriages, which was then by law authorized to be 
 kept (" any register of births, baptisms, marriages, deaths or burials 
 which now is or hereafter shall be by law authorized or required to be 
 hept, etc., or any certified copy thereof"), a certain false entry of a 
 matter relating to a supposed marriage, and which said false entry 
 is as follows : that is to say [set it out verbatim,, with inuendoes if 
 
598 Forgery. 
 
 necessary to explain itl ; whereas in truth and in fact the said A. B. 
 was not married to the said C. D. at the said church, on the said 
 
 day of , as in the said entry is falsely alleged and stated ; 
 
 and whereas, in truth and in fact the said A. B. was not married to 
 the sa,id C. D., at the said church or elsewhere, at the time in the 
 said entry mentioned, or at any other time whatsoever ; against the 
 form [as amte, p. 347] (^Ttd Count for utteringy — feloniously did 
 knowingly and wilfully offer, utter, dispose of, and put off a copy of 
 a certain other false entry relating to a certain supposed marriage, 
 which said last-mentioned false entry was before then inserted in a 
 certain register of marriages by law authorized to be kept, and which 
 said last-mentioned false entry is as follows : that is to say [set it 
 oui] ; whereas in truth and in fact [as above']. And the jurors afore- 
 said, upon their oath aforesaid, do say that the said J. S., at the 
 time he so offered, uttered, disposed of, and put off the said copy 
 of the said last-mentioned false entry, well knew the said last-men- 
 tioned false entry to be false ; against the form [as ante, p. 3471. 
 See R. V. Sharpe, % C. & P. 436. 
 
 A count charging that the defendant ^^feloniously and vnlfuVy did 
 destroy; deface, and injure a parish register," is not had for duplicity: 
 and it is not necessa/ry to allege a scienter as to such a charge. B, v. 
 Bowen, 1 Den. 22 ; \ C. & E. 601. ' 
 
 Felomy : penal seroitude for life or for not less than Jive [27 S 28 
 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment not exceeding two 
 years, mth or without hard labour, and with or without solitary confirM- 
 ment (^such confinement not exceeding one month at any one time, nor 
 three Tnonths in any one year, 24 tfe 25 Vict. c. 98, «. 53, ante, p. 568). — 
 24 & 25 Vict. c. 98, s. 36. As to requiring the offender to enter into 
 recognisances and find sureties for keeping the peace. Id. s. 61, ante, 
 p. 658. 
 
 This offence is not triable at quarter sessions. 5 <& G Vict. c. 38, «. 1 
 (ante, p. 104). 
 
 As to the forgery of mamage licences or certificates, see 24 & 25 
 Vict. c. 98, s. 35. 
 
 The proviso in favour of officiating,, ministers mahing corrections of 
 accidental errors in registers, which was enacted by the 2lst section of 
 the 11 G. 4: & 1 W. 4, c. 66, remains in force. 
 
 Evidence. 
 
 Produce the register, prove it to be kept as stated in the indict- 
 ment, and prove the forgery or uttering as ante, pp. 561, 668, accord- 
 ing as the fact is alleged in the indictment. The court will take 
 judicial notice that a parish in the county of Stafford, or any other 
 English county is in England, and the indictment need not aver that 
 fact. R. V. Sharpe, % C. & P. 436. 
 
 It is not the less a " destroying, defacing, or injuring" of a register, 
 within the meaning of the statute, because the register, when pro- 
 duced in evidence, has the torn part pasted in, and is as legible as 
 before. R. v. Bowen, 1 Den. 22. As to the uttering, see R. v. Eey- 
 wood, 2C.&K. 352. 
 
 Where a false entry had been actually made in a register of births, 
 etc., on the information of the defendant, he was holden to be thereby 
 guilty of the felony mentioned in the 43rd section of the SS7 W.i, 
 c. 86 (re-enacted in the 24 <fc 25 Vict. c. 98, s. 36), and not merely of 
 the misdemeanor of making a false statement for the same purpose, 
 within the 41st section of that act. R. v. Mason, 2 C.&K. 622 ; 
 R. V. Dewitt, Id. 905. 
 
Forgery. 599 
 
 Indictment for Forgery at Common Law. 
 
 Middlesex, to wit: — The jurors for our lady the Queen upon their 
 oath, present, that J. S., on the first day of June, in the year of our 
 Lord , unlawfully, knowingly! *°d falsely did forge and counter- 
 feit a. certain writing, purporting to be ^describe the instrumenf], 
 with intent thereby then to defraud ; to the evil example of all 
 others in the like case. offending, and against the peace of our lady 
 the Queen, her crown and dignity. (2nd Count.} And the jurors 
 aforesaid, upon their oath aforesaid, do further present, that the said 
 J. S. afterwards, , to wit, on the day and year aforesaid, unlawfully, 
 falsely, and deceitfully did utter and publish as true a certain other 
 false, forged, and counterfeited writing, purporting to be [describe the 
 instrume/nf] with intent thereby then to defraud (he the said J. S. at 
 the said time he so uttered and published the said last-mentioned 
 false, forged, and counterfeited writing as aforesaid, well knowing 
 the same to be false, forged, and counterfeited), to the evil example 
 of all others in the like case offending, and against the peace of our 
 lady the Queen, her crown and dignity. 
 
 Misdemeanor at common law : punishable by fine or imprisonment, 
 or both. As to the punishment of misdemeanors at common law, see 
 ante. p. 174. 
 
 The forging and counterfeiting of any vjriting, or the uttering and 
 publishing it as true, knowing it to be forged and- counterfeited, with 
 a fraudulent intent, is a misdemeanor at common law, in all cases 
 where it has not been made felony by statute. See 2 East, P. C 861 : 
 R. V. Wilcox, B. if R. 50. Thus, counterfeiting a letter of credit. 
 Styles, 12; a bill of lading, 1 Salk. 342; a debtor's discharge, S. v. 
 Fawcett, 2 East, P. C. 862 ; a county court summons, M. v. Collier, 
 5 C. Sf P. 160; a magistrate's order to a gaoler to discharge a pri- 
 soner, as upon bail having been given, R. v. Harris, 1 Mood. C. C. 
 393; 6 C.Sf P. 129; a certificate qfthemaster of a ship that thede- 
 fendant had served on board the ship, ajid conducted himself in a 
 sober and orderly manner, the production of such certificate being 
 necessary to enable the defendant to undergo the voluntary examina- 
 tion at the Trinity Souse, as to his ability to act as a master, R. v. 
 Toshack, 1 Den. 492 ; a testimonial to character in order to obtain an 
 appointment as a schoolmaster, R. v. Sharman, Dears. 285 ; 23 L. J. 
 (M. G.) 5] ; a recommendation to a situation as a police constable, R. 
 V. Moah, Dears. ^ B. 550; 27 L. J. (M. C.) 204, and the like; see 
 2 East, P. C. 862, and the authorities there cited — are forgeries at 
 common law. 
 
 Forgery is not triable at quarter sessions. 5 4" 6 Yiet. c. 38, s. 1 
 (ante, p. W.i). 
 
 Evidemce. 
 
 Prove the forgery and uttering; as directed ante, pp. 561, 568 et seq., 
 except that it must be proved that the defendant uttered the instru- 
 ment as true ; to prove that he sold or disposed of it will not support 
 the indictment. It had also been held that the mere uttering as true 
 of a forged instrument, the forgery of which is indictable at common 
 law, was not^er se indictable, unless some fraud were actually com- 
 mitted thereby. R. v. BouU, 2 C. & K. 604 : but this decision is 
 expressly overruled by R. v. Sharman, Dears. 285 ; 23 L. J. (M. C.) 
 51, where it was laid down that it is an offence at common law to utter 
 as true a forged instrument, the forgery of which is an offence at 
 
600 Forgery. 
 
 common law. If the forgery be proved, it should seem to be suffi- 
 cient, for, notwithstanding some ancient authorities to the contrary, 
 it does not appear to be necessary that the fraud contemplated should 
 have been actually effected by the. forgery, to render it indictable at 
 common law ; the mere intent to defraud seems to be sufficient. 2 
 East, P. C. 861, 862. See R. v. Hodgsm, Dears. & B. 3; 25 L. J. 
 (M. C.) IS, ante, p. 567. 
 
 Where B., the prosecutor, made powders called B.'s Baking Pow- 
 ders, which he sold in packets wrapped up in printed papers, and 
 the defendant caused a great number of wrappers to be printed, so 
 nearly resembling B.'s as to deceive persons of ordinary observation, 
 and make them believe that they were B.'s, in which the defendant 
 inclosed powders of his own, which he fraudulently sold as B.'s 
 powders ; this was held not to be forgery, but obtaining money by 
 false pretences. B. v. Smith, Dears. (& B. 666; 27 L. J. {M. C.) 225: 
 see also B. v. Closs, ante, p. 565; but see now 25 & 26 Vict. c. 88 {The 
 Merchandise Marks Act, 1862), ss. 2, 3, 5. 
 
 Indictments for Forgery in other Cases. 
 
 With the assistance of the precedents already given, which are 
 those most generally required in practice, indictments may readily 
 be framed upon any of the statutes on the subject of forgery, atten- 
 tion being paid to the operative words in the statute creating the 
 offence. 
 
 The following is, it is believed, a tolerably full list of the statutes 
 relating to forgery and indictable offences connected therewith, which 
 have not already been mentioned under the foregoing precedents, 
 and do not find a place in other parts of this work. It is necessary, 
 however, to premise that, by the stat. 24 & 25 Vict. c. 98, «. 48 (ante, 
 p. 557), in all cases of forgery, etc., in which, by any act then in 
 force, the punishment of death might, -before the passing of 1 W. 4, 
 c. 66, have been inflicted, and which are not punishable under any of 
 the other provisions of 24 & 25 Vict. c. 98, the offender shall be liable 
 to penal servitude for life or for any term not less than three years 
 \now five years, 27 & 28 Vict. c. 47, s. 2, ante, p. 173], or to impri- 
 sonment for any term not exceeding two years, with or without hard 
 labour, and with or without solitary confinement. By s. 47 of the 
 same act, whosoever shall be convicted of any offence which shall 
 have been subjected by any act to the same penalties as are imposed 
 by the 5 Eliz. c. 14, for any of the offences first enumerated in that 
 statute, shall be guilty of felony, punishable with penal servitude, 
 for any term not exceeding fourteen and not less than three years 
 [now five years, 27 cS; 28 Vict. c. 47, s. 2, ante, p. 173], or by imprison- 
 ment for any term not exceeding two years, with or without hard 
 labour, and with or without solitary confinement. It is also neces- 
 sary to mention, that by s. 39 {ante, p. 555) of the same act (24 (§ 25 
 Vict. c. 98), where any person is made punishable for forging, etc. 
 any instrument or writing designated by a special name or descrip- 
 tion, which, however designated, is in law a will, testament, codicil, 
 or testamentary writing, or a deed or bond, or a biU of exchange or 
 promissory note for the payment of money, or an indorsement or 
 assignment of a bill or note, or an acceptance of a bill of exchange, 
 or an undertaking, warrant, order, authority, or request for the pay- 
 
Forgery. 601 
 
 ment of money, within the meaning of that act, such person may be 
 indicted under that act and punished accordingly. With these ob- 
 servations, it has been thought best, in order to avoid repetition, to 
 enumerate the existing statutes, with the punishments in the terms 
 of the statutes respectively. 
 
 1. As to records and proceedings of courts of justice. — Forging 
 any record, writ, return, panel, process, rule, order, warrant, inter- 
 rogatoiy, deposition, affidavit, affirmation, recognizance, cognovit 
 actionem, or warrant of attorney, or any original document whatso- 
 ever of or belonging to any court of record, or any bill, petition, 
 process, notice, rule, answer,, pleading, interrogatory, deposition, affi- 
 davit, affirmation, report, order, or decree, or any original document 
 whatsoever of or belonging to any court of equity or court of admi- 
 ralty in England or Ireland, or any document or writing, or any copy 
 of any document or writing, used or intended to be used as evidence 
 in any court in this section mentioned ; felony, penal servitude for 
 not exceeding seven years and not less than five [27 & 28 Vict. c. 47, 
 s. 2, ante, p. 173] years, or imprisonment not exceeding two years. 
 24 & 25 Vict. c. 98, o. 27. The clerk of any court, or other officer 
 having the custody of the records of any court, or being the deputy 
 of any such clerk or officer, uttering any false copy or certificate 
 of any record, knowing the same to be false ; and any other person 
 signing or certifying any copy or certificate of any record as such 
 clerk, officer, or deputy, or forging any copy or certificate of any 
 record, or uttering any copy or certificate of any record having thereon 
 any false or forged name, handwriting, or signature, knowing the same 
 to be false or forged ; or forging the seal of any court of record, or 
 forging or fraudulently altering any process of any court other than 
 such courts as in the last preceding section mentioned ; or serving or 
 enforcing any forged process of any court whatsoever, knowing the 
 same to be forged ; or delivering to any person any paper falsely pur- 
 porting to be any such process, or a copy thereof, or to be any judg- 
 ment, decree, or order of any court of law or equity, or a copy thereof, 
 knowing the same to be false ; or acting or professing to act under 
 any such false process, knowing the same to be false ; felony, penal 
 servitude for not exceeding seven years, and not less than five [27 c6 
 28 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment not exceed- 
 ing two years. Id. s. 28. Forging any instrument, whether written 
 or printed, or partly written and partly printed, which is or shall be 
 made evidence by any act passed or to be passed, and for which of- 
 fence no punishment is herein provided ; felony, penal servitude for 
 not exceeding seven years and not less than five [27 S 28 Vict. c. 47, 
 s.2,ante,p. 173] yeai'S, or imprisonment not exceeding two years. Id. 
 s. 29. Forging court rolls or copies thereof, relating to any copyhold 
 or customary estate ; felony, penal servitude for life or for not less 
 than five [27 S 28 Vict. u. 47, s. 2, cmte, p. 173] years, or imprison- 
 ment not exceeding two years. Id. s. 30. Forging any memorial, 
 affidavit, affirmation, entry, certificate, indorsement, document, or 
 writing, made or issued under the provisions of any act passed or 
 hereafter to be passed for or relating to the registry of deeds ; or 
 forging or counterfeiting the seal of any office for the registry of 
 deeds, or any stamp or impression of any such seal ; or forging the 
 signature of any person to any such memorial, etc., which shall be 
 required or directed to be signed by or by virtue of any act passed 
 or to be passed ; felony, penal servitude not exceeding fourteen years 
 and not less than five [27 S 28 Vict. c. 47, s. 2, ante, p. 173] years, or 
 
 W. DD 
 
602 Forgery. 
 
 imprisonment not exceeding two years. Id.s.ZX. Forging or assist- 
 ing in forging in the course of any proceeding before the court of 
 chancery under " The Declaration of Title Act, 1862," any certificate 
 or other document relating to land or to the title thereof; felony, 
 penal servitude for life or for not less than five [27 d 28 Vict. c. 47, 
 s. 2, ante, p. 173] years, or imprisonment not exceeding two years. 
 25 <& 26 Vict. c. 67, «. 45. Forging any summons, conviction, 
 order, or waiTant of any justice of the peace, or any recognizance 
 purporting to have been entered into before any justice of the 
 peace, or other ofiBcer authorized to take the same, or any exami- 
 nation, deposition, aflSdavit, affirmation, or solemn declaration, taken 
 or made before any justice of the peace ; felony, penal servitude 
 for five [27 & 28 Vict. c. 47, s. 2, ante, p. 173] years, or im- 
 prisonment not exceeding two years. 24 d; 25 Vict. c. 98, s. 32. 
 Forging the seal, stamp, or signature of any certificate, official or 
 public document, or document or proceeding of any corporation or 
 joint-stock or other company, or of any certified copy of any docu- 
 ment, bye-law, entry in any register or other book, or other proceed- 
 ing, receivable in evidence, or tendering in evidence any such certifi- 
 cate, etc , with a false or counterfeit seal, stamp, or signature thereto, 
 knowing the same to be false and counterfeit : or forging the signa- 
 ture of any judge [of any of the superior courts of equity or common 
 law] to any order, decree, certificate, or other judicial or official do- 
 cument, or tendering in evidence any order, etc., with a false or 
 counterfeit signature of any such judge thereto, knowing the same to 
 be false or counterfeit : or printing any copy of any private act, or 
 of the journals of either house of parliament, which shall falsely 
 purport to have been printed by the printers to the crown or to 
 either house of parliament, or tendering in evidence any such copy, 
 knowing that the same was not printed by the person by whom it 
 purports to have been printed ; felony, transportation for seven years, 
 or imprisonment for not more than three years, nor less than one 
 year, with hard labour. 8 <fe 9 Vict. c. 113, s. 4. Printing any copy 
 of any proclamation, order, or regulation which falsely purports to 
 have been printed by the government printer, or to be printed under 
 the authority of the legislature of any British colony or possession, 
 or tendering in evidence any copy of any proclamation, order, or 
 regulation which falsely purports to have been printed as aforesaid, 
 knowing that the same was not so printed, or, forging or tendering 
 in evidence, knowing the same to have been forged, any certificate 
 by the 31 S 32 Vict. c. 37, authorized to be annexed to a copy of or 
 extract from any proclamation, order, or regulation ; felony, penal 
 servitude for .such term as is prescribed by the Penal Servitude Act, 
 1864 [27 (& 28 Vict. c. 47, s. 2, ante, p. 173], as the least term to 
 which an offender can be sentenced to penal servitude, or imprison- 
 ment not exceeding two years, with or without hard labour. 31 <& 
 32 Vict. c. 37, s. 4. Forging the signature or official seal of any 
 commissioner, judge, etc., or other person authorized to administer 
 oaths under the " Admiralty Court Act, 1854 ;" felony, punishable as 
 under 8^9 Vict. c. 113, «. 4; 17 c6 18 Vict. c. 78, s. 10. Certifying 
 as true any false copy of or extract from any of the records in the 
 public record office ; felony, transportation for life or not less than 
 seven years, or imprisonment not exceeding four years. 1 Vict, 
 c. 94, ss. 19, 20. Uttering a false certificate of a previous conviction ; 
 felony, transportation or imprisonment, and whipping. 7 (& S G.i, 
 c. 28, s. 11. Forging or uttering a forged certificate, etc. of a chief 
 justice, clerk of assize, or clerk of the peace, given under 11 <& 12 
 
Forgery. 603 
 
 Vict. c. 78 ; felony, transportation for any term not exceeding ten 
 years, or imprisonment not exceeding three years. Id. a. 6 (cmte, p. 
 184). Forging the seal, stamp, or signature of any document in this 
 act mentioned or referred to (i. e. foreign and colonial acts of state, 
 and judgments, decrees, orders, and other judicial proceedings of 
 any court of justice in any foreign state or British colony, and affi- 
 davits, pleadings, and other legal documents filed or deposited in any 
 such court, s. 7 ; apothecaries' certificates, o. 8 ; registers of British 
 vessels, and certificates of registry, s. 12; certified copies of records 
 of a previous conviction or acquittal, s. 13 ; examined or certified 
 copies of public documents admissible in evidence on production 
 from the proper custody, s. 14) ; felony, transportation for seven 
 years, or imprisonment not exceeding three years. 14 o6 15 Vict. 
 c. 99, s. 17. Forging the seal or any process of the county court, or 
 serving or enforcing any such forged process, knowing it to be forged, 
 or delivering or causing to be delivered to any person any paper 
 falsely purporting to be any summons or other process of the said 
 court, or acting or professing to act under any false colour or pre- 
 tence of the process of the said court; felony, 9 c6 10 Vict. c. 95, s. 57. 
 See R. v. Evans, Dears. & B. 236; 26 L. J. {M. C.) 92 : R. v. Castle, 
 Dears. & B. 363 ; 27 L. J. {M. C.) 70: R. v. Richmond, Bell, 142 : 
 and see 24t & 25 Vict. c. 98, s. 28, supra. 
 
 2. As to the revenue, etc. — Forging debentures or certificates 
 for payment or return of money required by statutes relating to 
 the customs or excise; felony, death; 52 G. 3, c. 143, s. 10; or the 
 name or handwriting of any receiver- general or comptroller-general 
 of the customs or their agents, to any draft, etc., for receiving 
 money at the Bank of England on account of the receiver-general; 
 felony, transportation for life. 16 & 17 Vict. c. 107, s. 28. Forg^ 
 ing any debenture issued under any lawful authority whatever, either 
 within her Majesty's dominions or elsewhere ; felony, penal ser- 
 vitude not exceeding fourteen and not less than five [27 <& 28 Vict, 
 c. 47, s. 2. ante, p. 173] years, or imprisonment not exceeding two 
 years. 24 <S) 25 Vict. c. 98, s. 26. Forging East India bonds; 
 felony, penal servitude for life or not less than five [27 & 28 
 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment not exceeding 
 two years. Jd. s. 7. Forging East India debentures; felony, penal 
 servitude for life or not less than five years, or imprisonment not 
 exceeding two years. 32 <& 33 Vict. c. 106, s. 13. Forging India 
 stock certificate or coupon; felony, penal servitude for life or not 
 less than five [27 d; 28 Vict. c. 47, s. 2, orofe, p. 173] years, or im- 
 prisonment not exceeding two years. 26 d 27 Vict. c. 73, s. 13. 
 Forging any certificate or duplicate certificate required by 25 Vict, 
 c.l (which provides for the transfer of India stock); felony. 25 
 Vict. c. 7, s. 14. Forging excise perniits; misdemeanor, transporta- 
 tion for seven years, or fine and imprisonment. 2 W. 4, c. 16, ss. 3, 4. 
 
 Offences relating to the forgery, etc. of the stamps used for the 
 purposes of the inland revenue are provided for by 33 & 34 Vict. 
 c. 98, s. 18, which enacts, that " any person who does, or causes or 
 procures to be done, or knowingly aids, abets, or assists in doing any 
 of the acts following, that is to say, — 1. Forging a die or stamp ; -l. 
 Making an impression upon any material with a forged die; 3. 
 Fraudulently cutting, tearing, or in any way removing from any 
 material any stamp, with the intent that any use should be made of 
 such stamp or of any part thereof; 4. Fraudulently mutilating any 
 stamp, with intent that any use should be made of any part of such 
 
 DD2 
 
604' Forgery. 
 
 stamp ; 5. Fraudulently fixing or placing upon any material or upon 
 any stamp, any stamp or part of a stamp ■which, Tvliether fraudulently 
 or not, has been cut, torn, or in any way removed from any other 
 material, or out of or from any other stamp ; 6. Fraudulently erasing 
 or otherwise either really or apparently removing from any stamped 
 material any name, sum, date, or other matter or thing whatsoever 
 thereon written, with the intent that any use should be made of the 
 stamp upon such material ; 7. Knowingly selling or exposing for 
 sale or uttering or using any forged stamp; 8. Knowingly, and with- 
 out lawful excuse (the proof of which lawful excuse lies on the person 
 accused) having in possession any forged die or stamp, or any stamp 
 or part of a stamp which has been fraudulently cut, "torn, or other- 
 wise removed from any material, or any stamp which has been 
 fraudulently mutilated, or any stamped material out of which any 
 name, sum, date, or other matter or thing has been fraudulently 
 erased or otherwise either really or apparently removed, is guilty of 
 felony, and upon being convicted shall be liable to be subjected to 
 penal servitude for the term of his natural life or for any term not 
 less than five years, or to be imprisoned for any term not exceeding 
 three years." And by s. 22 of the same statute, "if any forged 
 stamps are found in the possession of any person appointed to sell 
 and distribute stamps, or being or having been licensed to deal in 
 stamps, such person shall be deemed and taken, unless the contraiy 
 is satisfactorily proved, to have had the same in his possession 
 knowing them to be forged, and with intent to sell, use, or utter 
 them, and shall be liable to all penalties and punishments imposed 
 or inflicted by law upon persons selling, using, uttering, or having in 
 possession forged stamps knowing the same to be forged." By s. 2 
 of the same statute, it is provided that in the construction and for 
 the purposes of that act the following words and terms have the 
 meanings hereby assigned to them, unless it is otherwise provided, 
 or there be something in the context repugnant thereto: — "The 
 commissioners" means the commissioners of inland revenue : " Ma- 
 terial" means and includes every sort of material upon which words 
 or figures can be -expressed : " Write," " written," and " writing," in- 
 clude every mode in which words or figures can be expressed upon 
 material : " Die" means and includes any plate, type, tool, or imple- 
 ment whatever used under the direction of the commissioners for 
 expressing or denoting any duty, or the fact that any duty or penalty 
 has been paid, or that an instrument is duly stamped, or is not 
 chargeable with any duty, and also any part of any such plate, type, 
 tool, or implement : " Forge," " forged," mean and include counter- 
 feit, counterfeited : " Stamp," " stamps," mean as well stamps im- 
 pressed by means of a die as adhesive stamps : " Stamped" is appli- 
 cable as well to instruments and material impressed with stamps by 
 means of a die, as to instruments and material having adhesive 
 stamps affixed thereto. 
 
 Forging stamps used in pursuance of" The Local Stamp Act, 1869;" 
 felony, penal servitude for not less than five years, or imprisonment 
 for not exceeding two years. 32 <& 33 Vict. c. 49, s. 8. Forging any 
 certificate of a justice of the peace under " The Local Stamp Act, 
 1869;" felony, penal servitude for not less than five years, or impri- 
 sonment for not exceeding two years. Id. Forging registers, certi- 
 ficates, transfers of annuities, etc., granted by the commissioners for 
 the reduction of the national debt; felony, death. 10 G. 4, e. 24, s. 4L 
 See also 2 d S W. i, c. 59, s. 19. Forging the handwriting of the 
 
Forgery. 605 
 
 receiver-general of the post-office, or his agents, to any draft, etc. 
 for money, or any such draft, etc.; felony, transportation for life or 
 not less than seven years, or imprisonment for not more than four 
 years. 7 W. i <& I Vict. c. 36, ss. 33, 41. Forging or fraudulently 
 using plates or dies used for marking postage; felony, transporta- 
 tion for life or not less than seven years, or imprisonment for not 
 more than four nor less than two years. 3 cS> i Vict. c. 96, s. 22; 
 see also ss. 29, 30. Forging a hawker's licence; three hundred 
 pounds fine. 60 G. 3, c. 41, s. 18. 
 
 3. As to public offices. — Forging the name of the registrar of the 
 High Court of Admiralty, or the Bank receipts for suitor's money; 
 felony. 53 G. 3, c. 151, s. 12. Forging any certificate, etc., made, 
 or purporting or appearing to be made, by the accountant-general, 
 or any other officer of the Court of Chancery in England or Ireland, 
 or by any judge or officer of the Landed Estates Court in Ireland, 
 or by any officer of any court in England or Ireland, or by any 
 cashier or other officer or clerk of the Bank of England or Ireland, 
 or the name, handwriting or signature of any such accountant-general, 
 judge, cashier, officer or clerk as aforesaid; felony, penal servitude 
 not exceeding fourteen and not less than five [27 c6 28 Vict. c. 47, 
 s. 2, ante, p. 173] years, or imprisonment not exceeding two years. 
 24 (& 26 Vict. c. 98, s. 33; and see 30 d 31 Vict. c. 87, s. 12. Forging 
 the hand of the accountant-general of the Exchequer; felony, death, 
 1 G. 3, c. 35. Forging the handwriting of the receiver-general of 
 the Excise, or the excise comptroller of cash, or other person duly 
 authorized, to any draft, etc., upon the Bank of England; felony, 
 death. 7 c6 8 (t. 4, c. 63, s. 66. Forging the handwriting of the re- 
 ceiver-general of the stamp duties, or of his clerk, or of the commis- 
 sioners of stamps, to any draft, etc., upon the Bank; felony, death. 
 46 G. 3, c. 76, s. 9. Forging the name or handwriting of the lords 
 of the Treasury, or Commissioners of Woods and Forests, to any 
 power of attorney for the sale of stock, draft, etc.; felony. 10 G. 4, 
 c. 60, s. 124. Forging any contracts, certificates, receipts, etc., re- 
 lating to the redemption of the land-tax; felony, death. 62 G. 3, c. 143, 
 s. 6. Forging any declaration, warrant, order, or other instrument, 
 or any affidavit or affirmation required to be made by the commis- 
 sioners for the reduction of the national debt, or any certificate or 
 order of their officers, etc.; felony, death. 2 i& 3 W. 4, u. 69, s. 19. 
 Forging any certificate of a receipt given to or by the commissioners 
 for relief to the West India Islands ; 2 db 3 W. A, c. 126, s. 64; or 
 to or by the commissioners for relief to the Island of Dominica; 
 5 (& 6 W. i, c. 61, «. 6; felony, death. 
 
 4. As to officers in the navy and army. — Any person, in order to 
 sustain any claim to any pay, wages, allotment, prize money, bounty 
 money, grant, or other allowance in the nature thereof, half-pay 
 pension, or allowance from the compassionate fund of the navy, or 
 other money payable by the Admiralty, or to any effects or money 
 in charge of the Admiralty, — or in order to procure any person to be 
 admitted a pensioner as the widow of an officer of the navy, — doing 
 any of the following things, namely,— offisring or uttering to any 
 person in the service of the Crown or of the Admiralty any false 
 affidavit, knowing the same to be false, or making or subscribing or 
 offering or uttering as aforesaid any false written petition, applica- 
 tion, statement, answer, certificate, or voucher, or other false writing, 
 knowing the same to be false; misdemeanor, penal servitude for any 
 term nut exceeding five years, or imprisonment ior any term not ex- 
 
606 Forgery. 
 
 ceeding two years, with or without hard labour, and with or without 
 solitary confinement. 28 & 29 Vict c. 124, «. 6. (These offences 
 are also punishable on summary conviction before a justice, by im- 
 prisonment for any term not exceeding six months, with or without 
 hard labour, ib. Sections 40 to 42 and 50 to 63 of the 24 <S; 25 Vict. 
 c. 98, are incorporated with the 28 dt 29 Viet. e. 124, by s. 7 of the 
 last-mentioned act.) Forging the name or handwriting of any officer 
 soldier, etc. in the army, or of any officer or serjeant at Chelsea 
 Hospital, as to the payment of pensions, wages, pay, etc., or any 
 letter of attorney, bill, ticket, order, certificate, voucher, receipt, 
 will, etc., concerning the payment or obtaining of any pension, etc.- 
 felony, transportation. 7 G. 4, c. 16, «. 38. See R. v. Pringle, 2 
 Mood. C. a 127; 9 C. S P. 408. See also 2 W. 4, c. 53, s. 49, as to 
 forgery of names of officers, etc. of the army entitled to prize-money, 
 etc. 
 
 6. As to public trade. — Forgery of trade marks ; misdemeanor, 
 imprisonment for not more than two years, with or without hard 
 labour, or fine, or imprisonment with or without hard labour and fine, 
 and imprisonment until the fine (if any) shall have been paid and 
 satisfied. 25 <£ 26 Vict. c. 88 (Merchandise Marks Act, 1862), ss. 2, 
 3, 5, 13, 14. No proceedings to be commenced after the expiration 
 of three years next after the committing of the offence, or one year 
 next after the first discovery thereof by the person proceeding, lb. 
 «. 18. As to the form of indictment, ib. ss. 10, 12. (There are 
 very many statutes with respect to forgeries upon particular com- 
 panies, to which it is unnecessary to refer, inasmuch as it will be 
 found that all such forgeries are punishable under some s^tion 
 or sections of the general act, 24 d; 25 Vict. c. 98.) Forging or 
 altering any share warrant or coupon, or any document purporting 
 to be a share warrant or coupon, issued in pursuance of " The Com- 
 panies Act, 1867 ;" felony, penal servitude for life, or for not less than 
 five years, or imprisonment for not exceeding two years. 30 tfe 31 
 Vict. c. 131, s. 34. Forging, etc., any certificate required by " The 
 Workshop Regulation Act, 1867 ;" misdemeanor, imprisonment for 
 not exceeding three months. 30 di; 31 Vict. c. 146, s. 17. Forging, etc., 
 any certificate of appointment as inspector or sub-inspector of fac- 
 tories; misdemeanor, subject to the like punishment. Id. s. 20; 30 
 d 31 Vict. c. 103, s. 11. Every person, whether principal, broker, or 
 agent, who shall wilfully insert in any contract, agreement or token 
 of sale and purchase made or entered into for the sale or transfer of 
 any share or shares, or of any stock or other interest, in any joint 
 stock banking company in the United Kingdom of &reat Britain and 
 Ireland, constituted under or regulated by the provisions of any act 
 of parliament, royal charter, or letters patent, issuing shares or stock 
 transferable by any deed or written instrument, any false entry of the 
 numbers by which such shares, stock, or other interest are distin- 
 guished on the registers or books of such banking company, or any 
 ■ name or names other than that of the person or persons in whose 
 names such shares, stock, or interest shall stand as registered pro- 
 prietors thereof in the books of such banking company, shall be 
 guilty of a misdemeanor and punishable accordingly. 30 Vict. c. 29, 
 s. 1. This enactment does not extend to shares or stock in the 
 Bank of England or the Bank of Ireland. Id. s. 3. 
 
 Forging any register-book, certificate of survey, certificate of re- 
 gistry, declaration of ownership, bill of sale, instrument of mortgage, 
 certificate of mortgage or sale, or any entry or indorsement required 
 
Forgery. 607 
 
 by the second part of the " Merchant Shipping Act, 1854," to be 
 made on any of the above documents ; felony. 17 & 18 Vict. c. 104, 
 s. 101. Forging a master's certificate or report of the service, quali- 
 fications, conduct, or character of any seaman, etc. ; misdemeanor. 
 Id. s. 176 ; see R. v. Wilson, Dears. & B. 559 ; 27 L. J. (M. C.) 230. 
 Forging quarantine certificates ; felony. 6 G. 4, c. 78, s. 25. Forg- 
 ing certificates, etc., mentioned in the act for the abolition of the 
 slave-trade ; felony. 6 O. 4, c. 78, s. 24. Forging or counterfeiting 
 any die, for marking gold or silver wares, or marking such wares 
 with a forged die, or forging the mark of any such die, or transposing 
 or removing the marks, or cutting or severing the marks with intent 
 to affix them on other wares, or affixing any mark cut from other 
 wares, or fraudulently using genuine dies ; felony, transportation for 
 not more than fourteen nor less than seven years, or imprisonment 
 with or without hard labour, not exceeding three years. 7 «£ 8 
 Vict. c. 22, s. 2. Any registrar wilfully making or causing to be 
 made any falsification in any matter relating to the register of phar- 
 maceutical chemists and chemists and druggists ; misdemeanor, mxr 
 prisonment not exceeding twelve months. 31 <& 32 Vict. c. 121, «. 14. 
 6. As to the instruments of forging. — To make or have any frame, 
 etc., having therein any words, etc., peculiar to and appearing an 
 the substance of any paper provided or to be provided or used for 
 exchequer bills or exchequer bonds or exchequer debentures, or any 
 machinery for working any threads into the substance of any paper, 
 or any such thread, and intending to imitate such words, etc., or any 
 plate peculiarly employed for printing such exchequer bills, etc., or 
 any die or seal peculiarly used for preparing any such plate, or for 
 sealing such exchequer bills, etc., or any plate, die or seal intended 
 to imitate any such plate, die, or seal as aforesaid ; felony, penal 
 servitude not exceeding seven years, and not less than five [27 tS: 28 
 Vict. t. 47, «. 2, ante, p. 173] years, or imprisonment not exceeding 
 two years. 24 ^ 25 Vict. c. 98, s. 9. To make or have any paper 
 in the substance of which shall appear any words, etc., threads, etc., 
 peculiar to and appearing in the substance of any paper provided or 
 to be provided or used for such exchequer bills, bonds or debentures, 
 or any part of such words, letters, figures, marks, lines, threads, or 
 other devices, and intended to imitate the same ; or taking any 
 impression of any such plate, die or seal as in the last preceding 
 section mentioned ; felony, penal servitude not exceeding seven 
 years, and not less than five [27 & 28 Vict. c. 47, s. 2, ante, p. 173] 
 years, or imprisonment not exceeding two years. Id. s. 10. To 
 purchase or receive, or knowingly have any paper manufactured and 
 provided by or under the directions of the commissioners of inland 
 revenue or commissioners of the treasury, for the purpose of being 
 used as exchequer bills or exchequer bonds or exchequer debentures, 
 before such paper shall have been duly stamped, signed and issued 
 for public use, or any such plate, die or seal as in the last two pre- 
 ceding sections mentioned ; misdemeanor, imprisonment not exceed- 
 ing three years. Id. e. 11. To manufacture or use paper, plates, 
 etc., intended to imitate those used for exchequer bills ; felony. 29 
 Vict. c. 25, «. 20. To be unlawfully in possession of such paper, 
 plates, etc.; misdemeanor, imprisonment for not more than three 
 years, nor less than six calendar months. Id. s. 21. 
 
 To make or have any frame, etc., for the making of paper, with 
 the words " Bank of England" or " Bank of Ireland" visible on the 
 substance, or to make paper with curved or waving bar or wire 
 
608 Forgerg. 
 
 lines, etc., or to make, etc., or sell, etc., such paper, etc. ; felony, 
 penal servitude not exceeding fourteen years, and not less than five 
 [27 & 28 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment not 
 exceeding two years. 24 <& 26 Vict. c. 98, s. 14. (See s. 15.) To 
 engrave on any plate, etc., any bank-note, etc., or blank bank-note, 
 bill, etc., or use and have possession of such plate, etc., or utter, or 
 have paper upon which a blank bank-note, etc., shall be printed; 
 felony, subject to the same punishment. Id. s. 16. To engrave in 
 England upon a plate part of a note purporting to be a note of a 
 Scotch bank, is an offence within s. 16, notwithstanding s. 55, which 
 provides that nothing in the act contained shall extend to Scotland. 
 B. r. Brachmridge, L. K, 1 C. C. R. 133 ; 37 L. J. (M. C.) 86. To 
 engrave on any plate, etc., any word, number, figure, character, or 
 ornament, resembling any part of a bank-note, etc., or use or have 
 such plate, etc., or utter or have any paper on which there shall be 
 an impression of any word, etc. ; felony, subject to the same punish- 
 ment. 24 d; 25 Vict. c. 98, s. 17. To make, use, or have possession 
 of any frame, etc., for the making of paper, with the name or firm of 
 any person or persons, body corporate, or company carrying on busi- 
 ness as bankers, appearing on the substance ; or to make, sell, etc., 
 or have possession of such paper ; felony, subject to the same punish- 
 ment. Id. .s. 18. See B. v. Keith, Dears. 486 ; 24 L. J. (M. C.) 110. 
 To engrave plates, etc., for foreign bills or notes, or use or have such 
 plates, or utter any paper on which any part of such bill, etc., may 
 be printed ; felony, subject to the like punishment. Id. s. 19. See 
 B. V. Warshaner, 1 Mood. C. C. 466 : B. v. Harris, 1 C. & P. 416, 
 429 : B. V. Hannon, 2 Mood. C. C.ll ; 2 C. & P.\l: B. v. RimUi, 
 L. & C. 330 ; 33 L. J. (M. C.) 28. To engrave upon any plate, etc., 
 any stock certificate or coupon purporting to be such a stock certi- 
 ficate or coupon as is mentioned in " The Forgery Act, 1870," or to 
 use or have such plate, etc., or to utter or to have any paper upon 
 which any such blank stock certificate oi coupon or part thereof 
 shall be printed ; felony, subject to the like punishment. 33 & 34 
 Vict. c. 58, s. 5. To engrave upon any plate, etc., any India stock 
 certificate or coupon, purporting to be issued under " The India 
 Stock Certificate Act, 1863," or to use or have such plate, etc., or 
 to utter or have any paper upon which any such blank India stock 
 certificate or coupon, or part thereof, shall be printed ; felony, sub- 
 ject to the like punishment. 26 c6 27 Vict. c. 73, «. 15. To engrave 
 upon any plate, etc., any share warrant or coupon, purporting to he 
 issued under "The Companies Act, 1867," or to use or have such 
 plate, etc. ; felony, subject to the like punishment. 30 & 31 Vict. 
 c. 131, s. 36. As to the instruments for forging stamps used for the 
 purpose of the inland revenue, see 33 & 34 Vict. c. 98, s. 18, ante, 
 p. 603. As to instruments for forging stamps used in pursuance 
 of " The Local Stamp Act, 1869," see 32 & 33 Vict. c. 49, s. 8. 
 
 All these statutes, with very few exceptions, make the uttering of 
 these forged instruments respectively, knowing them to be forged, 
 equally penal with forging them. 
 
Frauds against the Transfer uf Land Act. 609 
 
 FRAUDS AGAINST THE TEANSFEE OF LAND ACT. 
 
 Statute. 
 
 25 (& 26 Vict. e. 53, s. 105 — False Statements^ Concealments, etc.'] — 
 If in any proceeding to obtain the registration of any land, or any 
 land certificate or certificate of title, or otherwise in any transaction 
 relating to land which is or is proposed to be put upon the registry, 
 any person acting either as principal or agent shall, knowingly and 
 with intent to deceive, make or assist, or join in or be privy to the 
 making, of any material false statement or representation, or sup- 
 press, conceal, or assist or join in, or be privy to the suppressing, 
 withholding, or concealing from any judge, or the registrar, or any 
 person employed by or assisting the registrar, any material docu- 
 ment, fact, or matter of information, every person so acting shall be 
 deemed to be guilty of a misdemeanor, and on conviction shall be 
 liable to be imprisoned for a term not exceeding three years, and 
 either with or without hard labour, or to be fined such sum as the 
 court by which he is convicted shall award : the act or thing done or 
 obtained by means of such fraud or falsehood shall be null and void 
 to all intents and pm-poses, except as against a purchaser for valuable 
 consideration without notice. 
 
 Sect. 106— Conviction not to affect Civil Remedy.'] — No proceeding 
 or conviction for any act hereby declared to be a misdemeanor shall 
 affect any remedy which any person aggrieved by such act may be 
 entitled to, either at law or in equity, against the person who has 
 committed such act. 
 
 Sect. 107 — Evidence.] — Nothing in this act contained shall entitle 
 any person to refuse to make a complete discovery by answer to any 
 bill in equity, or to answer any question or interrogatory in any civil 
 proceeding, in any court of law or equity, or in the court of bank- 
 ruptcy ; but no answer to any such bUl, question, or interrogatory, 
 shall be admissible in evidence against such person in any criminal 
 proceeding. 
 
 Sect. 138 — Fraudulently procuring order of Court in relation to 
 Registered Land, etc.] — If any person fraudulently procures, assists 
 in fraudulently procuring, or is privy to the fraudulent procurement 
 of any order of the court of chancery in relation to registered land, 
 or fraudulently procures, assists in fraudulently procuring, or is privy 
 to the fraudulent procurement of the entry on the register of any 
 caveat or notice of a charge, or of the erasure from the register or 
 alteration on the register of any caveat or notice of a charge, such 
 person shall be deemed to be guilty of a misdemeanor ; and any 
 order procured by fraud, and any act consequent on such order, and 
 any entry, erasure, or alteration so made by, fraud, shall be void as 
 between all parties or privies to such fraud. 
 
 Sect. 139— Pumshment of Misdemeanor under last preceding Section.] 
 — Any person convicted of a misdemeanor under the last preceding 
 section shall be liable to imprisonment for any term not exceeding 
 three years, with or without hard labour, or to be fined such sum as 
 the com-t by which he is convicted shall think just. 
 
 D d6 
 
610 Frauds against the Declaration of Title Act. 
 
 FRAUDS AGAINST THE DECLARATION OF TITLE ACT, 1862. 
 
 Statute. 
 
 25 (6 26 Vict. c. 67, s. 44 — False Statements, Concealments, etc.] —If 
 in the course of any proceeding before the court under this act any 
 person acting either as principal or agent shall, knowingly and with 
 intent to deceive, make or assist, or join in or be privy to the making, 
 of any material false statement or representation, or suppress, con- 
 ceal, or assist, or join in or be privy to the suppressing, withholding, 
 or concealing from the court any material document, fact, or matter 
 of information, every person so acting shall be deemed to be guilty 
 of a misdemeanor, and on conviction shall be liable to be imprisoned 
 for a term not exceeding three years, and either with or without hard 
 labour, or to be fined such sum as the court by which he is convicted 
 shall award : the order or declaration of title obtained by means of 
 such fraud or falsehood, shall be null and void for or against all persons 
 other than a purchaser for valuable consideration without notice. 
 
 Sect. 45 — Forgery of Document relating to La/nd.l — If in the course 
 of any proceeding before the court under this act any person shall 
 fraudulently forge or alter, or assist in forging or altering, any certi- 
 ficate or other document relating to such land or to the title thereof, 
 or shall fraudulently offer, utter, dispose of, or put off any such cer- 
 tificate or other document, knowing the same to be forged or altered, 
 such person shall be guilty of felony, and upon conviction shall be 
 liable, at the discretion of the court by which he is convicted, to be 
 kept in penal servitude for life, or for any term not less than three 
 years [now five years, 27 <& 28 Vict. c. 47, s. 2, ante, p. 173], or to be 
 imprisoned for a term not exceeding two years, with or without hard 
 labour, and with or without solitary confinement. 
 
 Sect. 46 — Conviction not to affect Civil Remedy.'] — No proceeding 
 or conviction for any act hereby declared to be a misdemeanor shall 
 affect any remedy which any person aggrieved by such act may be 
 entitled to, either at la-wr or in equity, against the person who has 
 committed such act. 
 
 Sect. 47 — Evidence.'] — Nothing in this act contained shall entitle 
 any person to refiise to make a complete discovery by answer to any 
 bill in equity, or to answer any question or interrogatory, in any 
 civil proceeding, in any court of law or equity, or in the court of 
 bankruptcy ; but no answer to any such bill, question, or interroga- 
 tory, shall be admissible in evidence against such person in any cri- 
 minal proceeding. 
 
 Sect. 8. 
 false personation. 
 
 PERSONATING SEAMEN, SOLDIERS, ETC. 
 
 Statutes. 
 28 S 29 Vict. c. 124, s. %-^Personating Seamen, etc.] — If any person 
 in order to receive any pay, wages, allotment, prize money, bounty- 
 
False Personation. 611 
 
 money, grant, or other allowance in the nature thereof, half-pay, 
 pension, or allowance from the compassionate fund of the navy, pay- 
 able or supposed to be payable by the Admiralty, or any other money 
 so payable, or supposed to be payable, or any effects or money in 
 charge or supposed to be in chai-ge of the Admiralty, falsely and de- 
 ceitfully personates any person entitled or supposed to be entitled 
 to receive the same, every such person shall be guilty of a misde- 
 meanor, and being convicted thereof shall be liable, at the discretion 
 of the court, to be kept in penal servitude for any term not exceed- 
 ing five years, or to be imprisoned for any term not exceeding two 
 years, with or without hard labour, and with or without solitary con- 
 finement, or on summary conviction before ajustice, sheriff, or magis- 
 trate, shall be liable to be imprisoned for any term not exceeding six 
 months, with or without hard labour. 
 
 Sect. 9 — Saving for Pmiishment vmder other Acts, etc.'] — Nothing in 
 this act shall prevent any person irom being proceeded against and 
 punished under any other act, or at common law in respect of an 
 offence (if any) punishable as well under this act as under any other 
 act, or at common law. 
 
 7 (?.4, c. 16, s. 38— Personating Soldiers, ete.] — If any person shall 
 willingly and knowingly personate or falsely assume the name or 
 character, or procure any other to personate or falsely assume the 
 name or character of any officer, non-commissioned officer, soldier, 
 or other person entitled or supposed to be entitled to any pension, 
 wages, pay, grant, or other allowance of money, prize money, or 
 relief, due or payable, or supposed to be due or payable, for or on 
 account of any service done or supposed to be done by any such 
 officer, non-commissioned officer, soldier, or other person as afore- 
 said, in his majesty's army or other military service, or shall per- 
 sonate or falsely assume the name or character of the executor or 
 administrator, wife, relation, or creditor, of any such officer, non- 
 commissioned officer, soldier, or other person as aforesaid, in order 
 fi-audulently to receive any pension, wages, pay, grant or other allow- 
 ance of money, prize money, or relief due or payable, or supposed to 
 be due or payable, for or on account of any services done, or sup- 
 posed to be done by any such officer, non-commissioned officer, sol- 
 dier, or other person as aforesaid, every such person so offending, 
 being thereof lawfully convicted, shall be and is hereby declared and 
 adjudged to be guilty of felony, and shall and may be transported for 
 life, or for such term of years as the court shall adjudge. 
 
 2 W. 4, c. 53, B. 49 — Personating Soldiers, etc.] — If any person 
 shall knowingly and willingly personate or falsely assume the name 
 or character, or procure any other person to personate or falsely as- 
 sume the name or character of any officer, non-commissioned officer, 
 soldier, or other person entitled or supposed to be entitled to any 
 prize money, grant, bounty money, share or other allowance of 
 money, due or payable, or supposed to be due or payable, for or on 
 account of any service performed or supposed to have been performed 
 by any officer, non-commissioned officer, soldier, or other person who 
 shall have really served or be supposed to have served in his ma- 
 jesty's army, or in any other military service, or shall personate or 
 falsely assume, or act, aid or assist in personating or falsely assum- 
 ing the name or character, or procure any other person to personate 
 
612 False Personation. 
 
 or falsely assume the name or character of the executor or adminis- 
 trator, wife, widow, next of kin, relation, or creditor of any such 
 officer, non-commissioned officer, soldier, or other person as afore- 
 said, in order to receive or to enable any other person to receive 
 any prize money, grant, bounty money, share, or other allowance of 
 money due or payable, or supposed to be due or payable, for or on 
 account of any service performed, or supposed to have been per- 
 formed by any such officer, non-commissioned officer, soldier or other 
 person as aforesaid; all and every person so offending, being thereof 
 lawfully convicted, shall be and are and is hereby declared and ad- 
 judged to be guilty of felony, and shall be transported beyond the 
 seas for life, or for any term not less than seven years, as the court 
 before whom such person or persons shall be convicted shall ad- 
 judge. 
 
 9 <fc 10 Vict. c. 24, s. 1.1— Ante, p. 174. 
 
 20 c§ 21 Vict. c. 3, 8. 2.]— Ante, p. 172. 
 
 27 d 28 Vict. c. 47, «. 2.}— Ante, p. 173. 
 
 Indictment for personating a Seaman. 
 
 Central Criminal Court, to wit: — The jurors for our lady the Queen 
 upon their oath present, that J. S., on the first day of August, in the 
 
 year of our Lord , in order to receive certain pay then payable 
 
 by the admiralty (" any pay, wages, allotment, prize money, bou/niy 
 money, grant or other allowance in the nMure thereof, half pay, pension 
 or allowance from the compassionate fwnd of the navy, payable or sup- 
 posed to he payable by the admiralty, or any other money so payable or 
 supposed to he payable, or any effects or money in charge or supposed to 
 be in charge of the admiralty^') did unlawfully, falsely and deceitfully 
 personate one J. N., a person then entitled to receive the same pay 
 (" any person entitled or snip/posed to be entitled to receive the some"); 
 against the form [as ante, p. 347]. 
 
 Misdemeanor: penal servitude for any term not exceeding five years, 
 or imprisonment not exceeding two years, with or without hard labowr, 
 and with or vnthout solitary confinement, 28 & 29 Vict. c. 124, s. 8; 
 such confinement not exceeding one month at any one time, nor three 
 months in any one year. 7 W. 4 c6 1 Vict. c. 90, s. 5. 
 
 In indictments for the personation of soldiers, etc., the intent may he 
 laid to defraud " the Lords and others. Commissioners of the Rcyal 
 Hospital for Soldiers at Chelsea, in the covinty of Middlesex" 7 G. 4, 
 c. 16, s. 31. 
 
 Evidence. 
 
 Prove that J. N. was a person entitled to receive pay fi-om the 
 admiralty. See R. v. Brown, 2 East, P. C. 1007: R. v. Tatmet, R. 
 (& R. 351. Prove that the defendant personated or assumed the 
 name and character of J. N. The offence will be complete, though 
 the personated seaman be dead ; R. v. Martin, R. & R. 324; and 
 even though the wages have been paid. R. v. Cramip, Id. 327. So, 
 upon an indictment on the 7 G. 4, c. 16, «. 38, for forging the name 
 of a person to a letter of attorney, for the receipt of a pension " sup- 
 posed to be due" to such person; it was held that the defendant was 
 rightly convicted, although it appeared that no such pension was 
 actually existing. R. v. PringU, 2 Mood. C. C. 127. It is no de- 
 
False Personation. 613 
 
 fence to an indictment under 2 W. 4, c. 53, s. 49, ante, p. 611, for 
 personating a soldier that the prisoner was authorized by the soldier 
 to personate him; R. v. Lahe, 11 Cox, 333; or that the prisoner had 
 bought from the soldier personated the prize-money to which the 
 latter was entitled. Id. 
 
 The offence of personating is not confined to the person only who 
 personates the seaman; all persons who aid and abet in the offence 
 are principals. 24 cfc 25 Vict. c. 94, s. 8. 
 
 PERSONATING OWNERS OF STOCK, ETC. 
 
 Statutes. 
 24 (& 25 Vict. c. 98, s. 3.] — Whosoever shall falsely and deceitfully 
 personate any owner of any share or interest of or in any stock, 
 annuity, or other public fund, which now is or hereafter may be 
 transferable at the Bank of England or at the Bank of Ireland, or 
 any owner of any share or interest of or in the capital stock of any 
 body corporate, company, or society, which now is or hereafter may 
 be established by charter, or by, under, or by virtue of any act of 
 parliament, or any owner of any dividend or money payable in re- 
 spect of any such share or interest as aforesaid, and shall thereby 
 transfer or endeavour to transfer any share or interest belonging to 
 any such owner, or thereby receive or endeavour to receive any 
 money due to any such owner, as if such offender were the true and 
 lawful owner, shall be guilty of felony, and being convicted thereof 
 shall be liable, at the discretion of the court, to be kept in penal 
 servitude for life or for any term not less than three years [now 
 five years, 11 & 28 Vict. c. 47, «. 2, ante, p. 173], or to be imprisoned 
 for any term not exceeding two years, with or without hard labour, 
 and with or without solitary confinement. 
 
 33 & 34 Vict. c. 68, s. 4 — Personation of Owners of Stoch.'] — 
 If any person falsely and deceitfully personates any owner of any 
 share or interest of or in any such stock as aforesaid (J. e. any 
 stoch as defined in " The National Debt Act, 1870," 33 & 34 Vict. 
 c. 71), or of any such stock certificate or coupon as aforesaid {i. e. 
 any stoch certificate or coupon issued in pursuance of Part V. of" The 
 National Debt Act, 1870," or of amy former act), and thereby obtains 
 or endeavours to obtain any such stock certificate or coupon, or 
 receives or endeavours to receive any money due to any such owner, 
 as if such person were the true and lawful owner, he shall be guilty 
 of felony, and being convicted thereof shall be liable, at the discre- 
 tion of the court, to be kept in penal servitude for life or for any 
 term not le'Ss than five years, or to be imprisoned for any term not 
 exceeding two years, with or without hard labour, and with or with- 
 out solitary confinement. 
 
 26 & 27 Vict. c. 73, s. 14.]— Whosoever shall falsely and deceitfully 
 personate any owner of any share or interest of or in India stock, or 
 of any India stock certificate or coupon, issued in pursuance of this 
 act, and shall thereby obtain or endeavour to obtain any such India 
 Stock certificate, or coupon, or receive or endeavour to receive any 
 
614 Fahe Personation. 
 
 money due to any such owner, as if such offender were the true and 
 lawful owner, shall be guilty of felony, and being convicted thereof 
 shall be liable, at the discretion of the court, to be kept in penal ser- 
 vitude for life or for any term not less than three years [now five 
 years, 27 <£ 28 Vict. c. 47, s. 2, ante, p. 173], or to be imprisoned for 
 any term not exceeding two years, with or without hard labour, and 
 with or without solitary confinement. 
 
 30 & 31 Vict. c. 131, s. 35.] — ^Whosoever falsely and deceitfully 
 personates any owner of any share or interest of or in any company, 
 or of any share warrant or coupon, issued in pursuance of this act 
 (The Companies Act, 1867), and thereby obtains or endeavours to 
 obtain any such share or interest, or share warrant or coupon, or re- 
 ceives or endeavours to receive any money due to any such owner, 
 as if such offender were the true and lawful owner, shall be guilty of 
 felony, and being convicted thereof shall be liable, at the discretion 
 of the court, to be kept in penal servitude for life, or for any term 
 not less than five years, or to be imprisoned for any term not exceed- 
 ing two years, with or without hard labour, and with or without 
 solitary confinement. 
 
 Indietmeni for personation imder 24 & 25 Vict. c. 98, «. 3. 
 
 Commencmnent as ante, p. 569] — feloniously did falsely and deceit- 
 fully personate one J. N., the said J. N. then being the owner of a 
 certain share and interest in certain stock and annuities, which were 
 then transferable at the Bank of England, to wit [state the amount 
 and natwre of the stocJc]; and that the said J. S. thereby did then 
 transfer (" transfer or endeavour to transfer^') the said share and inte- 
 rest of the said J. N., in the said stock and annuities, as if he the 
 said J. S. were then the true and lawful owner thereof; against the 
 form [as ante, p. 347] . 
 
 Felony: penal servitude for life or not less than five [27 & 28 
 Vict. e. 47, s. 2, ante, p. 173] years, or imprisonment not exceeding two 
 years, with or without hard labour, and with or without solita/ry con- 
 finement (such confinement not exceeding one month at any one time, 
 nor three months in any one year, 24 cfe 25 Vict. c. 98, s. 53, ante, 
 p. 558). — 24 tfe 25 Vict. c. 98, s. 3. As to requiring the offender to enter 
 into recognizances and find sureties for keeping the peace, Id. s. 51 
 {ante, p. 658). 
 
 This offence is not triable at qucurter sessions. 5 «£ 6 Vict. e. 38, «. 1 
 (ante, p. 104). 
 
 Evidence. 
 Prove the personation and the transfer, as stated in the indict' 
 ment. 
 
 PERSONATING BAIL, ETC. 
 
 Statute. 
 
 24 <6 25 Vict. c. 98, s. 34.]— Whosoever, without lawfid authority 
 or excuse (the proof whereof shall lie on the party accused), shall, 
 in the name of any other person, acknowledge any recognizance or 
 bail, or any cognovit actionem, or judgment, or any deed or other 
 
Fahe Personation. 615 
 
 instrument, before any court, judge, or other pferson lawfully autho- 
 rized in that behalf, shall be guilty of felony, and being convicted 
 thereof shall be liable, at the discretion of the court, to be kept in 
 penal servitude for any term not exceeding seven years and not 
 less than three years [now five years, 27 <& 28 Vict. c. 47, s. 2, ante, 
 p. 173], or to be imprisoned for any term not exceeding two years, 
 with or without hard labour, and with or without solitary confine- 
 ment. 
 
 Indictment. 
 
 Commmcement as ante, p. 559] — feloniously did, without lawful 
 authority or excuse, before the honourable Sir Samuel Martin, knight, 
 one of the barons of her Majesty's com-t of Exchequer at West- 
 minster (the said Sir Samuel Martin, knight, then being lawfully 
 authorized in that behalf), acknowledge a certain recognizance of 
 bail in the name of J. N., in a certain cause then depending in the 
 said court, wherein A. B. was plaintiff and C. D. defendant ; against 
 the form [as ante, p. 347]. 
 
 ■ Felony : penal servitude for not exceeding seven and not less than 
 five [27 <& 28 Vict. c. 47, s. 2, ar^te, p. 173] years, or imprisonment for 
 not more than two years, with or without hard labour, and with or 
 without solitary confinement (such confinement not exceeding one month 
 at any one time, nor three months in any one year, 24 & 25 Vict. c. 98, 
 s. 53, ante, p. 568). — 24 d 25 Vict. c. 98, s. 34. As to requiring the 
 offender to enter into recognizances and find sureties for keeping the 
 peace, Id. s. 51 (ante, p. 558). 
 
 Evidence. 
 
 Prove the pendency of the action by producing the writ, or if it 
 have been returned, by an examined copy. Prove that J. S. became 
 hail in the name of J. N. by producing the bail- piece, and the iden- 
 tity of J. S. as the person who became bail. The proof of lawful 
 authority or excuse to do the act lies on the defendant. 
 
 As to personation of voters at parliamentan/ elections, see6<&7 Vict. 
 c. 18, ss. 81, 83—89 : R. v. Bowler, C. & Mar. 659 : R. v. Ellis, Id. 
 664; R. V. Spalding, Id. 568. As to personation of voters at municipal 
 elections, see b & 6 W. 4, c. 76, s. 34 ; 22 Vict. c. 35, s. 9 : R. v. 
 Thompson, 2 M. <& Rob. 355 : R. v. Bent, 1 Den. 157; 2C.&K. 179: 
 R. V. Haslam, 1 Den. 73 : R. v. Goodman, 1 F. <& F. 502. By 28 
 Vict. e. 36, s. 11 (The Cownty Voters' Registration Act, 1865), any 
 person falsely or fraudulently signing any such declaration as is men- 
 tioned ins. 10 of that act, in the name of any other person, whether such 
 person shall be living or dead, and every person transmitting as genuine 
 any false or falsified declaration, knowing the same to be false or 
 falsified, and any person hnowingly and wilfully making any false 
 statement of fact in such declaration, shall be guilty of a misdemeanor, 
 and punishable by fine or imprisonment for a term not exceeding one 
 year. 
 
( 616 ) 
 
 CHAPTER II. 
 
 OFFENCES AGAINST THE PERSONS OF INDIVIDtTALS. 
 
 Sect. 6. Rape, etc. 
 
 7. Attempts to procure 
 Abortion. 
 
 8. Concealing the Birth of 
 Children. 
 
 9. Sodomy. 
 
 Sect. 1. Murder. 
 
 2. Manslaughter. 
 
 3. Assault, Battery , Wound- 
 
 ing, etc. 
 
 4. False Imprisonment. 
 
 5. Abduction. 
 
 Sect. 1. 
 
 MURDER. 
 
 Statutes. 
 
 24 (6 25 Vict. c. 100, s. 1.] — Whosoever shall be convicted of 
 murder shall suffer death as a felon. 
 
 Sect. 2 — Sentence for Murder.'] — Upon every conviction for murder 
 the court shall pronounce sentence of death, and the same may be 
 carried into execution, and all other proceedings upon such sentence 
 and in respect thereof may be had and taken, in the same manner in 
 all respects as sentence of death might have been pronounced and 
 carried into execution, and all other proceedings thereupon and in 
 respect thereof might have been had and taken, before the passing 
 of this act, upon a conviction for any other felony for which the 
 prisoner might have been sentenced to suffer death as a felon. 
 
 31 Vict. c. 24, s. 2 — Judgment of Death for Murder to be executed 
 vnthin Prison Walls.] — Judgment of death, to be executed on any 
 prisoner sentenced after the passing of this act on any indictment or 
 inquisition for murder, shall be carried into effect within the walls of 
 the prison in which the offender is confined at the time of execution. 
 
 24 S 25 Vict. c. 100, s. 3.] — The body of every person executedifor 
 murder shall be buried within the precincts of the prison in which he 
 shall have been last confined after conviction, and the sentence of 
 the court shall so direct. 
 
 31 Vict. c. 24, s. 6 — Burial of Offender executed.] — The body of 
 every offender executed shall be buried within the walls of the 
 prison within which judgment of death is executed on him : pro- 
 vided that if one of her Majesty's principal secretaries of state is 
 satisfied, on the representation of the visiting justices of a prison, 
 that there is not convenient space within the walls thereof for the 
 burial of offenders executed therein, he may, by writing under his 
 
' Murder. 617 
 
 hand, appoint some other fit place for that purpose, and the same 
 shall be used accordingly. 
 
 Sect. 16 — Saving Clause as to legality of Execution.'] — The omission 
 to comply with any provision of this act shall not make the execution 
 of judgment of death illegal in any case where such execution would 
 otherwise have been legal. 
 
 Sect. IQ — General Saving.] — Except in so far as is hereby other- 
 wise provided, judgment of death shall be carried into effect in the 
 same manner as if this act had not passed. 
 
 24 db 25 Vict. c. 100, «. 6 — Form of Indictment.] — In any indict- 
 ment for murder or manslaughter, or for being an accessory to any 
 murder or manslaughter, it shall not be necessary to set forth the 
 manner in which or the means by which the death of the deceased 
 was caused, but it shall be sufficient in any indictment for murder to 
 charge that the defendant did feloniously, wilfully, and of his malice 
 aforethought kill and murder the deceased ; and it shall be sufficient 
 in any indictment for manslaughter to charge that the defendant did 
 feloniously kill and slay /the deceased ; and it shall be sufficient in 
 any indictment against any accessory to any murder or manslaughter 
 to charge the principal with the murder or manslaughter (as the case 
 may be) in the manner hereinbefore specified, and then to charge 
 the defendant as an accessory in the manner heretofore used and 
 accustomed. 
 
 Sect. 8 — Petit Treason to ie treated as Murder.] — Every offence 
 which before the commencement of the act of the ninth year of King 
 George the Fourth, chapter thirty-one, would have amounted to petit 
 treason, shall be deemed to be^murder only, and no greater offence ; 
 and all persons guilty in respect thereof, whether as principals or as 
 accessories, shall be dealt with, indicted, tried, and punished as prin- 
 cipals and accessories in murder. 
 
 Sect. 9 — Venue.] — Where any murder or manslaughter shall be 
 committed on land out of the United Kingdom, whether within the 
 Queen's dominions or without, and whether the person killed were a 
 subject of her Majesty or not, every offence committed by any sub- 
 ject of her Majesty, in respect of any such case, whether the same 
 shall amount to the offence of murder or of manslaughter, or of being 
 accessory to murder or manslaughter, may be dealt with, inquired o^ 
 tried', determined, and punished in any county or place in England 
 or Ireland in which such person shall be apprehended or be in cus- 
 tody, in the same manner in all respects as if such offence had been 
 actually committed in that county or place ; provided that nothing 
 herein contained shall prevent any person from being tried in any 
 place out of England or Ireland for any murder or manslaughter 
 committed out of England or Ireland, in the same manner as such 
 person might have been tried before the passing of this act. 
 
 Sect. 10.] — Where any person, being feloniously stricken, poisoned, 
 or otherwise hurt upon the sea, or at any place out of England or 
 Ireland, shall die of such stroke, poisoning, or hurt in England or 
 Ireland, or, being feloniously stricken, poisoned, or otherwise hurt at 
 any place in England or Ireland, shall die of such stroke, poisoning, 
 
61 8 Murder. 
 
 or hurt upon the sea, or at any place out of England or Ireland, 
 every offence committed in respect of any such case, whether the 
 same shall amount to the offence of murder or of manslaughter, or of 
 being accessory to murder or manslaughter, may be dealt with, in- 
 quired of, tried, determined, and punished in the county or place in 
 England or Ireland in which such death, stroke, poisoning, or hurt 
 shall happen, in the same manner in all respects as if such offence 
 had been wholly committed in that county or place. 
 
 25 & 26 Vict. c. 65.] — Persons subject to the Mutiny Act may, under 
 certain circumstances, be indicted amd tried for the murder or man- 
 slaughter of any person subject to that act before the Central Criminal 
 Court, where the offence has been committed in England or Wales, but 
 out of the jurisdiction of that Court. 
 
 24 <fc 25 Vict. c. 100, «. 66 — Persons loitering at Night, and sus- 
 pected of any Felony against this Act, may be apprehended.']— Any 
 constable or peace officer may take into custody, without a warrant, 
 any person whom he shall find lying or loitering in any highway, 
 yard, or other place during the night, and whom he shall have good 
 cause to suspect of having committed or being about to commit any 
 felony in this act mentioned, and shall take such person as soon as 
 reasonably may be before a justice of the peace, to be dealt with ac- 
 cording to law. 
 
 Sect. 67— Accessories, etc.] — In the case of every felony punishable 
 under this act, every principal in the second degree, and every ac- 
 cessory before the fact, shall be punishable in the same manner as 
 the principal in the first degree is by this act punishable ; and every 
 accessory after the fact to any felony punishable under this act (ex- 
 cept murder) shall be liable to be imprisoned for any term not 
 exceeding two years, with or without hard labour ; and every acces- 
 sory after the fact to murder shall be liable, at the discretion of the 
 court, to be kept in penal servitude for life or for any term not less 
 than three years [now five years, 27 d 28 Vict. c. 47, s. 2, ante, p. 173], 
 or to be imprisoned for any term not exceeding two years, with or 
 without hard labour ; and whosoever shall counsel, aid, or abet the 
 commission of any indictable misdemeanor punishable under this act 
 shall be liable to be proceeded against, indicted, and punished as a 
 principal offender. 
 
 Sect. 68 — Admiralty Offences.] — All indictable offences mentioned 
 in this act, which shall be committed within the jurisdiction of the 
 admiralty of England or Ireland shall be deemed to be offences of 
 the same nature and liable to the same punishments as if they had 
 been committed upon the land in England or Ireland, and may be 
 dealt with, inquired of, tried, and determined in any county or plac^ 
 in England or Ireland in which the offender shall be apprehended or 
 be in custody, in the same manner in all respects as if they had been 
 actually committed in that county or place ; and in any indictment 
 for any such offence, or for being an accessoiy to such an offence, the 
 venue in the margin shall be the same as if the offence had been 
 committed in such county or place, and the offence shall be averred 
 to have been committed " on the high seas :" provided that nothing 
 herein contained shall alter or affect any of the laws relating to the 
 government of her Majesty's land or naval forces. 
 
Mwder. 619 
 
 ' Sect. 69 — Place and Mode of Imprisonment.'] — Whenever imprison- 
 ment, with or without hard labour, may be awarded for any indictable 
 offence under this act, the court may sentence the offender to be im- 
 prisoned, or to be imprisoned and kept to hard labour, in the common 
 gaol or house of correction. 
 
 Sect. 70 — Solitary Confinement and Whipping.] — Whenever solitary 
 coniineraent may be awarded for any offence under this act, the court 
 may direct the offender to be kept in solitary confinement for any 
 portion or portions of any imprisonment, or of any imprisonment 
 with hard labour which the court may award, not exceeding one 
 month at any one time, and not exceeding three months in any one 
 year; and whenever whipping may be awarded for any offence 
 under this act, the court may sentence the offender to be once pri- 
 vately whipped, and the number of strokes and the instrument with 
 which they shall be inflicted shall be specified by the court in the 
 sentence. 
 
 Sect. 71 — Fin^ cmd Sweties.] — Whenever any person shall be con- 
 victed of any indictable misdemeanor punishable under this act, the 
 court may, if it shall think fit, in addition to or in lieu of any punish- 
 ment by this act authorized, fine the offender, and require him to 
 enter into his own recognizances, and to find sureties, both or either, 
 for keeping the peace and being of good behaviour; and in case of 
 any felony punishable under this act otherwise than with death, the 
 court may, if it shall think fit, require the offender to enter into 
 his own recognizances and to find sureties, both or either, for keep- 
 ing the peace, in addition to any punishment by this act authorized; 
 provided that no person shall be imprisoned for not finding sureties 
 under this clause for any period exceeding one year. 
 
 Sect. 73— Prosecution hy Parish Officers — Costs.] — Where any 
 complaint shall be made of any offence against section twenty-six of 
 this act, or of any bodily injury inflicted upon any person under the 
 age of sixteen years, for which the party committing it is liable to 
 be indicted, and the circumstances of which offence amount, in point 
 of law, to a felony, or an attempt to commit a felony, or an assault 
 with intent to commit a felony, and two justices of the peace before 
 whom such complaint is heard shall certify under their hands that it 
 is necessary for the purposes of public justice that the prosecution 
 should be conducted by the guardians of the union or place, or 
 where there are no guardians, by the overseers of the poor of the 
 place, in which the offence shall be charged to have been committed, 
 such guardians or overseers, as the case may be, upon personal 
 service of such certificate or a duplicate thereof upon the clerk of 
 such guardians or upon any one of such overseers, shall conduct the 
 prosecution, and shall pay the costs reasonably and properly incurred 
 by them therein (so far as the same shall not be allowed to them 
 under any order of any court) out of the common fund of the union, 
 or out of the funds in the hands of the guardians or overseers, as the 
 case may be; and, where there is a board of guardians, the clerk or 
 some other officer of the union or place, and, where there is no board 
 of guardians, one of the overseers of the poor, may, if such justices 
 think it necessary for the purposes of public justice, be bound over 
 to prosecute. 
 
620 Murder. 
 
 Sect. 74 — Payment of Prosecutor's Costs by Defendant.'} — Where 
 any person shall be convicted on any indictment of any assault, 
 whether with or without battery and wounding, or either of them, 
 such person may, if the court think fit, in addition to any sentence 
 which the coxa-t may deem proper for the offence, be adjudged to 
 pay to the prosecutor his actual and necessary costs and expenses of 
 the prosecution, and such moderate allowance for the loss of time as 
 the court shall by affidavit or other inquiry and examination ascer- 
 tain to be reasonable; and, unless the sum so awarded shall be 
 sooner paid, the offender shall be imprisoned for any term the court 
 shall award, not exceeding three months, in addition to the term of 
 imprisonment (if any) to which the offender may be sentenced for 
 the offence. 
 
 Sect. 75— Such Costs may be levied by Distress.'} — The court may, 
 by warrant under hand and seal, order such sum as shall be so 
 awarded to be levied by distress and sale of the goods and chattels 
 of the offender, and paid to the prosecutor, and that the surplus, if 
 any, arising from such sale, shall be paid to the owner; and in case 
 such sum shall be so levied, the imprisonment awarded until pay- 
 ment of such sum shall thereupon cease. 
 
 Sect. 77 — Costs of Prosecutions.'] — The court before which any mis- 
 demeanor indictable under the provisions of this act shall be prose- 
 cuted or tried, may allow the costs of the prosecution in the same 
 manner as in cases of felony; and every order for the payment of 
 such costs shall be made out, and the sum of money mentioned 
 therein paid and repaid, upon the same terms and in the same manner 
 in all respects as in cases of felony. 
 
 Indictment. 
 
 Central Criminal Court, to wit:— The jurors for our lady the Queen 
 upon their oath present, that J. S., on the first day of June, in the 
 year of our Lord , feloniously, wilfully, and of his malice afore- 
 thought, did kiU and murder one J. N., against the peace of our 
 lady the Queen, her crown and dignity. As to the venue, see ante, 
 pp. 33, 617. Upon this indictment the defendant may be acquitted of 
 the murder, and found guilty of manslaughter. 
 
 Felony : death. 24^-25 Fic<. c. 100, s. 1. The execution must take 
 place within the walls of the prison in which the offender is confined at 
 the time of executi(m. 31 Vict. c. 24, s. 2, ante, p. 616. Thesentence 
 must express that the body of the convict be buried within the pre- 
 cincts of the prison in which he shall have been last confined after 
 conviction. 24 ij- 25 Vict. c. 100, s. 3. The body of every offender 
 executed shall be buried within the walls of the prison ivithin which 
 he is executed; provided that if one of' her Majesty's principal secre- 
 taries of state is satisfied by the visiting justices of a prison that there 
 is not convenient space within the walls thereof for the burial of of- 
 fenders executed therein, he may appoint some other fit place for that 
 purpose. 31 Vict. c. 24,, s. 6, ante, p. 616. The court, on convic- 
 tion, " shall pronounce sentence of death, and the same may be carried 
 into exeadion, and all other proceedings upon such sentence and in 
 respect thereof may be had and taken in the same manner as sentence 
 of death might have been pronounced and carried into execution, and 
 
Murder. 621 
 
 all other proceedivgs thereupon nnd in respect thereof might have 
 been had and taken, before the passing of this ant, upon a conviction 
 for any other felony for ivhich the prisoner might have been sentenced 
 to suffer death as a felon." 24 &: 25 Vict. c. ICio, s. 2. I'his provision, 
 enacting that '■'upon every conviction for murder the court shall pro- 
 nounce sentence of death," takes away the power which the judge for- 
 merlyhad, by the combined effect of i 6. i, c. 48, s. l,ante, p. 171, and the 
 repealed stat. QSflW.i,c. 30, s. 2 (B. v. Hogg, IM.Sf Boh. 380), 
 to direct the sentence to be recorded merely. Under the old law, 
 where the judge, having mistaken the time of execution, called the de- 
 fendant again to the bar, and rectified it, it was holden by some of the 
 judges that the statute was in this respect mei'ely directory, and that 
 the judge might order the defendant to be executed at any time within 
 fm-tif-eight hours; but all the judges were of opinion that a mistake 
 in this respect might be rectified at any time during the assizes. B. 
 V. Wyatt, R ^ B. 230. But where the judge had omitted that part 
 of the sentence which formerly related to dissection, it was doubted 
 whether it was not an essential part of the sentence,' and the defendant 
 was pardoned. B. v. Fletcher, B. ^ B. 58. In R. v. Garside, 2 
 A. Sf E. 266; 4 L. J. {M. C.) 3, the sheriff of the city of Chester 
 refused to execute the prisoners, who were removed by habeas corpus 
 into the Court of King's Bench, and executed by the marshal oj the 
 Marshalsea, assisted by the sheriff' oj Surrey. Hee 5 ^ 6 VF. 4, c. 1, 
 s. 1. 
 
 The offence of murder is not triable at quarter sessions. 5^6 
 Vict. c. 38, s. 1 {ante, p. 104). 
 
 Evidence for the Prosecution. 
 
 One J. N.] — It must be proved that J. N. was the person killed, 
 otherwise the defendant must be acquitted, unless the variance be 
 amended at the trial (see ante, p. 206). If the name of the deceased 
 be unknown, it should be stated so in the indictment. Id. 
 
 If the deceased were an alien enemy, and killed in the actual 
 heat and exercise of war, this is matter of justiiication, which may 
 be proved on the part of the defendant. See 1 Sale, 433. But it is 
 no matter either of excuse or justification, that the deceased was a 
 Jew, an outlaw, or one attainted of felony or prsemunire. Id. 
 
 Of his Malice aforethought did hill and murder.'] — The law pre- 
 sumes every homicide to be murder, until the contrary appears. 
 Fost. 255. Therefore the prosecutor is not bound to prove malice, or 
 any facts or circumstances beside the homicide, from which the jury 
 may presume it; and it is for the defendant to give in evidence such 
 facts and circumstances as may prove the homicide to be justifiable 
 or excusable, or that at most it amounted to but manslaughter. B. v. 
 Greenacre, B C. <& P. 35. (See post, p. 622 et seq.) 
 
 In cases of express malice, the homicide is usually committed in 
 secret, and it is rarely practicable to substantiate it by direct and 
 positive testimony ; in most cases, the defendant is convicted upon 
 circumstantial evidence merely. Upon this subject it is only neces- 
 sary to refer to what has been already said upon the doctrine of pre- 
 sumptions (ante, p. 236), repeating here merely the rule laid down 
 by Lord Hale (ante, p. 238), never to convict a man of murder or 
 manslaughter on circumstantial evidence alone, unless the body have 
 been found. 2 Hale, 290. See R. v. Hopkins, % C. <& P. 591. 
 
622 Murder^ 
 
 In cases of implied malice {see post, p. 626), the homicide is usually 
 committed in the presence of others, who may prove it ; if not, it 
 must be proved by circumstantial evidence. 
 
 It must also be shown that the deceased died of the wound or 
 other injury given him by the defendant, within a year and day after 
 he received it : for if he died after that time, the law would presume 
 that his death had proceeded from some other cause. 1 Hawk. c. 23 
 s. 90. 
 
 If a man be wounded, and the wound tm-n to a gangrene or fever 
 for want of proper applications, or from neglect, and the man die of 
 the gangrene or fever : or if it become fatal from the refusal of the 
 party to undergo a surgical operation; B. v. Holland, 2 M. & Bob. 
 351 ; this is a homicide, and murder or not, according to the circum- 
 stances under which the wound was given. 1 Hale, 4:21. But, if it 
 appeared that the man's death was caused by improper applications 
 to the wound, and not by the wound itself, it would be otherwise. 
 Id. 
 
 Before the statute 14 c6 15 Vict. c. 100, s. 4 (re-enacted in the 
 24 & 25 Vict. c. 100, s. 6, ante, p. 617), great particularity was neces- 
 sary in the statement in the indictment of the manner in which 
 the death was caused, and in the proof relating thereto. It was 
 necessary to state the instrument or means whereby the mortal 
 injury was inflicted, and to prove that the deceased was killed by 
 the same instrument or means, or by some other instrument or means 
 capable of producing the same kind of death. It was, as it is said 
 (2 Hah, 185), necessary to state in which hand the defendant held 
 the weapon or instrument which caused the death, although it never 
 was necessary to prove it. It was necessary to state with certainty 
 on what part of the body the deceased was wounded or injured, 
 although a variance in this respect also was immaterial in proof. 
 Id. It was necessary, in all cases where the death was caused by 
 personal violence, that the indictment should allege that the defend- 
 ant struck the deceased. It was also considered at one time to be 
 necessary to state, in the case of an incised wound, its length and 
 depth, though it was never necessary to prove this as laid (2 Bale, 
 186); it was at length held to be unnecessary to allege it. B. v. 
 Morley, 1 Mood. C. C. 97. 
 
 The technical strictness thus required led, in numerous instances, 
 to a great and scandalous failure of justice, for examples of which I 
 may refer to the eases of -B. v. Macnally, 9 Co. 670: B. v. Kelly, 1 
 Mood. C. C. 113: B. v. Thompson, Id. 139: B. v. Hughes, 5 C. <& P. 
 126: jB. v. Jones, 1 C. & K. 243. But now, by the enactment above 
 mentioned, it is not necessary to set forth the manner or means of 
 death, but it is sufficient, in an indictment for murder, to charge 
 that the defendant did feloniously, wilfully, and of his malice afore- 
 thought kill and murder the deceased; and in an indictment for 
 manslaughter, to charge that he did feloniously kill and slay the 
 deceased. 
 
 Etndencefor the Defendant. 
 
 The defendant has to prove, either that the murder was not com- 
 mitted by him, or that the offence actually committed does not 
 amount to murder. This defence may be, and frequently is, made 
 out by the examination in chief of the witnesses for the prosecution; 
 but if not, it may be proved froni their cross-examination, or by wit- 
 nesses called upon the part of the defendant. 
 
Murder. 623 
 
 We have seen (ante, p. 621) that the prosecutor is not bound to 
 prove that the homicide was committed from malice prepense; if he 
 prove the homicide merely, the law from thence presumes the malice. 
 The malice in such a case, however, is only presumed ; and the de- 
 fendant may rebut that presumption, by proving that the homicide 
 was justifiable, or excusable, or that at most it amounted to man- 
 slamffhter only, and not to murder. 
 
 Justifiable homicide is of three kinds: — 1. "Where the proper officer 
 executes a criminal in strict conformity with his sentence. 2. Where 
 an officer of justice, or other person acting in his aid, in the legal 
 exercise of a particular duty, kills a person who resists or prevents 
 him from executing it. 3. Where the homicide is committed in pre- 
 vention of a forcible and atrocious crime: as, for instance, if a man 
 attempt to rob or murder another, and be killed in the attempt, the 
 slayer shall be acquitted and discharged. See Bract. 145; 1 Hale, 
 488; 24 <& 25 Vict. c. 100, s. 7 (post, p. 656). 
 
 Excusable homicide is of two kinds:— 1. Where a man doing a 
 lawful act, without any intention of hurt, by accident kills another; 
 as, for instance, where a man is working with a hatchet, and the 
 head by accident flies off and kills a person standing by. This is 
 called homicide per infortunium, or by misadventure. 2. Where a 
 man kills another upon a sudden encounter, merely in his own de- 
 fence, or in defenQB of his wife, child, parent, or servant, and not 
 from any vindictive feeling; which is termed homicide se defendendo. 
 Formerly, if the defendant were found guilty of excusable homicide 
 merely, he had a pardon and a writ of restitution of his goods as a 
 matter of right. And, indeed, to prevent the expense of a pardon, 
 etc., in cases where the death notoriously happened by misadventure 
 or in self-defence, it was the practice to permit (if not direct) a 
 general verdict of acquittal. Fast. 288; 4 Bl. Com. 188. But now, 
 no punishment or forfeiture is incurred by homicide per infortumium 
 or se defendendo, or in any other manner without felony. 24 c6 25 
 Vict. c. 100, s. 7 (.post, p. 656). 
 
 Manslaughter is the unlawful and felonious killing of another 
 without any malice either express or implied. It is of two kinds : — 
 1. Involuntary manslaughter ; where a man, doing an unlawful act 
 not amounting to felony, by accident kills another ; or where a man, 
 by curable neglect of a duty imposed upon him, is the cause of the 
 death of another. And it may be stated generally, that that which 
 constitutes murder, being done by design and of malice prepense in 
 the eye of the law, constitutes manslaughter when arising from cul- 
 pable negligence. See R. v. Hughes, Dears. <Ss B. 248; 26 L. J. 
 (M. C.) 202, post, p. 638. 2. Voluntary manslaughter ; where, upon 
 a sudden quarrel, two persons fight, and one of them kills the other ; 
 or where a man greatly provokes another, by some personal violence, 
 etc., and the other immediately kills him. Manslaughter is felony. 
 
 Murder is thus defined or described by Lord Coke (3 Inst. 47) : 
 " Where a person of sound memory and discretion — unlawfully killeth 
 — any reasonable creature in being — and under the King's peace — 
 with malice aforethought, either express or implied." 
 
 1. It must be committed by a person of sound memory and dis- 
 cretion ; it cannot be committed by an idiot, lunatic, or infant, unless 
 indeed he show a consciousness of doing wrong, and of course a dis' 
 
624 Murder. 
 
 cretion or discernment between good and evil. 4 Bl. Com. 195; t 
 Hawk. c. 1. (See ante, p. 17.) On the trial of a child of thirteen 
 years of age for murder by poisoning, Pollock, C. B., in drawing the 
 distinction between murder and manslaughter, laid it down that no 
 one could commit murder unless he was conscious that the act done 
 was one which would be likely to cause death. R. v. Lamplew, 
 
 3 F. d F. 520. But if any person procure an idiot, etc., to murder 
 another, the procurer is guilty of the murder, 1 Hawk. c. 31, s. 7, 
 although, perhaps, not present at the time it was committed. (See 
 ante, p. 7.) It is no defence on behalf of a foreigner, charged in 
 England with an offence committed here, that he did not know he 
 was doing wrong, the act not being an offence in his own country, 
 E. V. Esop, 1 C.&P. 456. 
 
 2. It must be an unlawful killing not excusable or justifiable. It 
 may be by poisoning, striking, starving, drowning, and a thousand 
 other forms of death by which human nature may be overcome. 
 
 4 Bl. Com. 196 ; 1 Hale, 431. Taking away a man's life by perjury 
 is not, it seems, in law, murder ; see R. v. Macdaniel, Fast. 131 ; and 
 see 4 Bl. Com. l96, n ; although in foro conscientice it is as much so 
 as killing with a sword. If a man, however, do any other act, of 
 which the probable consequence may be and eventually is death, 
 such killing may be murder, although no stroke were struck by him- 
 self ; as was the case of the unnatural son who exposed his sick 
 father to the air against his will, by reason whereof he died ; 1 Hawk, 
 c. 31, s. 5 ; of the harlot, who laid her child in an orchard, where a 
 kite struck it and killed it ; of the mother, who hid her child in a 
 pig-stye, where it was devoured ; and of the parish ofiicers, who 
 moved a child from parish to parish till it died from want of care and 
 sustenance. 1 Hale, 433; 4 Bl. Com. 197. So, where an indictment 
 charged the death of a child to have been caused by its mother cast- 
 ing and throwing it on a heap of ashes, and leaving it there in the 
 open air, exposed to the cold, whereby it died, this was held to con- 
 tain a sufficient charge of murder, inasmuch as it alleged a mis- 
 feasance; but if it had charged the death to have been occasioned by 
 
 a mere nonfeasance, in the neglect of the defendant's maternal duties, 
 it would have been bad, unless it had also showed that the child was 
 of so tender an age, or was placed in such a situation, as to be unable 
 to take care of itself. R. v. Waters, 1 Den. 356 ; 2 C. & K. 864 ; 
 18 L. J. (M. C.) 53. See R. v. Hogen, 2 Den. 277; 20 L. J. (M. C.) 
 219 : R. V. Cooper, 1 Den. 459 ■,2C.<&K. 876 ; 18 L. J. (M. C.) 168: 
 R. V. PUllpot, Dears. 179 ; 22 L. J. {M. C.) 113. So, where an ap- 
 prentice died from harsh treatment, and want of care upon the part 
 of his master, whilst he was labouring under disease; this was holden 
 to be murder in the master. R. v. Squire, 1 Russ. 426 : see E. v. 
 Smith, BC.d: P. 153; E. v. Cheeseman, 7 C. <& P. 455: R. v. Saunders, 
 1 C.& P. 277 : R. V. Marriott, 8 C. (& P. 425 : R. v. Edwards, Id. 
 611 ; 1 Russ. 426. But if the charge be of a nonfeasance, as in neg- 
 lecting to supply food, the prosecutor must not only show a duty in 
 the defendant to supply food, but also that the apprentice (or child) 
 was of tender years, and unable to provide for himself. R. v. Friend, 
 R. & R. 20: E. v. Marriott, supra; and that the defendant was in 
 the actual possession of means to provide for him. R. v. Chamdler, 
 Dears. 453; 24 L. J. {M. C.) 109. It is undisputed law that if a 
 person has the custody of another who is helpless, and leaves that 
 other with insufficient food, and so causes his death, he is criminally 
 responsible. But it is also clear that if a person, having the exercise 
 of free will, chooses to stay in a place where he receives insufficient 
 
Mmder. 625 
 
 food, and his health is injured, and death supervenes, the master is 
 not criminally responsible. Per Erie, C. J., in R. v. Smith, L. & C. 
 607, 625 ; 34 L. J. {M. C.) 162. As to the facts necessary to sup- 
 port an indictment for killing or misusing a limatic, see R. v. Pelham, 
 8 Q. B. 959; 15 L. J. (M. C.) 105. So, if one, under a well-grounded 
 apprehension of personal violence, do an act which causes his death, 
 as, for instance, jumps out of a window, or into a river, he who 
 threatened is answerable &r the consequences. R. v. Evans, 1 Russ. 
 426: R. V. Pitts, C. ■& Mar. 284. If d man have a beast that is used 
 to do mischief, and he, knowing it, suffer it to go abroad, and it kill 
 a man, this, it seems, is manslaughter in the owner ; but if he had 
 purposely turned it loose, though merely to frighten people, and to 
 make what is called sport, it is as much murder as if he had incited 
 a bear or a dog to worry them. 1 Hale, 431 ; 4 Bl. Com. 197. If a 
 man have a disease, which in all likelihood would terminate his life 
 in a short time, and another give him a wound or hurt which hastens 
 his death, this is such a killing as constitutes murder. 1 Hale, 428. 
 Upon a trial for manslaughter, it appeared that the deceased, at the 
 time of the blow given, was in an infirm state of health, and this cir- 
 cumstance was observed upon on behalf of the prisoner, but Parhe, ^ 
 J., in summing up, said, " It is said that the deceased was in a bad 
 state of health, but that is perfectly immaterial, as, if the prisoner 
 was so unfortunate as to accelerate her death, he must answer for it." 
 R. V. Ma/rtin, b C. <& P. 130. So, if a man be woimded, and the 
 wound turn to a gangrene or fever, for want of proper applications, - 
 or from neglect, and the man die of the gangrene or fever ; or if it 
 become fatal ft'om the refusal of the party to submit to a surgical 
 operation ; R. v. Holland, 2 M.- & Rob. 351 ; this is also such a 
 killing as would constitute murder ; 1 Hale, 428 ; but otherwise if 
 the death of the party were caused by improper applications to the 
 wound, and not by the wound itself. Id. And it is a general rule, 
 that, to make the killing murder the death must follow within a year 
 and a day after the stroke or other cause of it. 
 
 3. The person killed must be " a reasonable creature in being, and 
 under the King's peace." Therefore, to kill a child in its mother's 
 womb is no murder; but if the child be born alive, and die by reason 
 of the potion or bruises it received in the womb, it may be murder 
 in the person who administered or gave them. 3 Inst. 50. Thus, if a 
 person, intending to procure abortion, does an act which causes a 
 child to be born so much earlier than the natural time, that it is born 
 in a state much less capable of living, and afterwards dies in conse- 
 quence of its exposure to the external world ; the person who by this 
 misconduct so brings the child into the world, and puts it thei-eby in 
 a situation in which it cannot live, is guilty of murder ; and the mere 
 existence of a possibility that something might have been done to 
 prevent the death, will not render it less murder. R. v. West, 2 C cfe 
 K. 784. But a woman cannot be convicted even of manslaughter, 
 merely upon evidence that, knowing she was near the time of de- 
 livery, she wilfully abstained from taking the necessary precautions 
 to preserve the life of her child after its birth, in consequence of 
 which it died. R. v. Knights, 2 F. S F. 46. So, if a mortal wound 
 be given to a child whilst in the act of being born, for instance, 
 upon the head as soon as the head appears and before the child has 
 breathed, it may be murder, if the child is afterwards born alive and 
 dies thereof. R. v. Senior, 1 Mood. C. C. 346. But it must be proved 
 that the entire child has actually been born into the world in a 
 
 w. E E 
 
626 Murder. 
 
 living state ; R. v. Poulton, SC.d P. 329 ; and the fact of its having 
 breathed is not a conclusive proof thereof. R. v. Sellis, 7 C. d; P. 
 850 ; 1 Mood. C. C. 850 : R. v. Orutehley, 1 C.&P. 814. There must 
 be an independent circulation in the child,-before it can be accounted 
 alive. R. v. Enoch, b C. & P. 539 : R. v. Wright, ^ C. & P. 754. 
 But the fact of the child's being still connected with the mother by 
 the umbilical cord will not prevent the killing from being murder. 
 R. V. Orutehley, supra: R. v. Reeves, 9 C.& P. 25: R. v. Trilhe, 2 
 Mood. C. C. 260 ; C. & Mar. 650. As to the words " the King's peace," 
 in the definition of murder, they mean merely that it is not murder 
 to kill an alien enemy in time of war ; 3 Inst. 50 ; 1 Hale, 433 ; 
 but killing even an alien enemy within the kingdom, unless in the 
 actual exercise of war, would be murder ; 1 Hale, 433; So also, the 
 killing of a foreigner by a British subject, on land out of the Queen's 
 dominions, is murder, for which the defendant was holden triable in 
 this country under the stat. 9 G. 4, c. 31, s. 7 ; R. v. Aezopardi, 2 
 Mood. C. C. 288 ; \ C. & K. 203 ; and he would be so now, under 24 
 & 25 Vict. c. 100, B. 9 {ante, p. 617) ; and the killing of a foreigner, 
 by a British subject or a foreigner, on board a British ship on the 
 high seas is triable here. R. v. Lopen, R. v. SattUr, Dears. <& B. 525; 
 18 & 19 Vict. c. 91, 8. 21. But where the defendant is a foreigner, 
 who inflicts a blow upon another foreigner in a foreign vessel on the 
 high seas, and the person so struck afterwards lands in England, and 
 dies there, the offence is not cognizable by our law. R. v. Lewis, 
 Dears. & B. 182 ; 26 L. J. (M. C.) 104. 
 
 4. And, lastly, the killing must be committed with malice afore- 
 thought. Malice is either express or implied. Express malice is 
 when one, with a sedate and deliberate mind, and formed design, 
 doth kill another ; which formed design is evidenced by external cir- 
 cumstances discovering that inward intention ; as lying in wait, ante- 
 cedent menaces, former grudges, and concerted schemes to do him 
 some bodily harm. 1 Hale, 451. Neither shall he be guilty of a 
 less crime, who kills another in consequence of such a wilful act as 
 shows him to be an enemy to mankind in general ; as going delibe- 
 rately with a horse used to strike, or discharging a gun amongst a 
 multitude of people. 1 Hawk. c. 29; «. 12. So, if a man resolve to 
 kill the next person he meets, and do kill him, it is murder, although 
 he knew him not ; for it is universal malice. 4 Bl. Com. 200. And 
 it may be necessary here to observe, that no provocation, however 
 great, will extenuate or justify a homicide, where there is evidence 
 of express malice. See R. v. Mason, Post. 132. So, where A. and B. 
 having fallen out, A. said he would not strike, but would give B. a 
 pot of ale to strike him ; upon which B. did strike, and A. there- 
 upon killed him ; this was holden to be murder. 1 Hawh. c. 31, 
 «. 24. 
 
 And in many cases, where no malice is expressed or openly indi- 
 cated, the law will imply it. Thus, where a man wilfully poisons 
 another— in such a deliberate act the law presumes malice, though 
 no particular enmity can be proved. 1 Hale, 455. So if a man kill 
 another suddenly, without any, or without a' considerable provo- 
 cation ; if he kill an officer of justice in the legal execution of his 
 duty; or if, intending to do another felony, he > undesignedly kill a 
 man ; in all these cases the law implies malice, and the offence is 
 murder. 
 
 If two persons mutually agree to commit suicide together, and ac- 
 cordingly take poison or attempt to drown themselves together, but 
 
Murdir. 627 
 
 dnly one of thfem dies, the survivor is guilty of murfer. R. v. Dyson, 
 
 B. (& R. 523 : R. v. Alison, % C. & P. 418. In like manner, where 
 A. procures a drug, and' gives it to B. with her assent, in order that 
 she may take it to procure abortion, and B. believing herself 
 (though' not being) pregnant, takes it for that purpose, and dies 
 from it's eflfects, this, it seems, is murder in A. In such a case, 
 however, a conviction for manslaughter (for which offence only the 
 grand- jury had found a bill) was upheld. R. v. Gay lor, Dears. & B. 
 288. So where an indictment charged W. with murdering herself 
 with arsenic, and the prisoner with inciting her to commit the said 
 murder, and it appeared on the trial that W., who was pregnant, 
 was persuaded by the prisoner to take arsenic for the purpose of 
 procuring miscarriage, that she received the arsenic from him and 
 took it, in his absence, with intent to procure miscarriage, it was 
 held that the prisoner was an accessory before the fact to the self- 
 murder of W. R. V. Russell, 1 Mood. C. C. 356. But where the 
 prisoner, at the request of a pregnant woman who wished to procure 
 abortion, obtained for her a poisonous drug, knowing the purpose 
 for which she wanted it, but being unwilling that she should use it, 
 but she did use it and died in consequence, it was held that the 
 prisoner was not guilty of murder. R. v. Fretwell, L, & C. 161 ; 31 
 L. J. (if. C.) 145. 
 
 As there are very many nice distinctions, however, upon this sub- 
 ject of malice prepense, express and implied, it may be desirable to 
 consider the subject more fully and- minutely, which we shall do 
 under the following heads. 
 
 Killing by Poison.] — Of all the forms of death by which human 
 nature may be overcome, the most detestable is that of poison ; be- 
 cause it can of all others be the least prevented either by manhood 
 or forethought. 3 Inst. 48. And therefore, in all cases where a man 
 wilfully administers poison to another, 1 Hale, 455, or lays poison for 
 him, and either he or another takes it, and is killed by it. Id. 466, the 
 law implies malice, although no particular enmity can be proved. 4 
 Bl. Com,. 34. So, if a person knowingly give poison to A. to ad- 
 minister as a medicine to B., but A. neglecting to do so, it is acci- 
 dentally given to B. by a child or other unconscious agent, this is in 
 law apoisoning by the party himself, as much as if he had adminis- 
 tered it' with his own hands; B. v. Michael, 2 Mood. C. C. 120 ; 9 
 
 C. & P. 356. If, however, it were administered by mistake and with- 
 out gross negligence, or if it were laid with an innocent intention in 
 the place from which the deceased took it, it is merely homicide by 
 misadventure. So, if a physician or surgeon give his patient a potion 
 or plaister to cure him, which, contrary to expectation, kills him, this 
 also is neither murder nor manslaughter, but misadventure. Mir. e. 4, 
 s. 16. A distinction, indeed, has been taken between the administer- 
 ing of a potion, etc., by a regular physician, etc., and one who is not 
 so, and the death in the latter case is said to be manslaughter at the 
 least; Brit, o, 5 ; 4 Inst. 251 ; but Lord Sale very much questions 
 
 *the soundness of this distinction. 1 Hale, 430. And it seems that 
 if a person, whether he be a regular practitioner or not^ honestly and 
 bond fide perform an operation which causes the patient's death, he 
 is not guilty of manslaughter; R. v. Van Butchell, 3 C. S P. 629 ; 
 but if he-be guilty of criminal misconduct; arising- froni gross ignorance 
 or criminal- inattention, then he will be guilty of manslaughter. R. 
 V. Williamson, Id. 635: R. v. Spiller, b C. & P. 333: R. v. Chamber- 
 E E 2 
 
628 Murder. 
 
 lain, 10 Cox, 486. In a modem case, R. v. Long, ^ C. & P. 398' 
 where the defendant, not a regular physician, killed a woman by an 
 application, and the jury found that he entertained a criminal disre- 
 gard of human life, he was convicted of and punished for manslaugliter 
 See R. V. Long, A C. cS; P. 423: R. v. Senior, 1 Mood. C. C. 346: B. v.' 
 Ellis, 2 a & K. 470. In R. v. Webh, 1 M. & Rob. 405, Lord Lywd- 
 hurst laid down the following rule : — " In these cases there is no 
 diflFerence between a licensed physician or surgeon and a person 
 acting as physician 6r surgeon without licence. In either case, if a 
 party, having a competent degree of skill and knowledge, makes an 
 accidental mistake in his treatment of a patient, through which 
 mistake death ensues, he is not thereby guilty of manslaughter; but 
 if where proper medical assistance can be had, a person totally 
 ignorant of the science of medicine takes on himself to administer a 
 violent and dangerous remedy to one labouring under disease, and 
 death ensues in consequence of that dangerous remedy having been 
 so administered, then he is guilty of manslaughter. If I entertained 
 the least doubt of this position, I might fortify it by referring to the 
 opinion of Lord EUemhorough in R. v. Williamson. I shall leave it 
 to the jury to say, first, whether death was occasioned or accelerated 
 by the medicines administered ; and if they think it was, then I shall 
 tell them, secondly, that the prisoner is guilty of manslaughter, if 
 they think that in so administering the medicine he acted with a 
 criminal intention or from very gross negligence." See also R. v 
 Spilling, 2 M. & Rob. 107 : R. v. Orick, \ F.SF. 519 : R. v. Crook, 
 Id. 521 : R. V. Markuss, i: P. & F. 356. Upon such a charge, evi- 
 dence cannot be gone into, on either side, of former cases treated 
 by the prisoner. R. v. Whitehead, 3 C.&K. 202. The prisoner, 
 a druggist, was in the habit of using bottles of a peculiar make 
 and colour in which to send out poisons from his shop. The de- 
 ceased sent to the prisoner for aconite, to be used as a liniment, 
 and henbane, to be taken internally. He also sent two bottles, one 
 for the aconite and one for the henbane, both being bottles of the 
 ordinary kind, but the bottle for the henbane being labelled "hen- 
 bane," and also with the words " 30 drops at a time." The prisoner, 
 by mistake, put the aconite in the henbane bottle, deceased took a 
 dose of it, and was poisoned. On the trial of the prisoner for man- 
 slaughter, Erie, C. J., put it to the jury that they ought not to call 
 upon the prisoner for his defence, and that they could not convict, 
 unless there was such a degree of complete negligence as the law 
 meant by the word felonious. The prisoner had been put out of his 
 ordinary course by the deceased's sending his own bottles, and 
 although, there was no doubt negligence in not observing the label 
 on the bottle, yet the deceased had for years been sending to the 
 shop, for aconite and only rarely for henbane. R. v. Noakes, iF.<& 
 F. 920. And on an indictment for manslaughter against a medical 
 man by administering poison by mistake for some other drug, it is 
 not sufficient for the prosecution merely to show that the prisoner, 
 who dispensed his own drugs, supplied a mixture which contained a 
 large quantity of poison, they are bound also to show that this hap- 
 pened through the gross negligence of the prisoner. R. v. Spencer, 
 10 Cox,b%b,per Willes, J. 
 
 Killing by Fighting.] — Killing by fighting may be either murder, 
 or manslaughter, or homicide se defmdendo, according to circum- 
 stances. 
 
Murder. 629 
 
 , 1. If two persons quarrel and afterwards fight, and one of them 
 kill the other — in such a case, if there intervened, between the 
 quarrel and the fight, a sufficient cooling time for passion to subside 
 and reason to interpose, the killing would be murder ; Post. 296 ; 1 
 Hah, 453 ; but if such time had not intervened — if the parties, in 
 their passion, fought immediately, or even if, immediately upon the 
 quarrel, they went out and fought in a field (for this is deemed a 
 continued act of passion), the killing in such a case would be man- 
 slaughter only, 3 Inst. 61 ; 1 Hah, 453 ; 1 Hawh. c. 31, s. 29 ; Fast. 
 295, whether the party killing struck the first blow or not. Fast. 
 296; l^aZe, 466. 
 
 Therefore, if two persons deliberately fight a duel, and one of them 
 be killed, the other and his second are guilty of murder, 1 Hale, 442, 
 452; 1 Hawh. c. 31, s. 81 ; see B. v. Onehy, 2 Str. 766, no matter 
 how grievous the provocation, or by which party it was given. 3 
 East, 581. The second of the deceased also is deemed guilty of 
 murder, as being present aiding and abetting ; although Lord Hale 
 seems to think the rule of law, as to principals in the second degree, 
 too far strained in that case. 1 Hale, 442, 452. See R. v. Murphy, 
 6 adi P. 103 : R v. Young, 8 C. <& P. 644: R. v. Ouddi/, \ C. & 
 K. 210. 
 
 And even in the case of a sudden quarrel, where the parties im- 
 mediately fight, the case may be attended with such circumstances as 
 will indicate malice on the part of the party killing ; and the killing 
 then would be murder, and not merely manslaughter. If, for in- 
 stance, the party killing began the attack under circumstances of 
 undue advantage — as if A. and B. quarrel, and A. draw his sword and 
 make a pass at B., and B. thereupon draw his sword and they fight, 
 and B. is killed : A. would be guilty of murder ; for his making the 
 pass before B. had drawn his sword, shows that he sought his blood. 
 Fast. 296. So, where A. and B. quarrelled, and A. threw a bottle at 
 B. and then drew his sword, and B. then threw the bottle back at A. 
 and woimded him, upon which A. immediately stabbed him ; this was 
 holden to be murder. R. v. Mawgridge, Kel. 128. But if the parties 
 at the commencement attack each other upon equal terms, and after- 
 wards, in the course of the fight, one of them in his passion snatch 
 up a deadly weapon and kill the other with it ; this would be man- 
 slaughter only. 1 East, P. C. 242 : R. v. Taylor, 5 Burr. 2793 : 
 R. V. Anderson, 1 Russ. 531 : R. v. Kessal, I C. & P. 437. Thus 
 where after mutual blows between the defendant and the deceased 
 the defendant knocked the deceased down, and, after he was upon the 
 ground, stamped upon his stomach and belly with great force, and 
 thereby killed him : this was held to be only manslaughter. R. v. 
 Ayes, R. <& R. 166. Where the defendant and others quarrelled in a 
 public-house, and there was an afiray amongst them, and the defendant 
 threw the deceased on the ground and was beating him severely, when 
 some person calling to him not to murder the man, he said " D — him, 
 I will murder him," upon which one of the party gave the defendant 
 a blow and knocked him down ; the defendant then went into the 
 yard, and in about a minute returned in a violent passion with a 
 pitchfork ; in the meantime the deceased had armed himself with a 
 fire-shovel, and had struck one of the defendant's party on the head, 
 when the defendant, not seeing the blow, returned from the yard, and 
 from behind ran one of the grains of the fork into the deceased's 
 temple, of which he died ; it w^as doubted by some of the judges 
 whether this was more than manslaughter, and accordingly the de- 
 
630 .Murder. 
 
 fendant was recommended for a conditional pardon. R. v. Satihin 
 B. & R. 43. ' 
 
 So, if there be any other circumstances in the case indicative of 
 malice in the paa-ty killing, it will be murder. As, for instance, if 
 two persons fight upon a sudden quarrel, and be separated, and one of 
 them afterwards, having provided himself with a deadly weapon, lies 
 in wait for the other, to have an opportunity, thus armed, to renew 
 the quarrel, and they accordingly meet, quarrel, and fight, and the 
 man who is armed kills the other, this is murder. See R. v. jSnow, 
 1 Leach, 151 ; 1 East, P. C. 244. So, if two persons fight from 
 malice, and pretend or feign a reconciliation, and they afterwards 
 meet and suddenly fight upon the score of the old malice, and one of 
 them be killed, this is murder, and not merely manslaughter. \Hak, 
 451. So, if B. challenge A., and A. refuse to meet him, but tell him 
 that he shall be on his way to such a place upon business at such a 
 time, and B. meet him on his way and assault him, and they fight, 
 and A. kills B. : if it appear that A. made this communication for the 
 purpose of evading the law, by giving the fight the appearance of s 
 sudden quarrel, the killing would be murder ; but if the communica- 
 tion were made undesignedly it would be manslaughter lOnly, 1 
 Hawk. c. 31, ii. 25. 
 
 2. A tilt or toumament, the martial diversion of our ancestors, was 
 nevertheless an unlawful act : and so are boxing and sword-playing, 
 the succeeding amusements of their posterity : gee R. v. Perleins, 4 
 a & P. 537 : R. V. Hmrgrave, 5 C. & P. 170 : R. v. Murphy, 6 C. (6 
 P. 103; therefore, if a knight in the former case, or a gladiator in the 
 latter, be killed, such killing is manslaughter. 4 Bl. Com. 183. And 
 in cases of this kind, however " fair " the fight may have been, all 
 who are present at it and parties to it are equally guilty of man- 
 slaughter. R. V. Turner, ^F.& F. 339. It is said, however, that if 
 the king command or permit such diversion, the act beiijg in that 
 case lawful, the killing would be misadventure only. Post. 259 ; 
 emit. Hah, 472. And a sparring match with gloves fairly conducted 
 in a private room is not unlawful, and therefore death caused hy an 
 injury received during such a match, does not amount to man- 
 slaughter. R. V. Young, 10 Cox, 371. But all struggles in anger, 
 whether by fighting, wrestling, or in any other mode, are unlawful, 
 and death occasioned by tliem is manslaughter at the least. R. v. 
 Camniff, d C. S P. 359. 
 
 3. If two men fight upon a sudden quarrel, and one of them after 
 awhile endeavour to avoid any further struggle, and retreat as far as 
 he can, until at length no means of escaping his assailant remain to 
 him, and he then turn round and kill his assailant in order to avoid 
 destruction ; this homicide is excusable, as being committed in self- 
 defence ; Fast. 277 ; and, malice apart, it is litfle matter, in such a 
 case, which struck the first blow at the hegioniug of the contest. Id,; 
 1 Hale, 482 : but see 1 Hawk. c. 29, s. 17. And the same, of course, 
 where one man attacks another, and the latter, without fighting, flies, 
 and then turns round and kills his assailant, as above mentioned. 
 But, in either of these cases, to show that it was homicide se defoh 
 dendo, it must appear that the party killing had retreated either as 
 far as he could, by reason of some wall, ditch, or other impediment, 
 or as far as the fierceness of the assault would permit him ; 1 Sale, 
 481, 483 ; for the assault may have been so fierce as not to allow him 
 to yield a step, without manifest danger of his life, or enormous 
 bodily harm ; and then, in his defence, if there be no other way of 
 saving his own life, he may kill his assaUant instantly. The dis- 
 
Murchh 631 
 
 tinction between this kind of homicide and manslaug]rter is, that 
 here the slayer could not otherwise escape, although he would ; in 
 manslaughter he would not escape if he could. 
 
 And, as the manner of the defence, so is also the time, to be con- 
 sidei'ed; for if the person assaulted do not fall upon the aggressor, 
 until the affray is over, or when he is running away, that is revenge, 
 and not defence. 4 Bl. Com. 185. Neither, under the cover of self- 
 defence, will the law permit a man to screen himself from the guilt of 
 deliberate murder ; for if A. and B. agree to fight a duel, and A. give 
 the first onset, and B. retreat as far as he safely can, and then kill A., 
 this is murder, because of the previous malice and concerted design. 
 1 Hale, 479. 
 
 Under this excuse of self-defence, the principal civil and natural 
 relations are comprehended ; therefore master and servant, parent 
 and ehild, husband and wife, killing an assailant in the necessary 
 defeiice of each other respectively, are excused : the act of the rela- 
 tion assisting being construed the same as the act of the party him- 
 self. 1 Sale, 484; 4 Bl. Com. 182. 
 
 There is one species of homicide se defendendo, where the party 
 slain is equally innocent as he who occasions his death ; as, for in- 
 stance, the case mentioned by Lord Bacon {Elem. c. 5 ; see also 
 1 Hawk. c. 28, s. 26), where two persons being shipwrecked, have 
 got on the same plank, but, finding it not able to save them both, 
 one of them thrusts the other from it, and he is drowned ; this homi- 
 cide is excusable through unavoidable necessity, and upon the prin- 
 ciple of self-defence. 
 
 4. If, when two persons are fighting, a third come up, and take the 
 part of one of them, and kill the other ; this will be manslaughter in 
 the third party ; 1 Hawk. c. 31, ss. 35, 36 ; and murder or man- 
 slaughter in the person whom he assisted, according as the fight was 
 deliberate and premeditated, or upon a sudden quarrel. Id. s. 55. If 
 the fighting, however, were deliberate, or otherwise of malice, and the 
 third party, when he interfered, knew it to be so, the killing would 
 be murder, both in the party who thus interfered, and in the person 
 whom he assisted. 1 East, P. C. 291, 292. If, on the other hand, 
 the third party, who thus interferes, be kUled, it is but manslaughter. 
 Id.; and see 12 Co. 87; EeL 59. 
 
 EiUing upon Provocation.} — No provocation whatever can render 
 homicide justifiable, or even excusable ; the least it can amount to is 
 manslaughter. If a man kill another suddenly, without any, or, indeed, 
 without a considerable provocation, the law implies malice, and the 
 homicide is murder ; but if the provocation were great, and such as 
 must have greatly excited him, the killing is manslaughter only. 
 Kel. 135; 1 Hale, 466; Post. 290. In considering, however, whether 
 the killing upon provocation amount to murder or manslaughter, the 
 instrument wherewith the homicide was efiiected must also be taken 
 into consideration; for if it were effected with a deadly weapon, the 
 provocation must be great indeed to extenuate the offence to man- 
 slaughter; if with a weapon or other means not likely or intended 
 to produce death, a less degree of provocation will be sufficient; in 
 fact, the mode of resentment must bear a reasonable proportion to 
 the provocation, to reduce the offence to manslaughter. Where some 
 provoking words being used by a soldier to a woman, she gave him 
 a box on the ear, and the soldier immediately gave her a blow with 
 the pommel of his sword on the breast, and then ran after her, and 
 
632 Murder. 
 
 stabbed her in the back, this was at first deemed murder; but it ap- 
 pearing afterwards that the blow given to the soldier was with an 
 iron patten, and that it drew a great deal of blood, the offence was 
 holden to be manslaughter only. R. v. Steadman, Fast. 292. Where 
 two soldiers demanded to be admitted to a public-house to drink, and 
 the landlord refused, because it was eleven o'clock at night; one of 
 them, however, upon the door being afterwards opened to let out 
 company, rushed in, and whilst the landlord was struggling to get 
 him out, the other soldier struck the landlord on the head with a 
 sharp instrument and killed him; this was holden to-be murder, not- 
 withstanding the struggle with the other soldier; besides, the land- 
 lord had a right to put him out of his house. It. v. Willoughby, 1 
 Jiast, P. C. 288; 1 Buss. 517. So, where a park-keeper, having found 
 a boy stealing wood, tied him to a horse's tail, and dragged him along 
 the park, and the boy died of the injuries he thereby received: this 
 was holden to be murder. 1 Sale, 454. So, i^U other cases, where, 
 upon a sudden provocation, one beats another in a cruel and unusual 
 manner, so that he dies, it is murder. 4 Bl. Com. 199: and see R, v. 
 Tranter, 1 Str. 499; Fost. 292. An unwarrantable imprisonment of 
 a man's person however has been holden sufficient provocation to 
 make a killing, even with a sword, manslaughter only. R.y.Buchmr, 
 Sty. 467: R. v. Withers, 1 East, P. C. 233. Therefore, where a con- 
 stable took a man without warrant, upon a charge which gave him no 
 authority to do so, and the prisoner ran away, and J. S., who was with 
 the constable all the time, ran after the prisoner, who, to prevent his 
 being retaken, killed J. S. ; it was holden to be manslaughter only, 
 although, whilst under the charge of the constable, the prisoner struck 
 the man who gave the charge, because a blow under the provocation 
 of the illegal arrest would not justify the constable in detaining him, 
 i'.nless the blow were likely to be followed by dangerous consequences, 
 and formed a new and distinct ground of detainer. R. v. Ourvan, 1 
 Mood. C. C. 132. See R. v. Thompson, Id. 80, post, p. 641. Where A., 
 to prevent B. from fighting with his brother, laid hold of him and 
 held him down, but struck no blow, upon wliich B. stabbed A.; it 
 was holden, that if A. did nothing more than was necessary to pre- 
 vent B. from beating his brother, and had died of the stab, the offence 
 of B. would have been murder; but that if A. did more than was 
 necessary to prevent the beating of his brother, it would have been 
 manslaughter only. R. v. Brown, 5 C. <& P. 120. If a man pull 
 another's nose, or offer him any other great personal indignity, and 
 the other thereupon immediately kill him, it is manslaughter only. 
 Kel. 135; 4 Bl. Com. 191. Or if a man take another in adultery with 
 his wife, and kill him directly upon the spot, this is manslaughter 
 merely. 1 Sale, 486; R. v. Manning, T. Raym. 212; 1 Ventr. 159: 
 R. V. Kelly, i C. & K. 814. So, if a father see another person in the 
 act of committing an unnatural crime with his son, and instantly kill 
 him, it is manslaughter only : but if, hearing of it, he go in quest of 
 the party and kill him, it is murder. R. v. Fisher, % C. & P. 182. 
 Where a boy, after fighting with another, ran home bleeding to his 
 father, and the father immediately took a small cudgel, and ran three- 
 quarters of a mile to the place where the other boy was, and struck 
 him a single blow of the stick, of which blow the boy afterwards 
 died; this blow was holden to be manslaughter only. R. v. Rowley, 
 12 Co. 87; and see Fost. 294. Where a mob threw a pickpocket into 
 a pond for the purpose of ducking him, but he was unfortunately 
 drowned; this was holden to be manslaughter. R. v. Fray, 1 East, 
 
Murder. 633 
 
 P. C. 236. But it may safely be laid down as a general rule, that 
 no words or gestures, however opprobrious or provoking, will be con- 
 sidered in law to be provocation sufficient to reduce homicide to 
 manslaughter, if the killing be effected with a deadly weapon, or an 
 intention to do the deceased some grievous bodily harm be otherwise 
 manifested; R. v. Welsh, 11 Cox, 336; but if effected with a blow of 
 a fist, or with a stick, or other weapon not likely to kill, it is man- 
 slaughter only, i^osi. 290, 291; 1 BaZe, 455. And if there be a pro- 
 vocation by blows, which are not sufficiently violent in themselves 
 to reduce the killing below the crime of murder, yet if they be ac- 
 companied by very aggravated words and gestures, this may make 
 it manslaughter only. JR. v. Sherwood, 1 C. & K. 566 : R. v. Smith, 
 AF. <& F. 1066. In the case last named the assault was very slight, 
 although of a very offensive nature. Spitting in the prisoner's face, 
 but accompanied by words of great provocation. 
 
 But in all cases, to feduce a homicide upon provocation to man- 
 slaughter, it is essential that the battery, wounding, etc., appear to 
 have been inflicted immediately upon the provocation being given ; 
 for if there be a sufficient cooling time for passion to subside and 
 reason to interpose, and the person so provoked afterwards kill the 
 other, this is deliberate revenge, and not heat of blood, and accord- 
 ingly amounts to murder. Fost. 296. See R. v. Thomas, 7 C. &. P. 
 817. The prisoner and the deceased, who were previously on inti- 
 mate terms, were at a public-house drinking, when a scufB^e ensued, 
 and the deceased struck the prisoner in the eye and gave him a 
 black eye; the prisoner called for the police, and went away upon 
 the policeman coming up; in about five minutes however he returned 
 and stabbed the deceased with a knife which he usually carried about 
 him: Lord Tenterden, C. J., said that it was not every slight pro- 
 vocation, even by a blow, which will, when the party receiving it 
 strikes with a deadly weapon, reduce the offence from murder to man- 
 slaughter; and that, if there had been any evidence of an old grudge 
 between the parties, the crime would probably be murder: but he left 
 it to the jury to say, whether in the interval during which the prisoner 
 was absent, there was time for his passion to cool and reason to gain 
 dominion over his mind; if not, they should find him guilty of man- 
 slaughter only. R. V. Lynch, b C. & P. 324. Again, where the pri- 
 soner was at the house of the deceased's mother, who desired the 
 deceased to turn the prisoner out, and he did so, giving him a kick at 
 the time, upon which the prisoner said he would make him remember 
 it, and went home, about 300 yards, passed through his bedroom to a 
 kitchen adjoining, and into the pantry, where he kept a knife, and 
 having got it, returned hastily, and met the deceased coming towards 
 him with his hat, when a conversation ensued, and they walked 
 together, when the deceased giving the prisoner his hat, the prisoner 
 swore he would have his rights, and stabbed the deceased in two 
 places, saying he had served him right: after this the prisoner ran 
 home, repassed through the rooms to the pantry, and then went to 
 bed, where he was shortly afterwards apprehended, and the knife 
 found on the shelf in the pantry; Tindal,t.3., told the jury, that the 
 principal question was, whether the wounds were given by the pri- 
 soner whilst smarting under a provocation so recent, as showing that 
 he might be considered at the moment not master of his understand- 
 ing, in which case it would be manslaughter only; or whether, after 
 the provocation there had been time for the blood to cool and reason 
 to resume its sway, before the wound was inflicted, in which case 
 
 £ £ 5 
 
634 Murder, 
 
 tlie offence would be murder; the jury found the prisoner guilty of 
 murder. R. v. Sayward, 6 C. (& P. 157. If there be evidence of 
 express malice, the liilling will be murder, however great the provo- 
 cation. R. V. Mason, Foat. 132: and see Post. 296: R. y. Kirkham, 8 
 C. & P. 115. 
 
 Killing by Oorreetum.'] —Where a parent is moderately correcting 
 his child, a master his servant or scholar, or an officer punishing a 
 criminal, and he happens to occasion his death, it is only misadven- 
 ture; but if he exceed the bounds of moderation, either in the 
 manner, the instrument, or the quantity of punishment, and death 
 ensue, it is manslaughter at the least, and in some cases (according 
 to the circumstances) murder. 1 Hale, 473, 474. Where a master 
 corrected his servant with an iron bar, and a schoolmaster stamped 
 on his scholar's belly, so that each of the sufferers died ; these were 
 justly holden to be murders; because the correction being excessive, 
 and such as could not proceed but from a bad heart, it was equiva- 
 lent to a deliberate act of killing. Id.; Fast. 262. So, in all cases 
 where the correction is inflicted with a deadly weapon, and the party 
 dies of it, it will be murder; if with an instrument not likely to kill, 
 though improper for the purpose of correction, it will be man- 
 slaughter. Fast. 262. See R. v. Hopley, iF.&F. 201. A mother 
 being angry with one of her children, took up a poker, and on his 
 running to the door of the room, which was open, threw it after him 
 and killed another child who was entering the room at the time; and 
 it was holden to be manslaughter, although she did not intend to hit 
 the child she threw the poker at, but merely to frighten him; because 
 it was an improper mode of correction. R. v. Conner, 1 C.t&P. 436. 
 Where the father of a child two years and a half old beat it with a 
 ' strap on the lower part of its back and on its thighs on its commit- 
 ting some childish fault, and the death of the child was accelerated 
 by the beating, this was held to be manslaughter. R. v. Griffm, 11 
 Cox, 402. For the prisoner it was urged that there was no ease to 
 go to the jury, as the father had a right to correct his child, but 
 Martin, B., after consulting with Willes, J., ruled that the law as to 
 correction had reference only to a child capable of appreciating cor- 
 rection, and not to an infant two years and a half old, and that al- 
 though a slight slap might be lawfully given to an infant by her 
 mother, more violent treatment of an infant so young by her father 
 would not be justifiable. Id. Where a master struck his servant 
 with one of his clogs, because he had not cleaned them, and death 
 unfortunately ensued ; it was holden to be manslaughter only, because 
 the clog was very unlikely to cause death, and the master conse- 
 quently could not have the intention of taking away the servant's 
 life by hitting him with it. R. v. Txumer, Comb. 407, 408: amd see 
 R. V. Wigg, 1 Leach, 378, n.: Anon. 1 East, P. C. 261: R. x.LeggeU, 
 8 as P. 191. 
 
 Killing in Defence of Property, etc.l — If any person attempt to rob 
 or murder another in or near the highway, or in a dwelling-house, 
 or attempt burglariously to break any dwelling-house, in the night- 
 time, and be killed in the attempt, the slayer shall be acquitted and 
 discharged; for the homicide is justifiable, and the kUling is without 
 ielony. See 24 & 25 Vict. c. 100, s. 7 (post, p. 656): amd see 1 Hale, 
 481, etc. And the same, where a man is killed in attempting to burn 
 a house, 1 Sale, 488, or where a woman kills a man who attempts to. 
 
Murder, 655 
 
 ravish her; Bac. Elem. 34; 1 Eawlc. c. 28, s. 22; or where a man is 
 killed in attempting to break open a house in the day-time, with 
 intent to rob, 1 Hale, 488, or to commit any other forcible and atro- 
 cious crime. Bract. 156; Fast. 273; Kel. 129; 1 Hale, 484. See 
 M. V. Levett, Oro. Car. 538; Fost. 299 : JR. v. Ford, Kel. 51. And not 
 only the party whose person or property is thus attacked, but his 
 sei-vauts or other members of his family, and even strangers who are 
 present at the time, are equally justified in killing the assailant. 1 
 Hale, 481, 484; Fast. 274. The above rule, however, does not ex- 
 tend to felonies without force, such as picking pockets, 1 Hale, 488, 
 nor to misdemeanors of any kind: and even in cases within the rule, 
 it must be proved that the intent to commit such forcible and 
 atrocious crime was clearly manifested by the felon, 1 Hale,, 484, 
 otherwise the homicide will be manslaughter at least, if not murder. 
 Where a servant set to watch in his master's garden at night, shot 
 a person whom he saw going into his master's hen-roost ; it was 
 holden that he was not justified in so doing, unless he had fair 
 ground to believe his own life to be in actual danger. B. v. Scully,, 
 IC&P. 319. See B. v. Dadsm, 2 Den. 35; iC.<S:K. 148; 20 L. J. 
 {M. C.) 57. In cases within the rule, it may be necessary to ob- 
 serve, that the party whose person or property is attacked: is not 
 obliged to retreat, as in other oases of self-defence, but may even 
 pursue the assailant until he find himself or his property out of dan- 
 ger. Fast. 273. 
 
 What we have now said relates to felonies by force. In the case 
 of forcible misdemeanors, such as trespass in taking goods, although 
 the owner may justify beating the trespasser, in order to make him 
 desist, yet, if he kill him, it will be manslaughter; 1 Hale, 485, 486; 
 or if, instead of beating him, he attack him with a deadly weapon, it 
 would perhaps be murder, particularly if the wound were given after 
 the party had desisted from the trespass. Id. 473. See B. v. Smith, 
 1 Buss. 546. But in defence of a man's house, the owner or his family 
 may kill a trespasser who would forcibly dispossess him of it, in the 
 same manner as he might, by law, kill in self-defence a man who 
 attacks him personally ; with this distinction, however, that in 
 defending his house, he need not retreat, as in othet cases of se de- 
 fendendo, for that would be giving up his house to his adversary. 1 
 Hale, 485, 486. As to personal assaults, where the party assaulted 
 kills his adversary, we have already considered them under the fore- 
 going heads. 
 
 Killing without Intention whilst doing another Act.'\—li a person, 
 whilst doing or attempting to do another act, undesignedly kill a 
 man — if the act intended or attempted were a felony, the killing is 
 murder; if unlawful {malum in se'), but not amounting to felony, the 
 killing is manslaughter: if lawful (that is, not being malum in se), 
 homicide by misadventure merely. If a man deliberately shoot at A., 
 and miss him, but kill B., this is murder. Fost. 261 ; 1 Hale, 438, 441 . 
 So, if he stab at A., and by accident strike and kill B., it is murder. 
 B. V. Hvmt, 1 Mood. C. C. 93. If a man lay poison for A., and B. 
 (against whom he had no malicious intent) take it, and it kill him, 
 this is likewise murder. 1 Hale, 436: B. v. Savmders, Plowd. 474: 
 B. V. Gore, 9 Co. 81. So, if whilst two men are deliberately fight- 
 ing, and a third go between them to part them, and be killed by one 
 of them, it is murder, 1 Hale, 441, whether he were killed accident- 
 ally or designedly. If a man shoot at another's poultry, with intent 
 
636 Murder. 
 
 to steal them, and by accident kill a man, it is murder; if withont 
 such intent it is manslaughter ; the act of shooting at the poultiy 
 being unlawful, but not felonious. Fast. 258. If a man throw a 
 stone at a horse, and it hit the rider and kill him, it is manslaughter. 
 1 Hale, 39. If, when engaged in an unlawful or dangerous sport a 
 man kill another by accident, it is manslaughter; Fast. 259, 260, 261; 
 1 Sale, 472, 473; 1 Hawk c. 29, s. 5; if the sport were lawful and 
 not dangerous, it would be homicide by misadventure merely. Fogt. 
 260. So, if a man, intending to kill a person attempting to commit 
 a forcible and atrocious crime against his person or property (see 
 ante, p. 634), by mistake kill one of his own family, it is homicide 
 by misadventure merely. See Oro. Car. 538 ; Fast. 299. Where a 
 man is at work with a hatchet, and the head of it flies off and kills a 
 bystander, this is homicide by misadventure. 1 Hawk. c. 99, 8. 2. 
 So, if a man, shooting at game, by accident kill another, it is homi- 
 cide by misadventure merely, even although the party be unqualified; 
 Fast. 259; for the use of fire-arms by an imqualified person is merely 
 a prohibited act, and not malum in se. 
 
 These are two seeming exceptions, however, to the above rule. 
 
 First. If two persons be fighting under such circumstances, that if 
 one were killed it would be manslaughter only in the other; if in 
 such a case an innocent party be unintentionally killed by one of 
 them, it is manslaughter only. Fast. 262 : R. v. Brown, 1 Leach, 148. 
 This perhaps is not strictly an exception; for the act in which the 
 parties are engaged, namely, the fighting, is not in itself felonious, 
 although the result of it may be so. 
 
 Secondly. Where an act, in itself lawful, is at the same time dan- 
 gerous, it must appear, in order to render an unintentional homicide 
 from it excusable, that the party, whilst doing the act, used such a 
 degree of caution as to make it improbable that any danger or injury 
 should arise fi-om it to others; if not, the homicide wiU be man- 
 slaughter at the least. For instance, if a workman thi-ow stones or 
 rubbish, etc., from a house, and thereby kill a person pa,ssing under- 
 neath it, it is murder, manslaughter, or homicide by misadventure, 
 according to the degree of precaution taken by him that no person 
 should be injured by them, and of the necessity of such precaution. 
 If he did it without previously warning the persons beneath, and at a 
 time when it was likely that persons were passing, it would be mur- 
 der; 3 Inst. 57 ; if at a time when it was not likely that any persons 
 were passing, it would be manslaughter ; Fost, 262 ; if in a retired 
 place, where no persons were in the habit of passing, or likely to 
 pass, it would be misadventure merely. Fost. 262 ; 1 Hale, 472, 475. 
 But if he previously gave warning to the persons beneath,— then, if 
 it happened in a countrj' village, where few persons pass, it is mis- 
 adventure only: Fost. 262; 1 Hale, 472, 475: if in London, or other 
 popidous towns, jBTe/. 40, at a time when the streets ai-e full, i^'osi. 268, 
 it would be manslaughter. 
 
 If a man, breaking an unruly or vicious horse, ride him amongst a 
 crowd, and the horse kick a man and kill him, this is murder, if the 
 rider brought the horse into the crowd with intent to do mischief, or 
 even to divert himself by frightening the crowd ; 1 Hawk. c. 31, 
 s. 68 ; manslaughter, if done heedlessly and incautiously only. 1 East, 
 P. a 231. See 1 Hale, 475 ; 4 Hawk. c. 29, s. 12. 
 
 If a man, driving a cart or other carriage, drive it over another man 
 and kiU him — if he saw or had timely notice of the probable mischief, 
 and yet drove on, it would be murder ; 1 Hale, 475 ; Fost. 263 ; if he 
 
Murder. 637 
 
 purposely drove it fariously in amongst a crowd, it would probably be 
 murder; semble, if in a street where persons were much in the habit 
 of passing, it would be manslaughter; per Holt, C. J., 1 East, P. V. 
 263 ; if in a place where people did not usually pass, misadventure 
 merely, provided he took that care which persons in similar situations 
 are accustomed to do. Anon., 1 East, P. C. 261. Upon an indict- 
 ment for manslaughter, it appeared that the deceased was walking in 
 the road drunk, when the prisoner, who was in a cart driving two 
 horses without reins, and going at a furious pace, ran over him, and 
 killed him : the prisoner had called out twice to the deceased, who, 
 from the state in which he was, and the pace of the horses, could not 
 get out of the road: Garrow, B., held this to be manslaughter. R. v. 
 Walker, \C.&P. 320. Two persons were riding furiously on horse- 
 back along the road ; one passed the deceased, who was also on 
 horseback, but the other rode against him, and both fell, the deceased 
 being killed by the concussion : Patteson, J., directed an acquittal of 
 the first who passed ; and as to the second, told the juiy to find him 
 guilty of manslaughter, if they thought that by furious riding he ran 
 against the deceased; but to acquit him if they thought that the 
 deceased's horse was unruly, and ran against the horse of the prisoner. 
 
 B. V. Mastin, & C. & P. 396. A foot-passenger was walking along 
 the road by lamp-light, when the defendant, who was near-sighted, 
 drove along at the rate of eight or nine miles an hour, sitting at the 
 time at the bottom of his cart, and ran over the foot-passenger, and 
 killed him ; and it was holden to be manslaughter. B. v. Grout, 6 
 
 C. t& P. 629. If the driver of a carriage race with another carriage 
 and urge his horses to so rapid a pace that he cannot control them, 
 it is manslaughter in both drivers, if, in consequence, the can-iage 
 upset and a passenger be killed. JR. v. Timmins, 1 C. <& P. 499 : R. 
 V. Swindall, i C. & K. 230. And it is no defence to an indictment 
 for manslaughter, where the death of the deceased is shown to have 
 been caused in part by the negligence of the prisoner, that the de- 
 ceased was also guilty of negligence, and so contributed to his own 
 death. R. v. Swindall, 2 C.& K. 230. In summing up in that case, 
 Pollock, C. B., said : " The prisoners are charged with contributing 
 to the death of the deceased by their negligence and improper con- 
 duct ; and if they did so, it matters not whether he was deaf, or drunk, 
 or negligent, or in part contributed to his own death; for in this 
 consists a great distinction between civil and criminal proceedings. 
 If two coaches run against each other, and the drivers of both are to 
 blame, neither of them has any remedy for damages against the 
 other. But in the case of loss of life, the law takes a totally different 
 view; for there each party is responsible for any blame that may 
 ensue, however large the share may be ; and so highly does the law 
 value human life, that it admits of no justification wherever life has 
 been lost, and the carelessness or negligence of any one person has 
 contributed to the death of another person." Id. This ruling was 
 cited hyMellor, J., apparently with approval, in R. v. Dant, 34 L. J. 
 (M. C) 119, and Byles, J., so laid down the law to the grand jury in 
 directing them in the case of R. v. Hutchinson, 9 Cox, 555. Willes, J., 
 however, has held that where the deceased has contributed to his death 
 by his own negligence, although there may have been negligence on 
 the part of the prisoner, the latter cannot be convicted of manslaughter, 
 observing, that until he saw a decision to the contrary, he should 
 hold that a man was not criminally responsible for negligence for 
 which he would not be responsible in an action. ' R. v. Birchall, 4 
 
638 Murder. 
 
 F. c6 F. 1087. If a commoner turns out on a common, across which 
 there are public footpaths, a horse which he Icnows to be vicious, 
 and the horse kicks and kills a child, the commoner ia liable to be 
 convicted of manslaughter, even though the child has strayed on to 
 the common a little off the path. R. v. Dan% L. & C. 5&1 ; 34 L. J. 
 (M. C.) 119. To make the captain of a vessel liable for manslaughter 
 in causilig a person to be drowned by ruaniog dovn a boat in which 
 he was, it was held that it must be shown that the captain did gome 
 act which conduced to the death; and that a mere omission to do the 
 whole of his duty was not sufficient. R. v. Green, 7 C. <& P. 156 : 
 R. v. Allen, Id. 153 : see R. v. Barrett, 2 0. <6 .S". 343 : R. v. Haines, 
 Id. 368. There is, however, no foundation in law for the general 
 proposition, that without an act of commission there can be no man- 
 slaughter ; on the contrary, the doctrine is well established, that what 
 constitutes murder, being by design and of malice prepense, as de- 
 fined by the law, constitutes manslaughter when arising from culpable 
 neglect of duty. Therefore, where it appeared that the deceased was 
 employed with others in walling the inside shaft of a colliery, and 
 that it was the duty of the defendant to place a stage on the mouth 
 of the shaft, and the death of the deceased was tlie direct conse- 
 quence of the negligent omission on the part of the defendant to 
 perform that duty, he was held to have been properly convicted of 
 manslaughter. R. v. Hughes, Dears. c6 B. 248 ; 26 L.J. {M. C.) 202 : 
 see R. V. Gregory, IF. & F. 153. Where, however, the prisoner was 
 employed by the owner of a tramway crossing a public road to 
 warn persons when trucks were crossing the road, with strict orders 
 never to be absent from his post, and the deceased was killed by some 
 trucks, which were travelling on the tramway and crossing the road, 
 of the approach of which he had received no notice from the prisoner 
 who was absent from his duty ; it was held, that there being no duty 
 imposed by statute upon the owner of the tramway to place a watch- 
 man where the tramway crossed the road, the prisoner was merely 
 the private servant of such owner, and that, consequently, his negli- 
 gence did not constitute such a breach of duty as to make him guilty 
 of manslaughter. R. v. Smith, 11 Cox, 210, per Lush, J. A young 
 unmarried woman being about to be confined, returned to the house 
 of her stepfather and mother. There she was taken in labour, during 
 her stepfather's absence, and the mother did not take ordinary care 
 to procure the assistance of a midwife, though she could have got 
 one had she wished to do so. In consequence of such want of as- 
 sistance the daughter died in her confinement. There was no evi- 
 dence that the mother had any means of paying for the midwife's 
 services. It was held, under these circumstances, that there was no 
 legal duty on the part of the mother to call in a midwife, and conse- 
 quently no such breach of duty as to render her liable to be convicted 
 of manslaughter. R. v. Shepherd, L. & C. 147 ; 31 L. J. {M. C.) 102. 
 The defendant made fireworks, contrary to stat. 9 <£ 10 TF. 3, c. 7, 
 and kept upon his premises a quantity of combustibles, for the pur- 
 pose of his business' as a maker of fireworks. In his absence, by the 
 negligence of one of his servants, a fire broke out amongst such 
 combustibles, and a rocket ignited thereby, flew across the street, set 
 fire to the opposite house, and caused the death of a person therein. 
 The defendant was held not to be guilty of manslaughter. R. v 
 Bennett, Bell, 1 ; 28 i. /. {M. C.) 27. 
 
 Where a man lays poison to kill rats, and another man takes it, 
 and it kills him, if the poison were laid in such a manner or place as 
 
Murder. 639 
 
 to be mistaken for food, it is, perhaps, manslaughter ; 1 Hale, 431 ; 
 if otherwise, misadventure only. Id. 
 
 If a man discharge a loaded gun amongst a multitude of people, 
 and death ensue, it is murder ; for the law in such a case will imply 
 malice. 1 Hale, 476. If he discharge it merely for the purpose of 
 unloading it, or the like, and death ensue — then, if it were in a place 
 where persons were likely to pass, it is manslaughter ; B. v. Burton, 
 1 Sir. 481; otherwise, misadventure only. As to death occasioned by 
 springrguns, see Ilott v. Wilbs, 3 B. t& Aid. 304 : Bird v. Holbrook, 
 4 Bing. 628. 24 i& 25 Vict. c. 100, s. 31, post. Where a man gave 
 a loaded gun to his servant to protect a corn-field from deer during 
 the night, with instructions to fire when he heard any bustle in the 
 corn by the deer ; and the master himself unfortunately rushed into 
 the corn during the night, and the servant, imagining it to be the 
 deer, fired, and shot his master; this was holden to be misadventure. 
 1 Hale, 476; 1 East, P. C. 266. Where a man, finding a pistol in the 
 street, brought it home, and imagining (from having tried it with a 
 rammer) that it was not loaded, presented it in sport at his wife, drew 
 the trigger and killed her ; this was holden to be manslaughter; JR. 
 V. Bampton, Kel. 41 ; but Mr. Justice Foster doubts the propriety of 
 the decision, as the defendant took the usual precaution to ascertain 
 that the pistol was not loaded ; see Fast. 264, 265 ; and clearly, if he 
 took not this or other reasonable precaution, it would be man- 
 slaughter. jB. v. Campbell, 11 Cox, 323. If a man shooting at butts 
 or a target, by accident kill a bystander, it is misadventure ; 1 Hale, 
 476; but this must be understood of cases where a proper precaution 
 to prevent accidents has been taken; for if the target, etc., be placed 
 near a highway or path, where persons are in the habit of passing, 
 the killing would probably be deemed manslaughter. A cannon 
 which had been returned to an ironfounder burst, was sent back by 
 him in so imperfect a state, that on being fired it burst again and 
 killed a person ; and it was held to be manslaughter. R. v. Carr, 8 
 C. (& P. 163. The defendant having a right to the possession of a 
 gun which was in the hands of the deceased, and which he knew to 
 be loaded, attempted to take it away by force, and in the struggle 
 which ensued the gun accidentally went off', and caused the death of 
 the deceased. This was holden to be manslaughter, inasmuch as 
 the discharge of the gun was the result of the defendant's unlawful 
 act, in attempting to retake the gun by force. M. v. Archer, 1 F. <& 
 F. 351. 
 
 Sd, if a man, knowing that people are passing along a street, wan- 
 tonly throw a stone or shoot an arrow Into it, likely to do an injury, 
 with an intent to hurt some of the persons passing, and a person be 
 Ijilled by it, it is murder, although the stone or arrow was not in- 
 tended to hit any particular person ; 1 Hale, 475 ; 3 Inst. 57 ; but if 
 it were done thoughtlessly and incautiously, and without intent to 
 hurt any one — then, if it were thrown or shot into a place where people 
 were in the habit of passing, the killing is manslaughter ; 1 Hale, 
 476 ; 1 Hawk. c. 29, s. 9 ; if in a place where persons were not likely 
 to pass, misadventure only. A lad out of ft-olic took the trapstiok out 
 of the front part of a cart, in consequence of which it upset, and the 
 carman, who was loading sacks therein, was killed ; and this was held 
 to be manslaughter. E. v. Sullivan, 1 C. & P. 641. If an improper 
 quantity of spirituous liquors be given to a child of tender years, heed- 
 lessly and for brutal sport, if death ensue it will be manslaughter. 
 R. V. Martin, 3 C. (& P. 211. A culpable mistake, and some degree. 
 
640 Murder. 
 
 of culpable negligence, causing death, will not support a charge of 
 manslaughter, unless the negligence be so gross as to be reckless, 
 R. V. Noahes, 4. F. & F. 920 {ante, p. 628). 
 
 In all such cases it must appear that the death was the direct 
 and immediate result of the personal neglect or default of the defend- 
 ant. For instance, where trustees appointed under a local act for the 
 purpose of repairing roads within a particular district, with a power 
 to contract for executing such repairs, neglected so to contract, and 
 by reason of such neglect one of such roads became out of repair, 
 and a person using it was accidentally killed in consequence of 
 its so being out of repair, it was held that the ti-ustees were not 
 chargeable with manslaughter. R. v. Pocock, 17 Q. B. 34. See ante, 
 p. 638. 
 
 Killing Officers of Justice and Others.'] — If a man kill an officer of 
 justice, either civil or criminal, such as a bailiff, constable, watchman, 
 etc., in the legal execution of his duty, or any person acting in aid of 
 him (whether specially called thereunto or not, 1 Hale, 462), or any 
 private person endeavoming to suppress an affray or apprehend a felon, 
 knowing his authority or the intention with which he interposes, the 
 law will imply malice, and the offender will be guilty of murder. 
 1 Hale, 456, 457, 460; Fast. 270, 308 et seq. And the officer and 
 persons acting in aid of him enjoy this protection eundo, morando, et 
 redewndo: therefore, if an officer, on his way to do his duty, be op- 
 posed and killed, or if he arrive at the place, and in consequence of 
 opposition retreat, and on his retreat be killed, it is murder. Fast. 
 308, 309; 9 Co. 67 6; 1 Hale, 462: R. v. Phelps, C. & Mar. 180. 
 Three things are to be attended to in matters of this kind: the 
 legality of the deceased's authority, the legality of the manner in 
 which he executed it, and the defendant's knowledge of that autho- 
 rity ; for if an officer be killed in attempting to execute a writ or 
 warrant invalid on the face of it, or against a wrong person, or out 
 of the district in which alone it could legally be executed ; or if a 
 private person interfere and act in a case where he has no authority 
 by law to do so; or if the defendant had no knowledge of the officer's 
 business, or of the intention with which a private person interferes, 
 and the officer or private person be resisted and killed ; the killing 
 will be manslaughter only. 
 
 1. As to the legality of the authority. — If an officer having a war- 
 rant from a proper magistrate to apprehend B. for felony ; or if B. be 
 indicted for felony ; or if the hue and cry be levied against B. ; in 
 these cases, if B. or any of his accomplices kill the officer or any per- 
 son joining in the hue and cry, it is murder, whether B. be guilty or 
 innocent of the felony charged against him. Fost. 318. But if the 
 warrant were illegal, and void upon the face of it, see 1 Hale, 459 ; 
 1 East, P. C. 310, or issued with a blank in it, and the blank after- 
 wards filled up ; R. v. Stochley, 1 East, P. C. 310; and see Homin 
 V. Barrow, 6 T. R. 122: R. v. Wimuick, 8 T. R. 454 : R. v. Hood, 
 1 Mood. C. C. 281 ; or issued with an insufficient description of the 
 defendant, as, for instance, if it were to take the son of J. S., Id., or 
 if it be attempted to be executed against C. instead of B., the killing 
 would be manslaughter only. If a writ of execution in civil cases be 
 correct upon the face of it, although the judgment be erroneous, or the 
 proceedings irregular, if the officer, in endeavouring to execute it, be 
 resisted and killed, it is murder ; 1 Hale, 457; Fost. 411, 412. So in 
 the case of process out of an inferior coui-t, as the county court, the 
 
Mwder. 641 
 
 production of a warrant good on the face of it, and appearing to be 
 issued in a case in which the court had jurisdiction, is sufficient to 
 justify an ai-rest under it, and render the party, if he resist the arrest, 
 liable to an indictment for an assault upon the officer. R. v. Davis, 
 L. <& C. 64; 30 L. J. (M. C.) 159. But if the writ were a nullity on 
 the face of it, or if the warrant upon it were attempted to be exe- 
 cuted by any other than the officer to whom it was directed (the 
 officer himself not being present, or at least acting in the arrest, see 
 Cmop. 66), the killing would be manslaughter only. If an innocent 
 person be indicted for a felony, and an attempt be made to arrest him 
 tor it without warrant, and he resist and kill the party attempting to 
 arrest him : if the party attempting the arrest were a constable, the 
 killing is murder ; 1 Hawh. e. 28, s. 121 ; 2 Hale, 84, 87, 91 ; if a 
 private person, manslaughter ; see 2 Hale, 83, 92 ; because the con- 
 stable has authority by law to arrest in such a case, but a private 
 person has not. And the same in all cases where a person is ar- 
 rested, or attempted to be arrested, upon a reasonable suspicion of 
 felony. See Samuel v. Payne, Doug. 359. Upon an indictment for 
 shooting at and cutting a constable with intent, etc., it appeared that 
 the defendant had been given in charge to the constable for having a 
 forged note in his possession, and upon the constable attempting to 
 handcuff him, had fired a pistol at the constable and wounded him, 
 and afterwards cut him with the cock of the pistol, it was argued that 
 the charge imported no legal offence, for if he did not know the note 
 to be forged, the defendant was no felon, and the arrest was illegal ; 
 but it was holden that the defect in the charge was immaterial, and 
 that it was not necessary for the charge to contain the same accurate 
 description of the offence as an indictment, and that the charge must 
 have been considered as importing a guilty knowledge. R. v. Ford, 
 R. <& B. 329. But where the defendant took his tools and left his 
 work, saying that " he would do for any constable that offered to stop 
 him," and his master applied to a constable to take the defendant, 
 hut made no charge against him, and the master and the constable 
 followed the defendant, and found him in a public privy as if he had 
 occasion there, and the master said, " This is the man, I give you 
 charge of him;" upon which the constable said, "Your master gives 
 me in charge of you, you must go with me ;" and the defendant 
 immediately stabbed the constable : it was holden by a majority of 
 the judges, that, as the actual arrest would have been illegal, the 
 attempt to arrest when the defendant was in such a situation that he 
 could not get away, and when the waiting to give notice might have 
 enabled the constable to complete the arrest, was such a provocation 
 as reduced the offence to manslaughter only. R. v. Thompson, 1 
 Mood. C. C. 80. If a constable take a man without warrant, upon 
 a charge which gives him no authority to do so, and the prisoner 
 run away, and is pursued by J. S., who was with the constable 
 all the time, and charged by him to assist, and the man kill J. S., 
 it is manslaughter only, because the arrest was illegal, and J. S. 
 ought to have known it ; and therefore the attempt to take the 
 prisoner was illegal also. R. v. Ourvan, 1 lHood. C. C. 132. A 
 constable, without warrant, apprehended N.- on suspicion of having 
 recently stolen potatoes out of the ground, and called 0. to assist 
 him ; a rescue was attempted, in the course of which one of the 
 party killed 0. ; and this was held to be manslaughter only; for, 
 without warrant, the constable could only arrest a person found com- 
 mitting such offence, under the stat. 7 c§ 8 Gr. 4, c. 29, «. 68. R, v. 
 
642 Murder. 
 
 Phelps, C. & Mar. 180. But if a constable, having a charge of 
 felony against a defendant, take liim without a warrant, and the 
 defendant, knowing Jhe constable, kill him, it will be murder, even 
 though the constable do not tell him of the charge, and the defendant 
 in fact has done nothing for which he is liable to be arrested. R. v. 
 Woolrmr, 1 Mood. C. C. SSL So, if a man actually commit a felony, 
 and another, in whose presence he committed it, attempt to arrest 
 him for it, and be resisted and killed ; 2 Hawk. c. 12, s. 1 ; or if a 
 person present at any afiray, interfere for the purpose of restraining 
 the offenders and keeping the peace,, and be killed ; 3 Imt. 52 ; 1 
 Hawh. c. 31, ss. 48, 54 : Fast. 310, 311 ; or if a person present when 
 another attempts ,to commit a treason or felony, lay hold of him in 
 order to prevent him, aind be killed ; 2 Hawk c. 12, «. 19 ; the kill- 
 ing in these cases would be murder, whether the person arresting or 
 interfering, etc., be a constable or not ; for either has power to 
 arrest or interfere, etc., in such a case. JR. v. Hunt, 1 Mood. C. C. 93: 
 R. V. Ourram, 3 C.S P. 397: M. v. Price, 8 C.<&P. 282: .ffi. v. Wek, 
 1 -B. cfc C 261. So, where a man seen attempting to commit a felony, 
 on fresh pursuit kills his pursuer, it is as ranch murder as if the 
 party were killed while attempting to take the defendant in the act. 
 E. V. Howarth, 1 Mood. C. C.207 : see Bechmth v. Philhy, 6B.(&C. 
 635. But where an affray,' which has taken place out of the con- 
 stable's view, is over, and there is no continued pursuit, the constable 
 has no right to arrest the affrayer, unless there is an immediate 
 danger of the affray being renewed, -fi. v. Walker, Deaira. 358; 23 
 L. J. (M. C.) 123; see Timothy v. Simpson, 1 C, M. & R. 757; 4 
 L. J. {Ex.) 81: Baynes v. Brewster, 2 Q. B. 375; 11 L. J. (M. C.) 5. 
 The prisoner was engaged in a disturbance in the street, when E., a 
 constable, interfered to prevent it. A struggle ensued between R. 
 and the prisoner. R. i-etired, and the prisoner went into and fastened 
 up his house. After an interv-al of an hoar, E. returned with W. and 
 two other constables to the house, which was then fastened and all 
 quiet. The prisoner from inside the house refused to admit the con- 
 stables, who spent about a quarter of an hour in trying to get in, and 
 finally burst open the door. They found the prisoner on the top of 
 the stairs with a bill-hook in his hand, which he used against the 
 constables to resist his apprehension, and with which in so doing he 
 wounded W., one of the constables. Under these circumstances it 
 was held that the apprehension was not lawful, as the first disturb- 
 ance was at an end, and there was no fear of its renewal; nor was 
 there a fresh pursuit by the constables, .and the conviction of the 
 prisoner upon an indictment for wounding W., with intent to resist his 
 lawful apprehension, was therefore quashed. R. v. Marsden, L. R., 1 
 C. C.:S.131; 37i.J.(#.C.)80. Where the constable, standing outside 
 the defendant's house, saw him hold a spade in a threatening attitude 
 over his wife's head, and heard him at the same time say, " If it was 
 not for the policeman outsid'e, I would split your head open;" in 
 about twenty minutes afterwards the defendant left his house, after 
 saying he would leave his wife altogether, and after he had proceeded 
 a short distance in the direction of his father's residence, was taken 
 into custody by the constable without waiTant; the apprehension was 
 held lawful R. v. Light, Dears. & B. 332; 27 L. J. {M. C.) 1. 
 If a person be taken before a magistrate for an assault, and whilst 
 the warrant is being made up for his commitment, escape, a con- 
 stable may, by verbal directions from the magistrate, pursue and 
 apprehend him; and if in so doing the constable is killed, it is mur- 
 
Murder. G43 
 
 der. R. v. Willimns, 1 Mood. C. C. 387. If a seaman be impressed, 
 and the press-gang be resisted, and any of them be kUled; if the 
 press-gang at the time were under the direction of a commissioned 
 ofBoer, and such officer were then acting with them, the killing would 
 be murder, otherwise but manslaughter; R. v. Broadfoot, Fast. 154; 
 for the presence of a commissioned officer is necessary to the due 
 execution of an impress warrant. Where two soldiers not belonging 
 to a recruiting party, who were in a public-house, wished to enlist 
 M., and gave him a shilling for that purpose, and M. afterwards wish- 
 ing to go away, an altercation ensued, and one of the soldiers stood 
 at the door with his drawn sword, and swore he would stab any per- 
 son who attempted to come in, and (the landlord of the house was 
 stabbed in the scuffle: it was argued that the soldiers had authority 
 to enlist M., and that what was idone was merely to prevent his 
 rescue; but the judges held, that they had no authority, and that the 
 offence amounted to murder. R. v. Longden, R. <& R. 228. A con- 
 stable, who had verbal orders from the magistrates to apprehend all 
 thimbleriggers, attempted to apprehend the defendant and his com- 
 panions, who were playing at thimblerig in a public fair; he suc- 
 ceeded in apprehending one of his companions, whom the defendant 
 rescued, and afterwards, in the evening, seeing the defendant in a 
 public-house, endeavoured to apprehend him, telling him that he did 
 so for what he had been doing in the fair; the defendant escaped 
 into a privy, and the constable, calling others to his assistance, broke 
 open the privy and attempted to apprehend the prisoner, who stabbed 
 one of the party; it was holden that the constable had authority to 
 apprehend the defendant. R. v. Gardener, 1 Mood. C. C. 390. A 
 constable (out of the limits of the Metropolitan Police Acts) is not 
 acting in the execution of his duty in clearing a public-house, unless 
 there be a breach, or danger of a breach, of the public peace therein. 
 R. V. Prebble, \ F. & F. 325. A constable has no right to arrest a 
 person for mere disorderly conduct, unless he be at least on the point 
 of committing a breach of the peace, and the person so attempted fo 
 be arrested and his companions, may use necessary force to prevent 
 such an arrest. If, however, they use unnecessary violence, and kill 
 the constable, they are guilty of manslaughter; and if the constable 
 has given up his intention of making the arrest, and they know it, 
 and still continue their violence, and the constable is kiUed, they are 
 guilty of murder. R. v. LocMey^ i F. (& F. 155. 
 
 A special constable duly appointed under the stat. 1 <6 2 PT. 4, 
 e. 41, is appointed for an indefinite time, and retains all the authority 
 of a constable at common law, until his services are suspended or 
 determined under the 9th section of that statute. R. v. Porter, 9 C. 
 & P. 778. 
 
 By stat. 9 G. 4, c. 69, s. 2, gamekeepers are empowered to appre- 
 hend persons " found upon any land committing any such offence as 
 is hereinbefore mentioned," i. e., in s. 1 ; and though this 2nd section 
 appears only to authorize the apprehension for the offences men- 
 tioned in s. 1, yet they may apprehend the offenders where three or 
 more are out by night armed, etc., for although that offence is pun- 
 ishable by s. 9, it is still an offence under s. 1. R. v. Ball, 1 Mood. 
 C. C. 330. To authorize an apprehension under this statute, it is not 
 necessary that the gamekeeper should give notice of his purpose; R. 
 V. Payne, 1 Mood. C. C. 378 ; nor that he should have a written 
 authority from his master for so doing, provided the poacher be on 
 his master's laud or manor; R. v. Price, 7 C. <& P. 178 : see R. v. 
 
644 Murder. 
 
 Fielding, 2 C. & K. 621; but he could not, under this statute, with- 
 out authority, apprehend him upon the ' land or manor of another 
 person. R. v. Davis, 7 C.&P. 786. If a keeper, attempting lawfully 
 to apprehend a poacher, be met with violence, and in opposition to 
 such violence and in self-defence strike the poacher, and then be 
 killed by the poacher, it will be murder. R. v. Ball, 1 Mood. C. 0. 
 333. Even an interference by a gamekeeper with persons found 
 armed in the pursuit of game on the lands of an adjoining proprietor, 
 without any attempt forcibly to apprehend, is not a sufficient provo- 
 cation to reduce a malicious wounding and killing to manslaughter. 
 R. V. Warner, 1 Mood. C. C. 380. A gamekeeper appointed by a per- 
 son who has only a permission to shoot over lands has no authority 
 to apprehend a poacher in pursuit of game on such land, or to take 
 a gun from him; and where such a gamekeeper endeavoured to do 
 so, and in the struggle which ensued the gun went off and killed the 
 poacher, this was held to be manslaughter. R. v. Wesley, \ P.&F. 
 628; see R. v. Wood, Id. 470. 
 
 But by 14 & 16 Vict. c. 19, s. 10, amy personwhatsoever may appre- 
 hend, and convey or deliver over to a constable, any person found 
 committing any offence against the provisions of that act; and by 
 s. 11 {ante, p. 488), the like power is given with respect to all persons 
 found committing any indictable offence in the night. This section 
 has been holden to apply to persons committing an offence against 
 the 9th section of the 9 G. 4, t. 69. B. v. Sanderson, 1 F. <& F. 
 598. 
 
 2. As to the legality of the manner in which the authority is exer- 
 cised. — If the constable of the vill of A. attempt without warrant to 
 suppress a tumult in the vill of B., and be resisted and killed, it is 
 manslaughter only; for he had authority in such a case within the 
 vill of A. alone. 1 Hale, 459. So, if a sheriff's officer attempt to 
 execute a writ out of the proper county, and be resisted and killed, 
 it is manslaughter only; 1 Sale, 457 et seq. A justice's warrant of 
 commitment, directed " To the constable of G.," a parish in the 
 county of L., must be read as directed to the parish constable of G., 
 there being such an officer, who must execute it, and its execution by 
 a county policeman is illegal. R. v. Saunders, L. R., 1 C. C. R. 75; 
 36 L. J. {M. C.) 87. Therefore a conviction for wounding a county 
 policeman in the execution of such a warrant, with intent to resist 
 the prisoner's lawful apprehension thereunder, was quaslied. Id. 
 But by stat. 11 S 12 Vict. c. 42, s. 10, constables and other peace 
 officers may execute warrants out of their respective precincts, pro- 
 vided the place where the warrant is executed be within the jurisdic- 
 tion of the magistrate granting or backing the warrant. If an officer 
 were to attempt the arrest of a man on a Sunday (unless for treason, 
 felony, or breach of the peace, see 29 C. 2, c. 7, «. 6), and were re- 
 sisted and killed, it would be manslaughter only. A constable who 
 had a warrant to apprehend A., gave it to his son, who, in attempting 
 to apprehend A. was stabbed with a knife which he happened to have 
 in his hand, the constable being in sight, but a quarter of a mile off; 
 it was held that the son had no authority to apprehend A. R. v. 
 Patience, 1 C. & P. lib. A justice issued a warrant directed to the 
 constable of N., and all peace officers in and for the county of C, com- 
 manding him or them to apprehend G. for disobedience to an order 
 in bastardy. A police officer arrested G., but at the time of doing 
 so the warrant was not actually in his possession. It was held, that 
 
Murder. 645 
 
 the arrest was illegal, as the officer ought to have had the warrant 
 ready to be produced at the time of arrest. Galliard v. Laxton, 2 B. 
 & S. 363; 31 L. J. (M. C.) 123. 
 
 3. As to the defendant's knowledge of the deceased's authority or 
 intention. — When any officer is in the legal execution of his duty, or 
 a private person endeavouring to suppress an affray, or apprehend a 
 felon, and is resisted and killed; if it appear that the slayer knew 
 the officer's business or the intent of the private person, either ex- 
 pressly from the deceased, or impliedly from circumstances, R. v. 
 Howarth, 1 Mood, C. C. 207, the killing is murder; if it appear that 
 he was ignorant in this respect, it is manslaughter only. 1 Hawk, 
 c. 31, ss. 49, 60; Fast. 310; 1 Hale, 458 et seq. Where a bailiff 
 rushed into a gentleman's bedchamber early in the morning, without 
 giving the slightest intimation of his business, and the gentleman, 
 not knowing him, in the impulse of the moment wounded him with 
 his sword and killed him; this was holden to be manslaughter. 1 
 Hale, 470. But where the bailiff or constable shows the warrant, 
 1 Hale, 461; or where it appears that he is known to the defendant 
 to be an officer; as, for instance, when the defendant said, " Stand 
 off, I know you well enough, come at your peril;" R. v. Penjo, Oro. 
 Car. 183; if after this the officer be killed, it will be murder. If the 
 constable interfere to prevent any affray within his own vill, if he be 
 killed by one of the inhabitants, or other person, who knows him to 
 be the constable, it will be murder; if, by a stranger who does not 
 know him, it is manslaughter. So, if one of several know him to be 
 a constable, it will be murder in him, manslaughter in the rest. 
 1 Hale, 438. If a constable command the peace, 1 Hale, 461, or show 
 his staff of office, Fost. 311, this, it seems, is a sufficient intimation of 
 his authority. And in such a case it is not necessary to prove the 
 deceased's appointment as constable ; proof that he was accustomed 
 to act as constable is sufficient. 1 East, P. C. 315. But private 
 persons when they interfere must expressly intimate their intention, 
 otherwise killing them will be manslaughter only. Fost. 310, 311. 
 Where the outer door of a dwelling-house may be bi'oken open, in 
 order to execute process; as, for instance, in the case of a capias 
 upon an indictment, 2 Hawk. c. 14, .s. 3, a warrant to search for stolen 
 goods, 2 Hale, 151, a capias utlagatum, 2 Hawk. c. 14, s. 6, a warrant 
 of a magistrate for levying a penalty. Id. s. 5, a magistrate's warrant 
 to arrest for any specific crime; Fost. 320 ; 2 Hawk. c. 14, s. 3 ; 
 1 Hale, 584; or where a person lawfully arrested escapes into a 
 house; 2 Hawk. o. 14, s. 9; where one known to have committed 
 treason or felony, or to have dangerously wounded another, escapes 
 into a house; Id. s. 7; where an affray is made in a house, and the 
 constable wants to suppress it, or take the offender; Id. s. 6; where 
 there is disorderly drinking or noise in a house at any unseasonable 
 time of night, particularly in inns, taverns, or alehouses, and the 
 constable or his watch wish to suppress the disorder; 2 Hale, 65; 
 and in the case of forcible entry or detainer; 2 Hawk. c. 14, s. 6; 
 (but not in the execution of writs in civil cases, Fost. 319, excepting 
 writs of seisin, or habere facias possessionem, 5 Co. 91;) in all such 
 cases, before the outer door is broken open, there must be a demand 
 of admittance, or something equivalent thereto, and a refusal; Fost. 
 136, 320; see Launock v. Brown, 2 B. d; Aid. 592; otherwise, if the 
 officer be killed, it will be manslaughter only. 
 
 In all cases, however, above stated to be manslaughter only, if 
 there be evidence of express malice in the party killing, the homicide 
 
646 Murder. 
 
 will be murder. See R. v. Stochhy, 1 East, P. C. 310; R. v. Ourtie, 
 Fost. 135. 
 
 Killing by Officers and Others.'] — Where an officer of justice; in 
 endeavouring to execute his duty, kills a man, this is justifiable 
 homicide, or manslaughter, or murder, according to circumstances. 
 
 1. Where an officer of justice is resisted in the legal execution of 
 his duty (see ante, p. 640), he may repel force by force; and if, in 
 doing so, he kill the party resisting him, it is justifiable homicide; 
 and this in civil as well as in criminal oases. 1 Hale, 494; 2 Bale, 
 118. And the same as to persons acting in aid of such oifioet 
 Thus, if a peace officer have a legal warrant against B. for felony, or 
 if B. stand indicted for felony, or if hue and cry be levied against B.; 
 in these cases, if B. resist, and in the struggle be killed by the 
 officer, or any person acting in aid of him, or joining in the hue and 
 cry, the killing is justifiable. Fost. 318. So, if a private person 
 attempt to arrest one who commits a felony in his presence, or inter- 
 fere to suppress an affray, and be resisted, and kill the person resist- 
 ing, this is also justifiable homicide. 1 Hale, 481, 484; Fost, 274. 
 And this, not merely on the principle of self-defence, for the officer 
 or private person is not bound to retreat, as in the case of homicide 
 se defendendo, 2 Hale, 218, but upon that principle, and the necessity 
 of executing the duty the law has imposed upon him, jointly. Still, 
 there must be an apparent necessity for the killing; for if the officer 
 were to kill after the resisting had ceased, 1 East, P. C. 297, or if 
 there were no reasonable necessity for the violence used upon the 
 part of the officer, etc., see B. v. Gaffe, 1 Vent. 216, the killing would 
 be manslaughter at the least. Also, in order to justify an officer or 
 private person in these cases, it is necessary that they should, at the 
 time, be in the act of legally executing a duty imposed upon them 
 by law, and under such circumstances, that if the officer or private' 
 person were killed, it would have been murder (see ante, p. 640);. for 
 if the circumstances of the case were such, that it would have been 
 manslaughter only to kill the officer or private person, it will be 
 manslaughter at least in the officer or private person to kill the party 
 resisting. See Fost. 318; 1 Hale, 490. 
 
 2. If the prisoners in a gaol, or going to a gaol, assault the gaoler 
 or officer, and he, in his defence, kill any of them, it is justifiable, for 
 the sake of preventing an escape. 1 Hale, 496. 
 
 3. Where an officer or private person, having legal authority to 
 apprehend a man, attempts to do so, and the man, instead of resisting, 
 flies, or resists and then flies, and is killed by the officer or private 
 person in the pursuit; if the offence with which the man was charged 
 were a treason or felony, or a dangerous wound given, and he could 
 not otherwise be apprehended, the homicide is justifiable'; 1 Bale, 
 481; 2 Hah, 218, 219; 1 Hawk. c. 28, ss. 11, 12; Fost. 271; but if 
 charged with a breach of the peace, or other misdemeanor merely,. 
 Fost. 271; 1 Hah, 481;. 2 Hah, 117; see ij; v. Dadson, 2 Dmi. 35; 
 3 a & K. 148; 20 L. J. (M. C.) hi; or if the arrest were intended 
 in a civil suit, 1 Hale, 481 ; Fost. 271, or if a press-gang kill a sea- 
 man or other person flying from them, R. v. Broiiming, 1 East, P. €.■ 
 312: and see Id. 308; Doug. 207, the killing in these cases would be 
 murder, unless, indeed, the homicide were occasioned by means not 
 likely or intended to kill, such as tripping up his heels, giving him a 
 blow of an ordinary cudgel, or other weapon not likely to kill, or the 
 like: in which case the homicide, at most, would be manslaughter 
 
Conspiracy to Murder. 647 
 
 only. See Post. 271. As to homicide by firing into a smuggling 
 vessel, see 16 & 17 Vict. c. 107, «. 249, |)08*. 
 
 4. In case of a riot or rebellious assembly, the officers endeavour- 
 ing to disperse the mob are justifiable in killing them, both at com- 
 mon law, 1 Hale, 495; 1 Ekust, P. C. 304, and by the Riot Act, 1 
 G. 1, St. 2, c. 5, if the riot cannot otherwise be suppressed. 4 Bl. 
 Com. 179, 180. 
 
 5. Where a criminal is executed by the proper officer, in pursu- 
 ance of his sentence, this is justifiable homicide. 4 Bl. Com. 178. 
 But if it be done by any other person, 1 Hale, 601, or not done in 
 strict conformity with- the sentence, as, for instance, if an officer be- 
 head one who is adjudged to be hanged, or the contrary, 3 Inst. 52; 
 1 Hale, 501, it is murder. 
 
 CONSPIEACY TO MUEDER. 
 
 Statute. 
 
 24 (& 25 Vict. c. 100, s. 4.] —All pei^ons who shall conspire, con- 
 federate and agree to murder any person, whether he be a subject of 
 her Majesty or not, and whether he be within the Queen's dominions 
 or not, and whosoever shall solicit, encourage, persuade, or endea- 
 vour to persuade, or shall propose to any person, to murder any other 
 person, whether he be a subject of her Majesty or not, and whether 
 he be within the Queen's dominions or not, shall be guilty of a mis- 
 demeanor, and being convicted thereof shall be liable, at the discre- 
 tion of the court, to be kept in penal servitude for any terra not 
 more than ten and not less than three years [now five years, 27 <& 28 
 Vict. c. 47, s. 2, ante, p. 173] , or to be imprisoned for any term not 
 ■exceeding two years, with or without hard labour. 
 
 Indictment. 
 
 Central Criminal Court, to wit: — The jurors for our lady the Queen 
 
 upon their oath present, that J. S., J. T., and B. T., on the day 
 
 of , in the year of our Lord , unlawfully and- wickedly did 
 
 conspire, confederate and agree together one J. N. feloniously, wil- 
 fully, and of their malice aforethought, to kill and murder ; against 
 the form [as ante, p. 347]. [You may add counts charging ike de- 
 fendants, or any of them^ with " soliciting, encouraging, persuading, or 
 endeavouring to persuade, or proposing to amy other of the defendants, 
 or amy other person, to murder J. N.," if the facts warrant such a 
 charge,'] 
 
 Misdemeanor : penal servitude for not more than ten and not less 
 than five [27 & 28 Vict. c. 47, s. 2, ante, p. 173] years, or imprison- 
 ment, with or without hard labour, not exceeding two years. 24 cfc 25 
 Victi c. 100, s. 4. As to fining the offender and requiring Mm to enter 
 into recognisances and find sureties for keeping the peace, ojnd being of 
 good behaviour. Id. s. 71, ante, p. 619; 
 
 No indictment can be preferred for conspiracy, vnless one or other of 
 the preliminary steps required by 22 di 23 Vict. c. 17, s. l,.hxis been 
 taken. (See ante, p. 4.) 
 
 Conspiracy to murder is not triable at quarter sessions. 5 c6 6 Vict. 
 c. 38, s. 1 (ante, p. 104). 
 
648 Attempts to Mulder. 
 
 Evidence. 
 
 This provision is new. Before this statute, a conspiracy to murder 
 was, in England, only a misdemeanor at common law, punishable by 
 fine and imprisonment. Prove a conspiracy between the defendants, 
 or between them and other persons, as the case maybe {see post, 
 Book II., Part III.), and that the object of the conspiracy was to 
 murder J. N. It is immaterial whether J. N. be a subject of the 
 Queen or not, and whether he be within her dominions or not. It 
 seems not to be essential that the conspiracy should have been 
 formed in England or Ireland. 1 Buss. C. & M., by Greaves, 968, 
 4:th ed. The parties to it must have been either natural-born subjects 
 of the Queen, or persons owing allegiance to the crown of England 
 at the time. 
 
 ATTEMPTS TO MUEDEE. 
 
 ADMINISTEEING POISON, WOUNDING, ETC., WITH INTENT TO 
 MTJEDEE. 
 
 Statutes. 
 
 24 <& 25 Vict. c. 100, s. 11.] — Whosoever shall administer to or 
 cause to be administered to or to be taken by any person any poison 
 or other destructive thing, or shall by any means whatsoever wound 
 or cause any grievous bodily harm to any person, with intent, in any 
 of the cases aforesaid, to commit murder, shall be guilty of felony, 
 and being convicted thereof shall be liable, at the discretion of the 
 court, to be kept in penal servitude for life or for any term not less 
 than three years [now five years, 27 <& 28 Vict. c. 47, s. 2, ante,p. 173], 
 or to be imprisoned for any term not exceeding two years, with or 
 without hard labour, and with or without solitary confinement. 
 
 14 S 15 Vict. c. 19, s. 5 — Conviction for Misdemeanor on Trial for 
 Felony r\ — If, upon the trial of any indictment for any felony, except 
 murder or manslaughter, where the indictment shall allege that the 
 defendant did cut, stab or wound any person, the jury shall be satis- 
 fied that the defendant is guilty of the cutting, stabbing or wound- 
 ing charged in such indictment, but are not satisfied that the de- 
 fendant is guilty of the felony charged in such indictment, then and 
 in every such case the jury may acquit the defendant of such felony, 
 and find him guilty of unlawfully cutting, stabbing or wounding ; 
 and thereupon such defendant shall be. liable to be punished in the 
 same manner as if he had been convicted upon an indictment for the 
 misdemeanor of cutting, stabbing or wounding. 
 
 Indictment for administering Poison with intent to Murder. 
 
 Commencement as ante, p. 620] — feloniously and unlawftdly did 
 administer to one J. N. {^'■administer to or cause to be administered ta 
 
Attempts to Murder. 649 
 
 or to he taken hy any person ") a large quantity, to wit, two drachma of 
 a certain deadly poison called white arsenic ("any poison or other de- 
 structive thing") with intent thereby then feloniously, wilfully, and of 
 his malice aforethought, the said J N. to kill and murder ; against 
 the form of the statute in such case made and provided, and against 
 the peace of our lady the Queen, her crown and dignity. Add counts 
 stating that the defmdamt " did cause to be administered to J. N." and 
 " did cause to be taken by J. N." " a large quantity," etc.; cmd if the 
 description of poison be doubtful, add counts describing it in different 
 ways ; and one count stating it to he " a certain destructive thing to 
 the jurors aforesaid unknown." The indictment must allege the thing 
 administered to he poisonous or destructive ; and therefore an indictment 
 for administering sponge mixed with milk, not alleging the sponge to he 
 destructive, was holden had. R. v. Powles, i C. S P. 571. If there 
 be any d^ubt whether the poison was intended for J. N., add a count 
 stating the intent to be " to commit murder " generally. See R. v. Ryan, 
 2 M. & Rob. 213, infra. 
 
 Felony: penal servitude for life or for not less than five [27 <& 28 
 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment not exceeding tu:o 
 years, with or without hard labour, and with or without solitary confine- 
 ment (such confinement not exceeding one mmith at any one time, nor 
 three months in any one year, 24 & 25 Vict. c. 100, s. 70, ante, p. 619). 
 — 24 (& 25 Vict. c. 100, s. 11. As to requiring the offender to enter into 
 reeogniza/nces cmd find sureties for keeping the peace, Id. n. 71, ante, 
 p. 619. 
 
 None of the offences mentioned in this section are triable at quarter 
 sessions. 5 tfe 6 Vict. c. 38, s. 1 (ante, p. 104). 
 
 Evidence. 
 
 Prove the administering of the poison by the defendant to the 
 prosecutor, as stated in the indictment. See R. v. Cadman, 1 Mood. 
 C. C. 114. Where a female servant, in preparing breakfast for her 
 mistress, put arsenic into the coffee, and afterwards told her mis- 
 tress that she had prepared the coffee for her, and she (the mistress) 
 drank the coffee. Park, J., held that it was an administering within 
 the meaning of the statute. R. v. Harley, i C. <& P. 369. So also, 
 where the defendant knowingly gave poison to A. to administer as 
 a medicine to B., but A. neglecting to do so, it was accidentally 
 given to B. by a child, this was holden to be an administering by the 
 defendant, as much as if she had given it to B. with her own hands. 
 R. V. Michael, 2 Mood. C. C. 120; 9 C. <& P. 356. Where the pri- 
 soner, having mixed corrosive sublimate with sugar, put it into a 
 parcel, directing it to " Mrs. Daws, Townhope," and left it on the 
 counter of a tradesman, who sent it to Mrs. Davis, who used some of 
 the sugar, Gwney, B., held it to be an administering : for that, al- 
 though it was intended for Mrs. Daws, yet as it found its way to Mrs. 
 Davis, it was as much within the act as if it had been intended for 
 Mrs. Davis. R. v. Lewis, 6C.SP. 161. In R. v. Ryam, 2M.(& Rob. 
 213, however, Parke, B., after consulting Alderson, B., expressed an 
 opinion that an indictment for causing poison to be taken by A., with 
 intent to murder A., was not sustained by evidence showing that the 
 poison, though taken by A., was intended for another person ; and 
 doubted the propriety of the decision in R. v. Lewis; and accord- 
 ingly, after the defendant had been convicted, he directed a fresh 
 indictment to be preferred, charging the intent to be generally " to 
 w. r F 
 
650 Attempts to Murder. 
 
 commit murder ;" upon which the defendant was again tried, con- 
 victed, and sentenced. See, however, R. v. Smith,, Dears. 569; 25 
 L. J. (M. C) 29, post, p. 653. Prove also the intent to murder, by 
 circumstances from which that intent may be implied. See ante, p. 
 208; a. V. Voke, JR. & R. 531. Evidence of administering at different 
 times may be given to show the intent. R. v. Mogg, 4 C.<& P. 364. 
 The defendant administered to a child two coculus indicus berries, 
 entire in the pod, with intent to murder the child. The kernel is a 
 poison : the pod is not, and will not dissolve in the stomach, and 
 they were therefore harmless. This was held to be an administering 
 of poison, with intent to murder, within this section. R, v. Ch- 
 deroy, 1 Dm. 514; 2 C. <& K. 907; 19 L. J. {M. C.) 119. 
 
 Indictment for Wounding with Intent to Murder. 
 
 Cotmnencement as ante, p. 620] — one J. N. feloniously and unlaw- 
 fully did wound (" wound or cause any grievous bodily harm ") with 
 intent, etc. as in the precedent, ante, p. 648. Add a count charging 
 the intent to be "to commit murder," and cownts for wounding with 
 intent to maim, etc., as post, p. 663. 
 
 Felony : 24 t6 25 Vict. c. 100, s. 11. See the last precedent. 
 
 This qffenee is not triable <U quarter sessions. 5 tfi 6 Vict. c. 38, s. 1 
 {ante, p. 104). 
 
 ElvideTice. 
 
 Prove that the defendant wounded J. N. {See post, p. 664.) The 
 instrument or means by which the wound was inflicted need not be 
 stated, and, if stated, would not confine the prosecutor to prove a 
 wound, etc., by such means. R. v. Briggs, 1 Mood. C. C. 318. A 
 wounding by any means whatever, whether by stabbing, outtmg, or 
 otherwise, will support the indictment under this statute. 24 & 25 
 Vict. c. 100, «. 11. Prove the intent, as directed ante, p. 208. See 
 R. V. Jones {post, p. 652). It is not necessary that the prosecutor 
 should be in fact wounded in a vital part ; for the question is not 
 what the wound is, but what wound was intended. R. v. Emt, 1 
 Mood. C. a 93: R. v. Griffith, \C.&P. 298. If the intent be not 
 proved, the defendant may, by virtue of 14 & 15 Vict. c. 19, s. 5, ante, 
 p. 648, be convicted of unlawfully wounding, and thereupon he may 
 be punished in the same manner as if he had been convicted upon an 
 indictment for the misdemeanor of unlawfully wounding: that is, by 
 penal servitude for five [27 & 28 Vict. c. 47, s. 2, ante, p. 173] years, 
 or imprisonment, with or without hard labour, not exceeding two years. 
 24 & 25 Vict. c. 100, s. '2,Q,post,p. 663. The defendant cannot, how- 
 ever, on an indictment for the felony, plead guilty to the misde- 
 meanor ; for the acquittal of the felony is to be the act of the jury. 
 See R. V. Cabiert, 3 C. <& K. 201. On an indictment against several 
 for the felony, it seems that some may be convicted of the felony, and 
 another or others of the misdemeanor, under this section, B. v. 
 Cunningham, Bell, 72 ; 28 L. J. {M. C.) 66 : see R. v. Archer, 2 Uood. 
 C. C. 283: R. v. Fenwick, 1 Cox, 36. 
 
Attempts to Murder. 651 
 
 ATTEMPTING TO POISON, SHOOT, DROWN, ETC., WITH INTENT TO 
 MUHDER. 
 
 Statute. 
 
 24 db 25 Vict. c. 100, s. 14.] —Whosoever shall attempt to admi- 
 nister to or shall attempt to cause to be administered to or to be taken 
 by any person any poison or other destrnctive thing, or shall shoot at 
 any person, or shall, by drawing a trigger or in any other manner, 
 attempt to discharge any kind of loaded arms at any person, or shall 
 attempt to drown, suflFocate, or strangle any person, with intent, in 
 any of the cases aforesaid, to commit murder, shall, whether any 
 bodily injury be effected or not, be guilty of felony, and being con- 
 victed thereof shall be liable, at the discretion of the court, to be kept 
 in penal servitude for life or for any term not less than three years 
 [nmofive years, 27 c6 28 Vict. c. 47, s. 2, ante, p. 173], or to be im- 
 prisoned for any term not exceeding two years, with or without hard 
 labour, and with or without solitary confinement. 
 
 Sect. 1^— Loaded Arms, what.'] — Any gun, pistol, or other arms 
 which shall be loaded in the barrel with gunpowder or any other ex- 
 plosive substance, and ball, shot, slug, or other destructive material, 
 shall be deemed to be loaded arms within the meaning of this act, 
 although the attempt to discharge the same may fail &om want of 
 proper priming or from any other cause. 
 
 Indictment for attempting to Poison, with Intent, etc. 
 
 Commencement as ante, p. 620] — feloniously and unlawfully did 
 attempt to administer (" attempt to administer to or attempt to cause to 
 he administered to or to he taken by") to one J. N. a large quantity, 
 to wit, two drachms, of a certain deadly poison called white arsenic 
 (" any poison or other destructive thing") with intent, etc., as in the 
 precedent (ante, p. 64k). Add counts charging that the defendant 
 "attempted to cause to be administered to," and that he " attempted 
 to cause to be taken by" J. N. the poison, etc. 
 
 Felony : penal servitude for life or for not less than five [27 Sf 28 
 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment not exceeding 
 two years, with or without hard labour, and with or without solitary 
 confinement {such confinement not exceeding one month at any one 
 time, nor three months in any one year, 24 Sf 25 Vict. c. 100, s. 70, 
 ante, p. 619). — 24 Sj- 25 Vict. c. 100, s. 14. As to requiring the 
 offender to enter into recognizances and find sureties for keeping the 
 peace. Id. s. 71, ante, p. 619. 
 
 This offence is not triable at quarter sessions. 6 Sf 6 Vict. c. 38, 
 s. 1 {ante, p. 104). 
 
 Evidence. 
 
 Prove the attempt to administer the poison or other destructive 
 thing, as stated in the indictment. The circumstances stated in B. 
 V. Cadman, 1 Mood. C. C. 114 (post), would no doubt support the 
 above count. Prove the intent, as in the last case. It is imma- 
 terial whether bodily injury be or be not effected. 
 
 The delivery of poison to an agent, with directions to him to cause 
 it to be administered to another, under such circumstances that if 
 
 ff2 
 
652 Attempts to Murder. 
 
 administered the agent would be the sole principal felon, would not 
 be an attempt to administer; R. v. Williams, 1 Den. 39 ; 1 C.dK. 
 589 ; but it would doubtless come within the words " shall attempt 
 to cause to be administered to or to be taken by," which are for the 
 first time to be found in the present ftatute. 
 
 Indictment for attempting to Drown, etc., with Inteni to Murder. 
 
 Commencement as ante, p. 620] — feloniously and unlawfully did 
 take one J. N. into both the hands of him the said J. S. and felo- 
 niously and imlawfuUy did cast, throw, and push the said J. N. into 
 a certain pond wherein there was a great quantity of water, and did 
 thereby then feloniou-sly and unlaw&Uy attempt the said J. N. to 
 drown ajid suffocate ^"rfroron, suffocate, or strangle""), with intent 
 thereby then feloniously, wilfully, and of his malice aforethought, the 
 said J. N. to kill and murder; against the form [as ante, p. 347], 
 Add a cornit charging'generally that the defendant did attempt to drmm 
 J. N., etc. : a/nd counts charging the intent to he " to commit murder." 
 
 Felony : 24 c6 25 Vict. c. 100, s. 14. See the last precedent. 
 
 This offence is not triaile at quarter sessions. 5<£ 6 Vict. c. 38, «. 1 
 (ante, p. 104). 
 
 Evidence. 
 
 Prove the attempt to drown, as stated in the indictment, and the 
 intent as directed ante, p. 208. It is immaterial whether bodily in- 
 jury be or be not proved. 
 
 Indictment for Shooting imth Intent to Mwrder. 
 
 Cemmencemerd as amte, p. 620] — a certain gun, then loaded with 
 gunpowder and divers leaden shot, at and against one J. N. feloni- 
 ously and unlawfully did shoot, with intent, etc., as in the last pre- 
 cedent. Add also coimtsfor shooting with intent to maim, etc., aspost, 
 p. 667. 
 
 Felony : 24 <fe 25 Vict c. 100, s. 14. See the last precedent but me. 
 This offence is not triahle at quarter sessions. 5 cfc 6 Vict. c. 38, s. 1 
 (ante, p. 104). 
 
 Evidence. 
 
 Prove the shooting, as stated in the indictment, and that the gun 
 was loaded in the barrel with gnnpowder or some other explosive 
 substance, and with ball, shot, slug, or other destructive material. 
 24 <& 25 Vict. c. 100, s. 19, ante, p. 651. See R. v. Carr, post, p. 653: 
 R. V. Kitchen, R. & R.^b: R. v. Hughes, b C. & P. 126: R. v. Coatei; 
 Q C. S P. 394. Prove also the intent, as directed ante, p. 208. In 
 R. V. Jones, 9 C.d; P. 258, Patteson, J., appeared to think it doubtful 
 whether, upon the repealed statute 1 W. A: & 1 Vict. c. 85, «. 3, 
 (which was in the same terms as the present statute,) it must not 
 appear, in order to make out the intent to murder, that that intent 
 existed in the mind of the defendant at the time of the offence, or 
 whether it would be sufficient if it would have been murder had death 
 ensued ; he said, however, that the circumstance that it would have 
 been murder if death had ensued would be a good ground whence the 
 
Attempts to Murder. 653 
 
 jury might infer the existing intent, as every man must be taken to 
 intend the necessary consequences of his acts. Upon an indictment 
 for shooting at H. with intent to murder H., it appeared that the 
 defendant intended to shoot at and kill L., but shot at H. by mistake, 
 and Littledak, J., left it to the jury to say whether the defendant 
 intended to mm-der H. : and upon their finding that he shot at H. 
 intending to murder L., directed an acquittal. B. v. Holt, 1 C. & P. 
 518. It should be observed, that that case occurred upon the stat. 
 9 G. 4, c. 31, the words of which were " with intent to murder such 
 person." It would seem, however, from the decision already cited, of 
 £. V. Ryan, 2 M. & Roh. 213 (ante, p. 649), that the intent must still 
 be proved as laid ; and therefore that an allegation of an intent to 
 murder A. would not be satisfied, if it appeared that, although A. 
 was struck, the shot was intended for another person. But where 
 the defendant was charged with wounding T. with intent to murder 
 him, and it appeared in evidence that the defendant intended to 
 murder M., and that he shot at and wounded T., supposing him to 
 be M., and the jury found that he intended to murder the man at 
 whom he shot, supposing him to be M., the court held the conviction 
 right. R. V. Smith, Dears. 559; 25 L. J. {M. C.) 29. To avoid such 
 questions, the indictment should always contain a count charging an 
 intent " to commit murder" generally. 
 
 Indictment for attempting to Shoot, mth Intent, etc. 
 
 Commencem,ent as ante, p. 620J — did, by drawing the trigger 
 (" draining a trigger, or in any other man7ier"y of a certain pistol 
 (" any kind of loaded arms"), then loaded in the barrel with gun- 
 powder and one leaden bullet, feloniously and unlawfully attempt to 
 discharge the said pistol at and against one J. N., with intent, etc., 
 as in the precedent, ante, p. 648. Add a count charging an intent to 
 commit murder, and counts for attempting to shoot with intent to maim, 
 etc., as post, p. 667. The indictment need not, in the latter clause, 
 describe it as " the said pistol so loaded as aforesaid'' R. v. Baker, 
 la&K. 254. 
 
 Felony: 24 & 25 Vict. c. 100, s. 14. See the pnmishment, amte, 
 p. 651. 
 
 This offence is not triable at quarter sessions. &.& & Vict. c. 38, 
 s. 1 {ante, p. 104). 
 
 Evidence. 
 
 Prove that the defendant presented a pistol (or gun) at J. N., and 
 attempted, by pulling the trigger, to discharge it at him. Upon 
 an indictment under one of the former statutes, for attempting to 
 discharge a gun at J. S., it appeared that the gun was loaded, but 
 the jury found that it was not primed ; a majority of the judges 
 considered it equivalent to a finding that it was not so loaded as 
 to be capable of doing mischief by pulling the trigger, and were 
 therefore of opinion, that it was not loaded within the meaning of 
 the statute. R. v. Carr, R. & R. 377 : see R. v. Baker, 1 C <& K. 254 : 
 R. V. James, Id. 530. So, where a pistol was loaded with powder 
 and a bullet, but the touch-hole was plugged so that it could not 
 possibly be fired, it was held not to be " loaded arms " within the 
 meaning of the statute. R. v. Harris, b C.&P. 159. But see now 24 
 & 25 Vict. c. 100, 8. 19, ante,p. 651. Since the passing of that statute 
 
654 Attempts to Murder. 
 
 it lias been held that a person cannot be convicted of an attempt to 
 discharge a pistol, if it had no priming in it when the alleged attempt 
 was made. R. v. Gamble, 10 Cox, 545. That case, however, was 
 decided by the learned Recorder of London on the authority oiS. v. 
 Carr, ante, p. 663, and the 24 1& 25 Vict. c. 100, s. 19, does not seem 
 to have been referred to. Prove the intent, as directed ante, p. 208. 
 
 ATTEMPTING TO MUEDER BY THE EXPLOSION OP GUNPOWDEK, ETC. 
 
 Statute. 
 
 24 & 25 Vict. c. 100, s. 12.] — Whosoever, by the explosion of gun- 
 powder or other explosive substance, shall destroy or damage any 
 building with intent to commit murder, shall be guilty of felony, and 
 being convicted thereof shall be liable, at the discretion of the court, 
 to be kept in penal servitude for life or for any term not less than 
 three years [now fixie years, 27 & 28 Vict. c. 47, s. 2, ante,p.lli'\, 
 or to be imprisoned for any term not exceeding two years, with or 
 without hard labour, and with or without solitary confinement. 
 
 Sect. Gi—MaJcing Chinpowder, etc., to commit Offences."] — This 
 section is in the same terms as the 24 <& 25 Vict. c. 97, s. 54, ante, 
 p. 653. 
 
 Indictment. 
 
 Commencement as ante, p. 620] — feloniously, unlawfully and mali- 
 ciously did, by the explosion of a certain explosive substance, that is 
 to say, gunpowder, destroy (" destroy or damage") a certain building 
 
 situate in the parish of in the county aforesaid, with intent 
 
 thereby then feloniously, wilfully, and of his malice aforethought, one 
 J. N. to kill and murder; against the form [as ante, p. 347]. [Add 
 a count charging the intent to he " to commit murder."] 
 
 Felony : penal servitude for life or for not less than fiiee [27 & 28 
 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment, with or withmt 
 hard labour, and with or without solitary confinement (such confinement 
 not exceeding one month at any one time, nor three months in any one 
 year, 24 S 25 Vict. c. 100, s. 70, ante, p. 619), not exceeding liwo yean. 
 — 24 & 25 Vict. c. 100, s. 12. As to requiring the offender to enter into 
 recognizances and fimd sureties for keeping the peace. Id. s. 71, amte, 
 p. 619. 
 
 This offence is not friable at quarter sessions. 5 <fc 6 Vict, c. 38, s. 1 
 {ante, p. 104). 
 
 As to the proof of the act charged, and of its having been done 
 maliciously, see ante, pp. 521, 522. 
 As to the proof of the intent, see ante, p. 649. 
 
Attempts to Murder, 655 
 
 DESTROYING SHIPS WITH INTENT TO MUKDER. 
 
 Statute. 
 
 24 <& 26 Vict. c. 100, s. 13.] — Whosoever shall set fire to any ship 
 or vessel or any part thereof, or any part of the tackle, apparel, or 
 ftimiture thereof, or any goods or chattels being therein, or shall cast 
 away or destroy any ship or vessel, with intent in any of such cases 
 to commit murder, shall be guilty of felony, and being convicted 
 thereof shall be liable, at the discretion of the court, to be kept in 
 penal servitude for life or for any term not less than three years 
 [now five years, 27 <& 28 Vict. o. 47, s. 2, ante, p. 173], or to be im- 
 prisoned for any term not exceeding two years, with or without hard 
 labour, and with or without solitary confinement. 
 
 The indictment will be easily framed from the precedents, ante, 
 pp. 515, 516, 533, alleging the intent to murder, as in the precedent, 
 amte,p. 648. The evidence also will be the same as under the prece- 
 dents above mentioned, together with proof of the intent, as directed ante, 
 p. 649. 
 
 The punishment is the same as under the last precedent. 24 ife 25 
 Vict. c. 100, s. 13. 
 
 This offence is not triable at quarter sessions. 5 c§ 6 Vict. c. 38, s. 1 
 {ante, p. 104). 
 
 OTHER ATTEMPTS TO MURDER. 
 
 Statute. 
 
 24 <& 25 Vict. c. 100, s. 15.]— Whosoever shall, by any means other 
 than those specified in any of the preceding sections of this act, at- 
 tempt to commit murder, shall be guilty of felony, and being con- 
 victed thereof shall be liable, at the discretion of the court, to be 
 kept in penal servitude for life or for any term not less than three 
 years \now five years, 27 & 28 Vict, c, 47, s. 2, ante, p. 173], or to 
 be imprisoned for any term not exceeding two years, with or with- 
 out hard labour, and with or without solitary confinement. 
 
 Indictment. 
 
 Commencement as ante, p. 620] — feloniously, unlawfully and mali- 
 ciously did, by then [state the act] attempt feloniously, wilfully and 
 of his malice aforethought, one J. N. to kill and murder ; against the 
 form of the statute in such case made and provided, and against the 
 peace of our lady the Queen, her crown and dignity. [Add a count 
 cha/rging the intent to be " to commit murder."'] 
 
 Felony : see the last precedent. 24 (& 25 Vict. c. 100, s. 15. 
 
 No offence against this section is triable at qua/rter sessions. 5 (& 6 
 Vict. e. 38, s. 1 (ante, p. 104). 
 
656 Manslaughter. 
 
 Evidence. 
 
 Prove that the defendant committed or procnred the commission 
 of the overt act stated in the indictment ; and that it was done with 
 intent to murder, which of course may be implied from the nature of 
 the act itself, or may be proved by other evidence, or by threats or 
 declarations of the defendant to that effect {see ante, p. 208). 
 
 This provision is new, and includes every attempt to murder not 
 specified in any preceding section of 24 <£ 25 Vict. c. 100. It there- 
 fore embraces all those cases where machinery used in lowering 
 miners into mines has been injured with intent that it may break 
 and precipitate the miners to the bottom of the pit. So, also, all 
 cases where steam-engines are injured in order to kill any person 
 fall within it, as, also, cases of sending or placing infernal machines 
 with intent to murder. H. v. Mountford, B. <& M. C. C. 441 ; 7 C.dP. 
 242 ; 1 Buss. C. & M., In/ Greaves, 974, n. (h), 4th ed. 
 
 An attempt to commit suicide is not an attempt to commit murder 
 within the meaning of s. 16 of 24 & 25 Vict. c. 100, but still remains 
 a common law misdemeanor triable at quarter sessions. B. v. Bwrgess, 
 L. & a 258 ; 32 L. J. (M. C.) 55. 
 
 Sect. 2. 
 manslaughter. 
 
 Statute. 
 24 <6 25 Vict. c. 100, s. 5.] — ^Whosoever shall be convicted of 
 manslaughter shall be liable, at the discretion of the court, to be 
 kept in penal servitude for life, or for any term not less than three 
 years [now five yea/rs, 27 <& 28 Vict. c. 47, s. 2, ante, p. 173], or to he 
 imprisoned for any term not exceeding two years, with or without 
 hard labour, or to pay such fine as the court shall award, in addition 
 to or without any such other discretionary punishment as aforesaid. 
 
 Sect. 7 — Homicide not felonious.'] — No punishment or forfeiture 
 shall be incurred by any person who shall kill another by misfor- 
 tune, or in his own defence, or in any other manner without felony. 
 
 Indictment. 
 The form of the indictment for manslaughter is the same as an 
 indictment for murder, omitting the words "wilfully and of his malice 
 aforethought," and substituting the word " slay" for " murder." See 
 24 (fe 25 Vict. c. 100, s. 6 (ante, p. 617). It need not conclude contra 
 formam statuti. B. v. Chathum, 1 Mood. C. C. 402: B. v. Berry, 1 
 M. & Boh. 463. Nor is it necessary where the manslaughter arises 
 from an act of omission, that such act of omission should be stated 
 in the indictment. B. v. Smith, 11 Cox, 210. The evidence is also 
 the same, with this exception, that in murder the .prosecutor need 
 only prove the homicide, without going into evidence of the circum- 
 stances under which it was committed ; in manslaughter, he must 
 
Assault, etc. 657 
 
 give evidence of all the facts of the case, so as to prove the homicide 
 to be manslaughter. As to the oases in which a homicide amounts 
 to manslaughter only, and not to murder, see ante, p. 623 et seq. A 
 summary conviction for assault under s. 42 of 24 J 25 Viet. c. 100, 
 is not a bar to a subsequent indictment for manslaughter, upon the 
 death of the man assaulted, consequent upon the same assault. R. 
 V. Morris, L. R., 1 C. C. R. 90; 36 L. J. (M. C.) 84. 
 
 Manslaughter is felony, punishable mih penal servitude for life or 
 for not less than five [27 S 28 Vict. c. 47, s. 2, ante, p. 173] years, or 
 imprisonment, with or without hard labour, not exceeding two years, or 
 with fine, in addition to or without mch other punishment. — 24 <& 26 
 Vict. c. 100, s. 5. As to requiring the offender to enter into recog- 
 nisances amdfind sureties for keeping the peace. Id. s. 71, ante, p. 619. 
 
 This offence is not triable at quarter sessions. 5 cfe 6 Vict. c. 38, s. 1 
 {ante, p. 104). 
 
 Sect. 3. 
 assault, battery, wounding, etc. 
 
 Statute. 
 24 (£ 26 Vict. c. 100, s. 47 — Aggravated Assaults.'] — Whosoever 
 shall be convicted upon an indictment of any assault occasioning 
 actual bodily harm shall be liable, at the discretion of the court, to 
 be kept in penal servitude for the term of three years [noio five 
 years, 27 (& 28 Vict. c. 47, s. 2, ante, p. 173], or to be imprisoned 
 for any term not exceeding two years, with or without hard labour ; 
 and whosoever shall be convicted upon an indictment for a common 
 assault shall be liable, at the discretion of the court, to be impri- 
 soned for any term not exceeding one year, with or without hard 
 labour. 
 
 Sects. 74, 75 — Costs of Prosecution.'] — Ante, p. 620. 
 
 Indictment for an Assault occasioning actual Bodily Harm. 
 
 Central Criminal Court, to wit: — The jurors for our lady the Queen 
 upon their oath present, that J. S., on the first day of June, in the 
 
 year of our Lord , in and upon one J. N. did make an assault, 
 
 and him the said J. N. did then beat, wound and illtreat, [thereby 
 then occasioning to the said J. N. actual bodily harm,] and other 
 wrongs to the said J. N. then did, to the great damage of the said 
 J. N.; against the form [as ante, p. 347]. Where an indictment al- 
 leged that the defendant on Henry B. did make an assault, and him 
 the said William B. did beat, etc., it was held good in arrest of judg- 
 ment. R. V. Orespin, 11 Q. B. 913; 17 L. J. {M. C.) 128: see R. v. 
 Morris, 1 Leach, 109. The defendcmt may be convicted of a common 
 assault on this indictment. R. v. Oliver, Bell, 287; 30 L. J. (M. C.) 
 12: R. V. Yeadon, L. & C. 81; 31 L. J. {M. C.) 70. A conviction on 
 a cornit charging that the defendant assaulted the prosecutor, and 
 thereby unlawfully and maliciously inflicted upon him grievous bodily 
 p p 6 
 
658 Assault, etc. 
 
 harm, was held to be warranted by a finding of the jury in the following 
 terms (there being evidence of grievous bodily harm): " Guilty of an 
 aggravated assault, without prem,editation; it was done under the in- 
 fluence of passion." R. v. Sparrow, Bell, 298; 30 L. J. (if. C) 43. 
 
 Misdemeanor : penal servitude for five [27 & 28 Vict. c. 47, «, 2, ante, 
 p. 173] years, or imprisonment, with or without hard labour, iiot exceed- 
 ing two years. — 24 <& 25 Vict. c. 100, s. 47. If the indictment be for a 
 common assault only, omit the words between brachets, and conclude 
 " against the peace," etc., instead of " against the form," etc. In 
 such case the punishment is imprisonment, with or without hard labour, 
 not exceeding one year. Id. As to fining the offender amd requiring 
 him to enter into recognisances and find sureties for keeping the peace 
 and being of good behaviour. Id. s. 71, ante, p. 619. 
 
 As to adjudging payment by the defendant of the costs of the prose- 
 cution in case of conviction, see 24 d 25 Vict. c. 100, ss. 74, 75, ante, 
 p. 620. 
 
 The court will not pass judgment for an assault during the pendeney 
 of an action for the same assault. R. v. Mahon, i A. <& E. 675. 
 
 Evidence for the Prosecution. 
 
 Did make an Assault.'] — An assault is an attempt to commit a 
 forcible crime against the person of another ; such as an attempt to 
 commit a battery, murder, robbery, rape, etc. The present is an in- 
 dictment for an attempt to commit a battery, and also for a battery 
 actually committed ; and if the prosecutor prove either, the defendant 
 must be convicted. Striking at another with a cane, stick, or fist, 
 although the party striking misses his aim ; 2 Roll. Abr. p. 55i, pi. 
 45; drawing a sword or bayonet, or throwing a bottle or glass with 
 intent to wound or strike; presenting a loaded gun at a man who is 
 within the distance to which the gun will carry (see R. v. St. George, 
 9C.<&P. 483 : R. v. Baker, 1 C. <& K. 264 : Osbom v. Vdtch, 1 F. 
 & F. 317: Read v. Coker, 15 C. B. 850); pointing a pitchfork at him, 
 when within reach of it; or any other like act, indicating an inten- 
 tion to use violence against the person of another, is an assault. 1 
 Hawk. c. 62, s. 1. If a master take indecent liberties with a female 
 scholar, without her consent, though she does not resist, it is an 
 assault. R. v. Nichol, R. & R. 130: see R. v. Day, 9 C. (& P. 722. 
 But an attempt to commit the misdemeanor of having carnal 
 knowledge of a girl between ten and twelve years old, is not 
 an assault, if the girl consent. R. v, Meredith, 8 C. <6 P. 589: B. v. 
 Martin, 2 Mood. C. C. 123; 9 C. & F. 213, 215. See R v. Read, 
 1 Den. 377; 2 C. <& K. 967; 18 L. J. (M. C.) 88: R. v. Johnson, L. 
 & C. 632 ; 34 L. J. (M. C.) 192. The defendant in such a case should 
 be indicted not for an assault, but for an attempt to commit the ijiis- 
 demeanor described in 24 <fc 25 Vict. c. 100, s. 51, and upon such an 
 indictment the fact tliat the girl consented is immaterial. jB. v. 
 Beale, L. R., 1 C. C. R. 10; 35 L. J. (M. C.) 60. If a medical man 
 unnecessarily strip a female patient naked, under the pretence that 
 lie cannot otherwise judge of her illness, it is an assault, if he himself 
 take off her clothes. R. v. Rosinski, 1 Mood. C. C. 12. So, where a 
 medical man had connexion with a girl fourteen years of age, under 
 the pretence that he was thereby treating her medically for the com- 
 plaint for which he was attending her, she making no resistance 
 solely from the bond fide belief that such was the case, this was held 
 
Assault, etc. 659 
 
 to be certainly an assault, and pi-obably a rape. M. v. (Jose, 1 Den. 
 580; 19 L. J. (M. C.) 174. That case is an illustration of the law 
 laid down by Willes, J., in R. v. Bennett, iF.SF. 1105, that assault 
 is within the rule that fraud vitiates consent. Where, therefore, the 
 prisoner, who had venereal disease, induced a girl of thirteen years 
 of age, who was ignorant of his condition, to have connexion with 
 him, and he infected her, it was held that he was guilty of an inde- 
 cent assault. R. v. Bmnett, uhi supra. So, if parish officers cut off 
 the hair of a pauper in the poorhouse by force and against her will, 
 it is an assault. Porde v. Skinner, i C. a: P. 239. An unlawful im- 
 prisonment is also an assault. Where the defendants took a new- 
 born child from the mother, under pretence of taking it to an insti- 
 tution to be nursed, and put it into a bag, and hung the bag with 
 the child in it on some palings by the wayside, this was held to be 
 an assault. R. v. March, IC. & K. 496. Mere words, however, can 
 never amount to an assault. 1 Hawk. c. 62, s. 1. So, if a man strike- 
 at another, but at such a distance that he cannot by possibility toucli 
 him, it is no assault. Com. Dig. Battery (C). But if A. advance in 
 a threatening attitude towards B. to strike him, and be stopped just, 
 before he is near enough for his blow to take effect, it is an assault.. 
 Stephens v. Myers, i C. & P. 349. The causing a deleterious drug 
 to be taken by another was in one case holden to be an assault ; R^ 
 V. Button, % C. & P. 660 ; but that decision is now overruled; see R. 
 V. Dilworth, 1 M. & Rob. 531: R. v. Hanson, 2 C. <& K. 912 : R. v. 
 Wallcdm, cit. Id. 913. After an acquittal upon an indictment for 
 rape, the prisoner may be indicted lor a common assault. R. v. 
 Dungey, iF.& F. 99. 
 
 Did heat, woimd, and ill-treat.'] — A battery, in the legal acceptation 
 of the word, includes beating and wounding. To beat, also,, in the 
 legal acceptation of the term, means not merely to strike forcibly 
 with the hand, or a stick, or the like, but includes every touching or 
 laying hold (however trifling) of another's person or clothes, in an 
 angry, revengeful, rude, insolent, or hostile manner; 1 Hawk. c. 62, 
 «. 2; see Rawlings v. Till, Z M. & Tf. 28; Coward v. Baddeley, 4 H. 
 & N. 478; 28 L. J. (Exoh.) 260; as, for instance, thrusting or pushing 
 Jiim in anger^jer Holt, C. J., 6 Mod. 142; holding him by the arm; 
 spitting in his face; 6 Mod. 172; jostling him out of the way; 6 Mod. 
 149; pushing another man against him; Bull. N. P. 16; throwing a 
 squib at him; 2 W. Bl. 892; striking a horse upon which he is riding, 
 whereby he is thrown; 1 Mod. 24; W. Jones, 444; or the like. If a 
 man strike at another with a cane or fist, or throw a bottle at him, 
 or the like, if he miss him it is an assault; if he hit him it 
 is a battery. A wounding is where the violence is so great as to 
 draw blood, by striking or stabbing with a sword, knife, or other 
 instrument, or by shooting or by striking with a cudgel, or fist, or 
 the like. {See post, p. 66L) 
 
 By 8 £0 9 Vict. c. 100, s. 56, the abusing, ill-treating, or wilful 
 neglect of any patient in a private lunatic asylum, by any person 
 employed therein, is a misdemeanor. And by 16 (& 17 Vict. c. 96, 
 s. 9, the abusing, ill-treating, or wilful neglect of any patient in a 
 private lunatic asylum by any person employed therein, or of any 
 single patient by any person having the care or charge of any such 
 single patient, or by any attendant of any single patient, or the 
 
660 Assault, etc. 
 
 abusing, ill-treating, or wilful neglect of any lunatic or alleged 
 lunatic by any person detaining, or taking or having the care or 
 charge, or concerned or taking part in the custody, care or treatment 
 of any such lunatic or alleged lunatic, is a misdemeanor. A hus- 
 band having the care and charge of his wife, a lunatic, is not " a per- 
 son having the care or charge" of a lunatic within the meaning of 
 this section, which does not apply to persons whose care or charge 
 is purely of a domestic character. R. v. Rundle, Dears. 482; 24 
 L. J. (M. C) 129. But if a man voluntarily takes upon himself 
 the charge of a lunatic brother, and keeps him in his private house, 
 and wiliiilly neglects him, he is indictable for a misdemeanor under 
 this section. R. v. Porter, L. & C. 394; 33 L. J. {M. C.) 126. 
 See also R. v. Pelham, 8 Q. B. 959; 16 L. J. (M. C.) 105, which, 
 however, was decided before the passing of 16 d; 17 Vict. c. 96. 
 By 16 £§ 17 Vict. c. 97, s. 123, the striking, wounding, ill-treating, or 
 wilfiil neglect of any lunatic confined in a county or public lunatic 
 asylum by any person employed therein, is a misdemeanor; and by 
 23 (6 24 Vict. c. 75, s. 13, the striking, wounding, ill-treating, or 
 wilful neglect of any person confined in an asylum for criminal 
 lunatics, by any person employed therein, is a misdemeanor. It may 
 be noticed here that imbecility and loss of mental power, whether 
 arising from natural decay or from paralysis, softening of the brain, 
 or other natural cause, although unaccompanied by frenzy or delu- 
 sion of any kind, constitute unsoundness of mind amounting to 
 lunacy, within 8 <& 9 Vict. c. 100. R. v. Shaw, L. R., 1 C. C. R. 
 145; 37 L. J. (M. C.) 112. As to the assaulting or otherwise ill- 
 treating of apprentices and servants, see 24 <& 25 Vict. c. 100, «. 26, 
 post. 
 
 Thereby then occasioning actual bodily harm to the said J. N."] — 
 The " actual bodily harm" here mentioned would include any hurt or 
 injury calculated to interfere with the health or comfort of the prose- 
 cutor; it need not be an injury of a permanent character: fior need it 
 amount to what would be considered to be " grievous bodily harm." 
 (See post, p. 666.) 
 
 And other wrongs.'] — Under the alia emwrmia, yon may give in 
 evidence any circumstance of aggravation attending the assault and 
 battery, not of itself amounting to a distinct trespass. 2 Phil. Eo. 
 189. 
 
 Evidence for the Defendant. 
 
 The defendant must prove either that he is not guilty at all, or 
 that the facts of the case do not amount to an assault or battery, or 
 that he was justified or excused in law in what he did, or that the 
 complaint has been already disposed of upon summary application 
 before two justices; 24 S 26 Vict. c. 100, ss. 44, 45 (see ante, p. 134). 
 The iirst two defences are always given in evidence under the general 
 issue, both in civil and criminal cases; matter of justification or 
 excuse is specially pleaded in civil actions, but is always given in 
 evidence under the general issue in criminal cases; the last-mentioned 
 defence should be specially pleaded. 
 
 1. It is a good defence to prove that the alleged battery happened 
 by misadventure. If a horse run away with his rider, and run against 
 a man, it is no battery. Gibbons v. Pepper, 2 Salk. 637. If a soldier, 
 
Assault, etc. 661 
 
 in his ranliB, discharge his gun, and a man unexpectedly pass before 
 him at the time, and be hurt by it, it is no battery; Moor. 864; Hob. 
 134; and see R. v. GUI, 1 Str. 490. And there are many eases of 
 accidents which cannot be set up as a defence in an action for a 
 battery, that would certainly be a good defence upon an indictment; 
 in civil cases, the accident must have been inevitable, in order to 
 operate as an excuse; 2 Rol. Abr. 548 (G.) ; Sob. 134; Moor. 864; and 
 see Waheman v. Robinson, 1 Bing. 213: Underwood v. Sewson, 1 Str. 
 596 ; but, in criminal cases, it may be deemed a general rule, that 
 the same facts' which would make a killing homicide by misadven- 
 ture (see ante, p. 635 et seq.), will be a good defence upon an indict- 
 ment for a battery. 
 
 2. It is a good defence to prove that the alleged battery was merely 
 an amicable contest; as, that he wrestled with the prosecutor for a 
 wager. Com. Dig., Pleader, 3 M. 18. So, that it happened by acci- 
 dent whilst the defendant was engaged in some sport or game which 
 was neither unlawful nor dangerous (see ante, p. 636), is a good 
 defence. 
 
 3. It is a good defence to prove that the alleged battery was 
 merely the correcting of a child by its parent, the correcting of a 
 servant or scholar by his master, or the punishment of the criminal 
 by a proper officer; Com. Dig., Pleader, 3M. 19; 1 Sawk. c. 60, «. 23; 
 c. 62, s. 2; and see iBos. dP. 224; provided the correction be mode- 
 rate in the manner, the instrument, and the quantity of it, or that the 
 criminal be punished in the manner appointed by the law. (See a/nte, 
 p. 634.) It has been holden that the defendant may justify even a 
 mayhem, if done by him as a military officer, for disobedience of 
 orders. Lane v. Degberg, Bull. N. P. 12. 
 
 4. It is a good defence, in justification even of a wounding or may- 
 hem, to prove that the prosecutor assaulted or beat the defendant 
 first; and that the defendant committed the alleged battery merely 
 in his own defence. 1 Sid. 246; 1 Rol. Rep. 19; 2 Salh. 642; 3 Salk. 
 46. If he prove an assault merely, as, for instance, that the prose- 
 cutor lifted up his staff and offered to strike him, it is sufficient to 
 justify the defendant's striking him: for he need not, in such a case, 
 stay till the other has actually struck him. Bull. N. P. 18; 2 Rol. 
 A br. 547, I. 37. So a husband may justify a battery in defence of 
 his wife, a wife in defence of her husband, a parent in defence of his 
 child, a child in defence of his parent, a master in defence of his 
 servant, and a servant in defence of his master. 2 Rol. Abr. 546 
 (D.); 1 Hawh. c. 60, ss. 23, 24. But, in all these cases, the battery 
 must be such only as was necessary to the defence of the party or 
 his relation; for if it were excessive, if it were greater than was 
 necessary for mere defence, or if it were after all danger from the 
 assailment was past, and by way of revenge, the prior assault will be 
 no justification. Bull. N. P. 18: R. v. Driscoll, (f. d Mar. 214. Also 
 it will be a sufficient answer to this defence, to prove that the first 
 assault was justifiable. Com. Dig., Pleader, 8 M. 15; 1 Salk. 407 ; 
 CaHh. 280 (see ante, pp. 630, 631). 
 
 5. The defendant may justify a battery, by proving that he com- 
 mitted it in defence of his possession; as, for instance, to remove the 
 prosecutor out of the defendant's close or house; Lutw. 1465; Hard. 
 358; or to prevent him from entering it; 2 Rol. Abr. 548, I. 25; to 
 restrain him from taking or destroying his goods, etc.; 2 Rol. Abr. 
 549, 1. 7; from taking or rescuing cattle, etc., in his custody upon a 
 
662 Assault, etc. 
 
 distress; Id. I. 16; 2 Bro. Ent. 253; or the like. In the case of a 
 trespass in law mei-ely, without actual force, the owner of the close, 
 etc., must first request the trespasser to depart, before he can justify 
 laying his hand on him for the purpose of removing him; and, even 
 if he refuse, he can only justify so much force as is necessary to re- 
 move him. Weaver V. Bush, 8 T.B.I 8. See 2 Bol. Abr. 54^, I 35, 
 45; 2 Salk. 641. But if the trespasser use force, then the owner 
 may oppose force to force ; 2 Salk. 641 ; 8 T.B, 78; I C. (& P. 6; 
 and in such case, if he be assaulted or beaten, he may justify even a 
 wounding or mayhem in self-defence, as above mentioned. In an- 
 swer, however, to a justification in defence of his possession, the 
 other party may prove that the battery was excessive; Skin. 387; 
 LutiB. 1436; or justify the alleged trespass on the defendant's pos- 
 session, by proving that he had a right of way over the close, or the 
 like. 
 
 6. It is a good defence to prove that the defendant, as an officer of 
 justice, arrested the prosecutor by virtue of a certain writ of process, 
 which is the alleged battery complained of. 2 Bol. Abr. 647 (A.) 
 A sheriff's officer, however, can only justify laying his hand upon a 
 man, in order to arrest him upon a writ of process. Marrisony. 
 Hodgson, 10 B. <& C. 445, unless he resist, or an attempt be made 
 to rescue him ; 1 L. Baym. 222; 2 Str. 1049; \C.&P. 40; and even 
 then he can justify no greater degree offeree than was necessary in 
 order to secure the prisoner. And the same as to officers of justice, 
 and persons acting in their aid, arresting on suspicion of felony, with- 
 out warrant ; and as to private persons arresting men committing 
 felonies in their presence, see ante, p. 646. So, a man may justify 
 laying his hand upon another to prevent him from fighting, or com- 
 mitting a breach of the peace ; Com. Dig., Pleader, 3 Jf. 16; or to 
 prevent him from rescuing goods taken in execution : 3 Leu. 113; or 
 the like. See 1 Mod. 168; 2 Bol. Air. 546, I. 40. Yet, even in 
 these cases, he must not use more force than is requisite to restrain 
 the other party, otherwise he cannot avail himself of the threatened 
 breach of the peace, etc. as a justification. A coroner, GametiT, 
 Ferrand, 6 B.S C. 618, and a magistrate upon a preliminary inquiiy. 
 Cox V. Coleridge, 1 B. d; C. 37, may justify a forcible exclusion of 
 a party from the justice-room, even though he be the attorney of 
 the party accused ; but if the inquiry be final and of a judicial nature, 
 all persons have a right to be present. Daubney v. Cooper, 10 B- 
 & a 237. See&dil W. 4, c. 114, s, 2 ; 11 ^ 12 Vict c. 42, s. 19. 
 
 7. It is a good defence to show that the complaint has been dis- 
 posed of by two justices, either by cgnviotion or dismissal of the case, 
 provided, in the former case, the defendant has paid the penalty, and 
 suffered the imprisonment awarded : and, in the latter, the magiS' 
 trates have dismissed the case, because it was justified, or so trifling 
 as not to merit punishment, or not proved, and this be forthwith cer- 
 tified under their hands. 24 tfc 25 Vict. c. 100, ss. 44, 45, ante,p. 134. 
 The magistrates have no power to hear and determine any assault 
 involving a question of title to lands, etc., or any interest therein, or 
 relating to any bankruptcy or insolvency, or any execution under the 
 process of any court of justice ; and if the assault be accompanied 
 by any attempt to commit felony, or, in their opinion, be a fit sub- 
 ject for a prosecution by indictment, they may abstain fi-om any 
 adjudication, and leave the case to be prosecuted by indictment. 
 24 c6 25 Vict. clOO,. s, 46 ; see Anon., 1 B. <& Ad. 382. As to the 
 
Assault, etc. 663 
 
 mode of pleading this defence and its effect, see cmte, p. 135. It 
 is to be observed, that these provisions do not prevent the pro- 
 secutor from preferring his indictment in the first instance, if he 
 think fit. 
 
 SHOOTING, WOUNDING, ETC., WITH INTENT TO MAIM, ETC. 
 
 Statute. 
 24 <& 25 Viet. c. 100, s. 18.] — Whosoever shall unlawfully and mali- 
 ciously by any means whatsoever wound or cause any grievous bodily 
 harm to any person, or shoot at any person, or, by drawing a trigger, 
 or in any other manner attempt to discharge any kind of loaded arms 
 at any person, with intent, in any of the cases aforesaid, to maim, 
 disfigure, or disable any person, or to do some other grievous bodily 
 harm to any person, or with intent to resist or prevent the lawful 
 apprehension or detainer of any person, shall be guilty of felony, and 
 being convicted thereof shall be liable, at the discretion of the court, 
 to be kept in penal servitude for life, or for any term not less than 
 three years [now five years, 27 <& 28 Vict. c. 47, s.,2, ante, p. 173], or 
 to be imprisoned for any term not exceeding two years, with or 
 without hard labour, and with or without solitary confinement. 
 
 Sect.lQ — Unlawfully woimding.'] — Whosoever shall unlawfully and 
 maliciously wound or inflict any grievous bodily harm upon any 
 other person, either with or without any weapon or instrument, shall 
 be guilty of a misdemeanor, and being convicted thereof shall be 
 liable, at the discretion of the court, to be kept in penal servitude 
 for the term of three years [now five years, 27 d; 28 Viet. c. 47, s. 2, 
 ante, p. 173], or to be imprisoned for any term not exceeding two 
 years, with or without hard labour. 
 
 Indictment for Woimding, with Intent to Maim, etc. 
 
 Central Criminal Court, to wit : — The jurors for our lady the Queen 
 upon their oath present, that J. S., on the first day of June, in the 
 year of our Lord , one J. N. feloniously, unlawfully and mali- 
 ciously did wound, with intent in so doing him the said J. N., thereby 
 then to maim ; against the form of the statute in such case made and 
 provided, and against the peace of our lady the Queen, her crown and 
 dignity. (2nd Count) — And the jurors aforesaid, upon their oath 
 aforesaid, do further present, that the said J. S. afterwai-ds, to wit, on 
 the day and year aforesaid [etc., as in the last Count], with intent in 
 so doing him the said J. N. thereby then to disfigure ; against the 
 form of the statute, etc. {3rd Count.) — Same as the last ; with in- 
 tent in so doing him the said J. N. thereby then to disable ; against 
 the form, etc. (4i/i Count.') — Same as the last; with intent in so 
 doing him the said J. N. thereby then to do some grievous bodily 
 harm; against the form, etc. (5th Covmt.) — Same as the last; with 
 intent in so doing thereby then to prevent (" resist or prevent ") the 
 lawful apprehension (" apprehension or detainer ") of the said J. S. 
 
664 Assault, etc. 
 
 Q' any person") ; against the form, etc. An indictment chargmg (he 
 act to have been done ^^feloniously, wilfully, and maliciously," is bad, 
 the words of the statute -being '^unlawfully and maliciously," R. v. 
 Ryan, 2 Mood. C. C. 15. In practice, the first count of the indictment 
 is generally for wounding with intent to murder. {See ante, p. 648.) 
 These coumts were allowed to be joined in the same indictment, even 
 when the punishments of the several offences specified in them were 
 different. R. v. Strange, 8 C. <& P. 172. 
 
 Felony: penal servitude for life or for not less than five [27 <fe 28 
 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment not exceeding two 
 years, with or vnthout hard labour, and with or without solitary confine- 
 ment {such confinement not exceeding one month at any one time, nor 
 three months in any one year, 24 d> 25 Vict. c. 100, s. 70, ante, p. 619). 
 — 24 & 25 Vict. c. 100, 8. 18. As to requiring the offender to enter 
 into recognizances and, find sureties for keeping the peace. Id. s. 71, 
 ante, p. 619. 
 
 This offence is not triable at quarter sessions. 5 cfc 6 Vict. c. 38, s. 1 
 {ante, p. 104). 
 
 Evidence. 
 
 Feloniously, vmlawfully, and maliciously.'] — By stat. 9 O. 4, c. 31, 
 s. 12, it was necessary that the offence should have been committed 
 under such circumstances, that if death had ensued therefrom, it 
 would have amounted to murder. This proviso was omitted in the 
 statute 7 PF. 4 <£ 1 Vict. c. 85, s. 4, and is not contained in the present 
 statute, which would seem therefore to include every wounding, etc. 
 done without lawful excuse with any of the intents mentioned in the 
 statute, for from the act itself malice will be inferred. The word 
 " maliciously" in the statute does not mean with malice aforethought; 
 for if it did, the offence would be included under the 14th section. 
 The offence is therefore equally within this section, although if death 
 had ensued, it would have been manslaughter only. R. v. Griffiths, 
 8 C.d P. 248 : R. v. Nicholls, 9 C. <& P. 267 : Anon., 2 Mood. C. C. 
 40. 
 
 The instrument or means by which the injury was inflicted 
 need not be stated in the indictment, and if stated, need not be 
 proved as laid. R. v. Briggs, 1 Mood. C. C. 318. Upon an indict- 
 ment which charged a wound to have been inflicted by striking with 
 a stick and kicking with the feet, proof that the wound was caused 
 either by striking with a stick or kicking was holden sufficient, 
 though it was uncertain by which of the two the injury was inflicted. 
 Id. 
 
 Did wornid.'] — Under the repealed acts, which used the words 
 " stab, cut, or wound," if the indictment was for cutting, evidence of 
 a stabbing would not support it, the words being in the alternative. 
 R. V. M'DennoU, R. & R. 356. Under the words " stab" or " cut," 
 an incised wound must have been proved ; a mere contused or lace- 
 rated wound was not within those words. This gave occasion to 
 many failures of justice. But it is now unnecessary further to refer to 
 the cases decided on this subject under those acts, since the present 
 statute has only the word " wound" and that word includes incised 
 wounds, punctured wounds, lacerated wounds, contused wounds, and 
 gun-shot wounds. See Shea v. R., 3 Cox, 141. But to constitute a 
 wound within the meaning of the statute, the continuity of the skin 
 
Assault, etc. 665 
 
 must be broken ; E. v. Wood, 1 Mood. C. C. 278 ; or, in other words, 
 the outer covering of the body (that is, the whole shin, not the mere 
 cuticle or upper skin, R. v. McLaughlin, i C. & P. 635), must be 
 divided. R. v. Bechet, X M. & Rob. 526. See R. v. Smith, 8 C. d- 
 P. 173. But a division of the internal skin — e. g., within the cheek 
 or lip — is sufficient to constitute a wound within the statute. R. v. 
 Smith, 8 as P. 173 : R. v. Warman, 1 Den. 183 ; i C. & K. 195. 
 If the skin be broken, the nature of the instrument with which the 
 injury is inflicted is immaterial. Thus, a wound from a kick with a 
 slice is within the statute. R. v. Briggs, 1 Mood. C. C. 318. And 
 where a hammer was thrown at a person, which struck him on the 
 nose, and broke the skin, it was holden to be a wound within the 
 meaning of the repealed act 7 W. i d 1 Vict. c. 85, s. 4. R. v. 
 Withers, 1 Mood. C. C. 294. See R. v. Payne, iC.dP. 558. Where 
 the defendant struck the prosecutor on the outside of his hat violently 
 with an air-gun, and the hat wounded the prosecutor, but the air-gun 
 never came in contact with the prosecutor, it was held to be a 
 wounding. R. v. Sheard, 2 Mood. C. C. 13 ; T C. d P. 846. Under 
 the former statutes, however, it was necessary that some instrument 
 should be used ; therefore, where the defendant bit off the prosecutor's 
 finger, it was held not to be a wounding within the 9 G. 4, c. 31, s. 12. 
 R. T. Stevens, 1 Mood. C. C 409 : R. v. Harris, 1 C. & P. 446. So, 
 also, where the defendant threw vitriol in the prosecutor's face, and 
 So wounded him, it was held not to be within the same act. R. v. 
 Murrow, 1 Mood. C. C. 456 : (see now 24 & 25 Vict. c. 100, s. 29, post, 
 p. 672). The judges decided under the repealed stat. 9 G. 4, c. 31, 
 ss. 11, 12, that the " wound" must be made by an instrument, because 
 the word "wound" is there used concurrently with "stab" and "cut;" 
 and inasmuch as a stab or cut must be made by an instrument, they 
 thought that the legislature intended by the word "wound" an injury 
 (not being a stab or cut) which was made by an instrument also. 
 Per Alderson, B.,' in R. v. Jennings, 2 Lewin, 130. But the present 
 statute extends to wounding, etc., " hy any means whatsoever." The 
 wound must be given by the act of the defendant; for if in self- 
 defence the prosecutor force a part of his body against an instrument 
 in the defendant's hands, and so cut or wound himself, it is not within 
 the statute. R. v. Bechet, 1 M. & Rob. 526. 
 
 The statute extends to three species of assaults ; namely, 1. To 
 " wound or cause any grievous bodily harm to any person ;" 2. To 
 " shoot at" any person ; 3. To attempt, " by drawing a trigger, or in 
 any other manner," to discharge any kind of loaded arms at any per- 
 son. And each of these may be done with any one of the following 
 intents; namely, 1. To maim; 2. To disfigure; 3. To disable; 4. To 
 do some other grievous bodily harm ; 5. To resist or prevent the 
 lawful apprehension or detainer of any person. 
 
 With Intent, etc.'] — In order to convict of the felony, the intent 
 must be proved as laid ; hence the necessity of several counts charg- 
 ing the offence to have been committed with different intents. If an 
 indictment allege, that the defendant cut the prosecutor with intent 
 to murder, to disable, and to do some grievous bodily harm, it will 
 not be supported by proof of an intention to prevent a lawful appre- 
 hension ; R. v. Duffin, R. & R. 365 : R. v. Boyce, 1 Mood. C. C. 29 ; 
 unless, for the purpose of effecting his escape, the defendant also 
 harboured one of the intents stated in the indictment ; R. v. Gillow, 
 1 Mood. C. C. 85; for, where both intents exist, it is immaterial which 
 
6o6 Assault, etc. 
 
 is the principal and which the subordinate. Therefore, -where, in 
 order to commit a rape, the defendant cut the private parts of an 
 infant, and thereby did her grievous bodily harm, it was holden that 
 he was guilty of cutting with intent to do her grievous bodily harm, 
 notwithstanding his principal object was to commit the rape. R. v. 
 Cox, R. & R. 362. So, also, if a person wound another in order to rob 
 him, and thereby inflict grievous bodily harm, he may be convicted 
 on a count charging him with an intent to do grievous bodily harm. 
 R. V. Bowen, C. tfe Mar. 149. The intent, of course, can be proved 
 by presumptive evidence only. (Ante, p. 235.) It must be proved 
 as laid ; where, therefore, the defendant struck at A., but B. inter- 
 posing, received the blow, and was wounded, it was held that the 
 defendant could not be convicted of wounding B., with intent to do 
 him grievous bodily harm. R. v. Hewlett, IF. & F. 91. See R. v. 
 Eolt, 7 C.&P. 618: R. v. Ryan, 2 M. <& Rob. 213 (ante,pp. 649, 653). 
 Under the present statute, however, it is sufficient if it be proved 
 that the defendan,t wounded, etc., shot at, etc., any person, with intent 
 to maim, etc. amy person; therefore, in the case just cited, the de- 
 fendant might now be convicted of wounding B. with intent to do 
 grievous bodily harm to A. And a person who fires a loaded pistol 
 into a group of persons, not aiming at any one in particular, but in- 
 tending generally to do grievous bodily harm, and who hits one of 
 them, may be convicted on an indictment charging him with shooting 
 at the person he has hit with intent to do grievous bodUy harm to 
 that person. R. v. Fretwell, L. <& (J. 443 ; 33 L. J. (M. C.\ 128. If 
 it be doubtful whether the act was done by accident or design, other 
 circumstances may be given in evidence to prove the intent. (Ante, 
 p. 208.) In the case of R. v. Coke and Woodbum, 6 St. Tr. 212, the 
 defendants had the effrontery to set up as a defence, that the assault 
 was committed by them with intent, not to maim or disfigure, but to 
 murder ; the court, however, held, that if a man attack another with 
 intent to murder him, with an instrument which cannot but endanger 
 the disfiguring of hijn, and in such attack happen not to kill, but 
 only to disfigure him,jfc was within the repealed statute 22 & 23 0. 2, 
 c. 1, s. 7, which made it felony to commit any of the ofiences there 
 mentioned, with intent to maim or disfigure. The defendants were 
 accordingly convicted and executed. 4 Bl. Com. 207, n. (h). 
 
 With respect to the intents mentioned in the statute, it may he 
 useful to observe, that to maim is to injure any part of a man's body 
 which may render him, in fighting, less able to defend himself, or 
 annoy his enemy. 1 Hamk. c. 44, s. 1 ; see R. v. Sullivam, C. <b Uar. 
 209. To disfigure, is to do some external injury which may detract 
 from his personal appearance; and to disable, is to do something 
 which creates a permanent disability, and not merely a temporary 
 injury. See R. v. Boyee, 1 Mood. C. C. 29. It is not necessary that 
 a grievous bodily harm, should be either permanent or dangerous ; if 
 it be such as seriously to interfere with health or comftxrt that is 
 sufficient ; and therefore, where the defendant cut the private parts 
 of an infant, and the wound was not dangerous, and was small, but 
 bled a good deal, and the jury found that it was a grievous bodily 
 harm, it was holden that the conviction was right. R. v. Cox, B. S 
 R. 362 : see R. v. Ashman, \ P. & F. 88. Where the intent laid is 
 to prevent a lawful apprehension, it must be shown that the arrest 
 would have been lawful (see amte, p. 640 et seq.) ; and where the cir- 
 cumstances are not such that the party must know why he is about 
 to be apprehended, R. v. Howarth, 1 Mood. C. C- 207 (ante, p. 642), 
 
Assault, etc. 667 
 
 it must be proved that he was apprised of the intention to apprehend 
 him. a. V. Eicketts, 3 Camp. 68. If the prosecutor fail in proving 
 the intent, the defendant, by virtue of 14 c6 15 Vict. c. 19, s. 5, ante, 
 p. 648, may be convicted of the misdemeanor of unlawfully wounding 
 and receive sentence of penal servitude for five years, or imprison- 
 ment not exceeding two years, with or without hard labour. 24 (& 
 25 Vict. e. 100, s. 20, ante, p. 663. (See post, p. 668.) 
 
 Indictment for Shooting with Intent to Maim. 
 
 Commmcement as ante, p. 620]— a certain gun, then loaded with 
 gunpowder and divers leaden shot, at and against one J. N. felo- 
 niously, imlawfuUy, and maliciously did shoot with intent in so doing 
 the said J. N. thereby then to maim ; against the form [as ante, p. 
 347]. Add counts stating the various intents mentioned in the statute, 
 as in the last precedent. In practice the first count is for shooting with 
 intent to murder, as ante, p. 652. 
 
 Felony: 24 & 25 Vict. c. 100, s. 18. See the last precedent. 
 
 This offence is not triable at quarter sessions. 5 <& 6 Vict. c. 38, s. 1 
 (ante, p. 104). 
 
 Evidence. 
 Prove the shooting as directed ante, p. 652. Prove the intent as 
 laid in some one of the counts (see omte, p. 665). 
 
 Indictment for attempting to Shoot, with Intent to Maim, etc. 
 
 Commencement as ante, p. 620] — by drawing the trigger (" draw- 
 ing a trigger or in any other manner") of a certain pistol (" any kind 
 of loaded arms"), then loaded and charged with gunpowder and one 
 leaden bullet, feloniously, unlawfully, and maliciously did attempt to 
 discharge the said pistol, so loaded and charged as aforesaid, at and 
 against one J. N., with intent [etc., as in the last precedent but one]. 
 
 Felony : 24 (6 25 Vict. c. 100, «. 1 8. See the last precedent hut one. 
 
 This offence is not triable at quarter sessions. 5 <6 6 Vict. c. 38, s. 1 
 (ante, p. 104). 
 
 Evidence. 
 
 Prove the attempt to shoot, as directed ante, p. 653 ; and the intent, 
 as under the last two precedents. If a person, intending to shoot 
 another, put his finger on the trigger of a loaded fire-arm, but is pre- 
 vented from pulling the trigger, this is not an attempt to discharge 
 loaded arms within the statute. M. v. St. George, 9 C. t& P. 483 : 
 a. V. Lewis, Id. 523. But the presenting of a loaded pistol at another 
 is an assault. E. v. St. George, supra: E. v. Baker, 1 C. & K. 254. 
 And semble, though the pistol be not in fact loaded, if it be pre- 
 sented so near the person of another as that it would have endangered 
 him had it been loaded and gone off, and he be ignorant that it is 
 not loaded, that is an assault. Id.; butseeE.v. James,! C.(& K. 530, 
 contra. 
 
 Any gun, pistol, or other arms, loaded in the barrel with gun- 
 powder or other explosive substance, and ball, shot, slug, or other 
 destructive material, are loaded arms, within the meaning of the 
 statute, although the attempt to discharge them may fail from want 
 
668 Assault, etc. 
 
 of proper priming, or from any other causes. 24 <fe 25 Vict, e. 100, 
 «. 19, ante, p. 651. See B. v. Gamble, 10 Cox, 545, ante, p. 654. 
 
 Indictment for wnlaxofully Wowndinff^ 
 
 Commencement as ante, p. 620] — one J. N. unlawfully and malici- 
 ously did wound (" wound or inflict amy grieoous bodily harm upon") ; 
 against the form [as ante, p. 347]. Add a count charging that the 
 defendant " did inflict grievous bodily harm upon J. N." (see ante, 
 p. 666). The defendant may be convicted of a comm/m assault upon 
 this indictment. R. v. Taylor, L. R., 1 C. C. R. 194 ; 38 L. J. (M. C.) 
 106, ante, p. 211. 
 
 Misdemeanor: penal servitude for five [27 <& 28 Vict. c. 47, s. 2, 
 ante, p. 173] years, or imprisonment not exceeding two years, with or 
 without hard labour. — 24 & 25 Vict. c. 100, s. 20, ante, p. 663. A»to 
 fining the offender and requiring him to enter into recognizances and- 
 find sureties for keeping the peace and being of good behaviour. Id. s. 71, 
 ante, p. 619. 
 
 The defendant may be convicted of unlawfully wounding, andpmdshed 
 wider this section, upon an indictment charging a felonious wounding, 
 where the prosecutor fails in proving the felonious intent: 14 & 15 
 Vict. c. 19, s. 5, ante, p. 648. The evidence will be the same as on 
 such indictment, except as to the proof of the intent. 
 
 ATTEMPTING TO CHOKE, SUFFOCATE, OR STEANGLE, ETC., WITH 
 INTENT, ETC. 
 
 Statutes. 
 24 & 25 Vict. c. 100, s. 21.] — Whosoever shall, by any means 
 whatsoever, attempt to choke, suffocate, or strangle any other per- 
 son, or shall by any means calculated to choke, suffocate, or strangle, 
 attempt to render any other person insensible, unconscious, or in- 
 capable of resistance, with intent in any of such cases thereby to 
 enable himself or any other person to commit, or with intent in any 
 of such cases thereby to assist any other person in committing, any 
 indictable offence, shall be guilty of felony, and being convicted 
 thereof shall be liable, at the discretion of the court, to be kept in 
 penal servitude for life or for any term not less than three years 
 [now five years, 27 & 28 Vict. c. 47, s. 2, ante, p. 173], or to be im- 
 prisoned for any term not exceeding two years, with or without hard 
 labour. 
 
 26 & 27 Vict. c. 44 — Power to award Punishment (f Whipping!]— 
 Ante, p. 410. 
 
 Indictment. 
 
 Commencement as ante, p. 620] — feloniously and unlawfully did 
 attempt, by then [state the means — " by any means whatsoever"], to 
 choke, suffocate, and strangle one J. N. (" chohe, suffocate, or stramgte 
 any person," or "by any means calculated to chohe, suffocate, or strangle, 
 
Assault, etc. 669 
 
 attemjpt to render any person insensible, vneonscious, or incapable of 
 resistance"), with intent thereby then to enable him the said J. S. the 
 monies, goods, and chattels of the said J. N., from the person of the 
 said J. N., feloniously and unlawfully to steal, take, and carry away, 
 (" with inteurU to enable himself or any other person to commit," or " to 
 assist any other person in committing, any indictable offence"); against 
 the form [as ante, p. 347]. Add counts varying the statement of the 
 overt acts, cmd of the intent. 
 
 Felony : penal servitude for life or for not less than Jive [27 <fc 28 
 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment, with or without 
 hard labour, not exceeding two years. — 24 <fc 25 Vict. e. 100, s. 21. 
 The court before which the prisoner is convicted may also, in addition 
 to the punishment of penal servitude or imprisonment, direct that, if a 
 male, he be once, twice, or thrice privately whipped, subject to the fol- 
 hviing provisions: — 1. In the case of an offender whose age does not 
 exceed sixteen years, the number of strokes at each whipping shall not 
 exceed twenty -five, and the instruTnent used shall be a birch-rod. 2. In 
 ■ the case of any other male offender, the number of strokes shall not 
 exceed fifty at each whipping. 3. In each case the court in its sentence 
 shall specify the number of strokes and the instrument to be used. The 
 whipping is not to take place after the expiration of six months from 
 the passing of the sentence, and, in the case of a person sentenced to 
 penal servitude, is to be inflicted before his removal to a convict prison. 
 26 <& 27 Viet. c. 44 (onte, p. 410). As to requiring the offmder to 
 enter into recognizances cmd find siwreties for keeping the peace, 24 <fc 
 25 Vict. c. 100, s. 71, ante, p. 619. 
 
 This offence is not triable at quarter sessions. 5 c6 6 Vict. c. 38, 
 s. 1 (ante, p. 104). 
 
 Evidence. 
 
 Prove the attempt by the defendant to choke, suffocate, or strangle 
 the prosecutor, by the means stated in the indictment, and the intent 
 as directed ante, p. 665. 
 
 ADMINISTERING, ETC., CHLOROFORM, ETC., TO COMMIT INDICTABLE 
 OFFENCES. 
 
 Statute. 
 
 24 (6 25 Vict. c. 100, s. 22.] — Whosoever shall unlawfully apply or 
 administer to or cause to be taken by, or attempt to apply or ad- 
 minister to, or attempt to cause to be administered to or taken by, 
 any person, any chloroform, laudanum, or other stupefying or over- 
 powering drug, matter, or thing, with intent in any of such cases 
 thereby to enable himself or any other person to commit, or with 
 intent in any of such cases thereby to assist any other person in 
 committing, any indictable offence, shall be guilty of felony, and 
 being convicted thereof shall be liable, at the discretion of the court, 
 to be kept in penal servitude for life, or for any other term not less 
 than three years [now five years, 27 d 28 Vict. c. 47, s. 2, ante, p. 173], 
 or to be imprisoned for any term not exceeding two years, with or 
 without hard labour. 
 
670 Assault, etc. 
 
 Indictment. 
 
 Commencement as ante, p. 620] — feloniously and unlawftilly did 
 apply and administer to one J. N. (" apply or administer to or cause to 
 be taken hy, or attempt to apply or administer to, or attempt to cause to 
 be administered to or taken by") certain chloroform (" any chloroform, 
 lavdanum, or other stupefying or overpowering drug, matter, or thijig") 
 with intent thereby then to enable him the said J. S. [or one A. B.] 
 the monies, goods and chattels of the said J. N., from the person of 
 the said J. N., feloniously and unlawfully to steal, take, and carry 
 away (" with intent thereby to enable himself or any other person to 
 commit, or with intent thereby to assist any other person in committing 
 any indictable offence") ; against the form [as ante, p. 347]. 
 
 If it be not certain that it was chloroform (or laudanum) that was 
 administered, add a count or counts stating it to be " a certain stupefy- 
 ing and overpowering drug and matter, to the jurors aforesaid un- 
 known." Add also counts varying the intent, if necessary. 
 
 Felony : penal servitude for life or for not less than five [27 Sf 28 
 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment, with or without 
 hard labour, not exceeding two years. — 24 Sj- 2.5 Vict. C. 100, s. 2-i. 
 As to requiring the offender to enter into recognizances and find 
 sureties for keeping the peace, Id. s. 71, ante, p. 619. 
 
 This offence is not triable at quarter sessions. 5 SfQ Vict. c. 38, s. 1 
 {ante, p. 104). 
 
 Prove that the defendant administered or assisted in administering 
 chloroform (or laudanum, or other stupefying or ovei'powering drug, 
 etc.), as stated in the indictment. If the drug, etc., be not named in 
 the indictment, evidence must be given to show that it was of a 
 stupefying or overpowering nature, calculated to aid the offender in 
 the commission of a felony. Then prove the intent, as directed ante, 
 p. 208. In practice the ordinary evidence of the intent will be that 
 the prosecutor was robbed or otherwise injured while under the in- 
 fluence of the drug, etc. 
 
 ADMINISTERING, ETC., POISON, ETC., WITH INTENT tO ENDANGER 
 LIFE, ETC., OE TO INJURE, ETC. 
 
 Statute, 
 
 24 S 25 Vict. c. 100, s. 23.]— Whosoever shall unlawfully and mali- 
 ciously administer to or cause to be administered to or taken by any 
 other person any poison or other destructive or noxious thing, so as 
 thereby to endanger the life of such person, or so as thereby to in- 
 flict upon such person any grievous bodily harm, shall be guilty of 
 felony, and being convicted thereof shall be liable, at the discretion 
 of the court, to be kept in penal servitude for any term not exceed- 
 ing ten years and not less than three years \nowfive years, 27 & 28 
 Vict. c. 47, «. 2, ante, p. 173], or to be imprisoned for any term not 
 exceeding two years, with or without hard labour. 
 
Assault, etc. 671 
 
 Sect. 24.] — Whosoever shall unlawfully and maliciously administer 
 to or cause to be administered to or taken by any other person any 
 poison or other destructive or noxious thing, with intent to injure, 
 aggrieve, or annoy such person, shall be guilty of a misdemeanor, 
 and being convicted thereof shall be liable, at the discretion of the 
 court, to be kept in penal servitude for the term of three years [reoio 
 five years, 27 d> 28 Vict. c. 47, s. 2, amte, p. 173], or to be imprisoned 
 for any term not exceeding two years, with or without hard labour. 
 
 Sect. 25.] — If, upon the trial of any person for any felony in the 
 last but one preceding section mentioned, the jury shall not be satis- 
 fied that such person is guilty thereof, but shall be satisfied that he 
 is guilty of any misdemeanor in the last preceding section men- 
 tioned, then and in every such case the jury may acquit the accused 
 of such felony, and find him guilty of such misdemeanor, and there- 
 upon he shall be liable to be punished in the same manner as if con- 
 victed upon an indictment for such misdemeanor. 
 
 Indictment for administering Poison so as to endanger Life, etc. 
 
 Canumencement as ante, p. 620]^-feloniously, unlawfully, and mali- 
 ciously did administer to one J.N. (" administer to or cause to he ad- 
 ministered to or take/a Try amy person ") a large quantity, to wit, two 
 drachms of a certain deadly poison called white arsenic, (" any poison 
 or other destructive or noxious thing,"") and thereby then did endanger 
 the life of the said J. N.; against the form [as ante, p. 347]. Add 
 a count stating that the defendant " did cause to be taken by J. N. a 
 large quantity," etc.; and if the kind of poison, etc., he doubtful, add 
 counts describing it in different ways, and also stating it to he '■^ & cer- 
 tain destructive thing," or " a certain noxious thing," " to the jurors 
 aforesaid unknown." See ante, p. 649. There should he also a set of 
 counts stating that the defendant thereby " inflicted upon J. N. grievous 
 bodily harm." 
 
 An indictment on s. 24, for administering, etc., poison, etc., with in- 
 tent to injure, aggrieve, or annoy the prosecutor, may be framed from 
 the precedent, ante, p. 648, varying the allegation of the intent. Or the 
 defendant may be convicted of and have judgment for the misdemeanor 
 mentioned in s. 24, ore an indictment under s. 23, if the prosecutor fail 
 in proving the felony. Id. s. 25. Where the defendant administered 
 cantharides to a woman, and the jury fov/nd that it was administered 
 with the intent to excite her sexual passion and desire, in order that the 
 defendant might obtain connexion mth her, this was held to be an ad- 
 ministering with intent to " injure, aggrieve and annoy" her. It. v. 
 WilMns, L. & a 89; 31 L. J. (M. C.) 72. 
 
 Felony: penal servitude for not more than ten and not less than five 
 [27 & 28 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment not ex- 
 ceeding two years, with or without hard lahow. — 24 <St 25 Vict. c. 100, 
 s. 23. As to requiring the offender to enter into recognizances and find ' 
 swetiesfor keeping the peace, Id. s. 71, ante, p. 619. If the defendant 
 be convicted of the misdemeanor only, the punishment is penal servi- 
 tude for five [27 dt 28 Vict. c. 47, s. 2, ante, p. 173] years, or impri- 
 sonment not exceeding two years, mth or without hard labour. Id, 
 s. 24. As to fining the offender and requiring him to enter into recog- 
 nizances amd find sureties for keeping the peace, and being of good be- 
 haviour. Id. s. 71, ante, p. 619. 
 
672 Assault, etc. 
 
 Evidence. 
 Prove the administering, etc., of the poison, etc., as directed ante, 
 p. 649. Prove also, that by means thereof the prosecutor's life was 
 endangered, or grievous bodily harm was done to him (see ante, p. 
 666). If the poison, etc., is administered merely with intent "to 
 injure, aggrieve or annoy," which in itself would merely amount to 
 a misdemeanor under s. 24, yet if it does in fact " inflict grievous 
 bodily harm," this amounts to a felony under s. 23. Tulley v. Corrie, 
 10 Cox, 640. In order to a conviction of the misdemeanor men- 
 tioned in s. 24, it must be proved that the defendant intended the ad- 
 ministration of the poison, etc., to "injure, aggrieve or annoy" the 
 prosecutor. See R. v. Willdns, supra. 
 
 INJURING OE ATTEMPTINa TO INJURE PERSONS BY EXPLOSIVE OE 
 CORROSIVE SUBSTANCES, ETC. 
 
 Statute. 
 
 24 & 25 Vict. c. 100, s. 28.] — Whosoever shall unlawfully and ma- 
 liciously, by the explosion of gunpowder or other explosive substance, 
 burn, maim, disfigure, disable, or do any grievous bodily hai-m to 
 any person, shall be guilty of felony, and being convicted thereof 
 shall be liable, at the discretion of the court, to be kept in penal 
 servitude for life or for any term not less than tln-ee years [nowjwe 
 years, 27 d: 28 Vict. c. 47, s, 2, ante, p. 173], or to be imprisoned 
 for any term not exceeding two years, with or without hard labour, 
 and with or without solitary confinement, and, if a male under the 
 age of sixteen years, with or without whipping. 
 
 Sect. 29.] — ^Whosoever shall unlawfully and maliciously cause any 
 gunpowder or other explosive substance to explode, or send or deliver 
 to or cause to be taken or received by any person any explosive 
 substance or any other dangerous or noxious thing, or put or lay at 
 any place, or oast or throw at or upon or otherwise apply to any 
 person, any corrosive fluid or any destructive or explosive substance, 
 with intent in any of the cases aforesaid to burn, maim, disfigure, or 
 disable any person, or to do some grievous bodily harm to any person, 
 shall, whether any bodily injury be effected or not, be guilty of 
 felony, and being convicted thereof shall be liable, at the discretion 
 of the court, to be kept in penal servitude for life or for any term 
 not less than three years [now five years, 27 <& 28 Viet. c. 47, s. 2, 
 ante, p. 173], or to be imprisoned for any term not exceeding two 
 years, with or without hard labom-, and with or without solitary con- 
 finement, and, if a male under the age of sixteen years, with or with- 
 out whipping. 
 
 Sect. 30.] — Whosoever shall unlawfully and maliciously place or 
 throw in, into, upon, against, or near any building, ship, or vessel 
 any gunpowder or other explosive substance, with intent to do any 
 bodily injury to any person, shall, whether or not any explosion take 
 place, and whether or not any bodily injury be effected, be guilty of 
 felony, and being convicted thereof shall be liable, at the discretion 
 of the court, to be kept in penal servitude for any term not ex- 
 
Assault, etc. 673 
 
 ceeding fourteen years and not less than three years [now flue years, 
 27 <& 28 Vict. c. 47, s. 2, ante, p. 173], or to be imprisoned for any 
 term not exceeding two years, with or without hard labour, and 
 with or without solitary confinement ; and, if a male under the age 
 of sixteen years, with or without whipping. 
 
 Indictment for Burning by Chmpowder. 
 
 Commencement as ante, p. 620] — feloniously, unlawfully, and ma- 
 liciously, by the explosion of a certain explosive substance, that is to 
 say, gunpowder, one J. N. did burn ; against the form [as ante, p. 
 347]. Add counts vai-ying the statement of the injury, according to the 
 circumstances. 
 
 Felony : penal servitude for life or for not less than five [27 c6 28 
 Vict. c. 47, s 2, ante, p. 173] years, or imprisonment, with or without 
 hard labour, and with or without solitary confinement {such confinement 
 not exceeding one calendar month at any one time, nor three calendar 
 months in any one year, 24 & 25 Vict. c. 100, s. 70, ante, p. 619), not 
 exceeding two years ; and<, if a male under sixteen years, with or with- 
 out whipping .—2^ <& 25 Vict. c. 100, s. 28. As to requiring the 
 offender to enter into recognizances and, find sureties for keeping the 
 peace, Id. s. 71, ante p. 619. An indictment under s. 30,yb?' maliciously 
 placing or throwing gunpowder into, <&c., any building, etc., with intent 
 to do bodily injury to any person, may easily be framed from the 
 precedent, airde, p. 522. 
 
 This offemce is not triable at quarter sessions. 5 (& 6 Vict. c. 38, s. 1 
 (ante, p. 104). 
 
 Evidence. 
 
 Prove that the defendant, by means of the explosion of gunpowder, 
 burnt the person of J. N., or maimed, disfigured, or disabled him, or 
 did him some grievous bodily harm. (See ante, p. 666.) Prove that 
 the act was done maliciously. (See ante, pp. 208, 508.) 
 
 Indictment for sending an Explosive Substance, with Intent, etc. 
 
 Commencement as ante, p. 620] — feloniously, unlawfully, and mali- 
 ciously did send ("send or deliver to, or cause to be taken or received 
 by, any person ") to one J. N. a certain explosive substance and dan- 
 gerous and noxious thinj,', to wit, two drachms of fulminating silver, 
 and two pounds weight, of gunpowder, with intent in so doing him the 
 said J. N. thereby then to bum (" bum, maim, disfigure, or disable, 
 or do some grievous bodily harm"); against the form [as ante, p. 347]. 
 Add counts varying the injury and intent. 
 
 Felony. 24 & 25 Vict. c. 100, s. 29. See the last precedent. 
 
 This offence is not triable at quarter sessions. 6 t6 6 Vict. c. 38, 
 «. 1 (ante, p. 104). 
 
 Evidence, 
 
 Prove the sending of the explosive substance, and the intent as 
 directed ante, p. 208. Under tlie former statute 7 W.ii&l Vict. c. 85, 
 s. 5, it was necessary to prove that the prosecutor was actually burnt, 
 etc. But by the present statute the offence is complete by the mali- 
 cious sending, etc., with intent to burn, etc., any person, whether or 
 not any bodily injury be effected. 
 
 w. a a 
 
674 Assault, etc. 
 
 Indictment for throwing Corrosive Fluid, with Intent, etc. 
 
 Commencement as ante, p. 620] — feloniously, unlawfully, and mali- 
 ciously did cast and throw upon (" cast or throw at or upon or other- 
 wise apply to any person") one J. N. a certain corrosive fluid, to wit, 
 one pint of oil of vitriol (" any corrosive fluid or any destructive 
 or explosive substance"), yvith intent in so doing him the said J. N. 
 thereby then to burn ; against the form [as ante, p. 347]. Add cownts 
 varying the injury and intent. 
 
 Felony. 24 & 25 Vict. c. 100, s. 29. See the lastprecedmt but one. 
 
 This ofence is not triable at any quarter sessions. 5 t& 6 Vict. c. 38, 
 «. 1 (ante, p. 104). 
 
 Evidence. 
 
 Prove that the defendant wilfully threw vitriol on (or at) the pro- 
 secutor; and prove the intent as directed ante, p. 208. The repealed 
 Stat. 6 G. 1, c. 2, «. 11, made it felony to assault any person in the 
 public streets, etc., with intent to cut, &c., and cutting the clothes of 
 such person: upon which it was holden, in a case where the defendant 
 intending to cut the person of the prosecutrix, struck her with a sharp 
 instrument, and, in doing so, cut her clothes, that the primary inten- 
 tion must be to cut the clothes, and that as the primary intention there 
 was the wounding of the person the statute did not apply. R. v. 
 Williams, 1 Leach, 533. So here, if it were clearly shown that the 
 intention was only to burn the clothes, it would seem not to he, within 
 the statute ; but unless the contrary be proved, the intention will be 
 evidenced by the act. 
 
 Boiling water was held to be " destructive matter," within the re- 
 pealed Stat. 7W.id>l Vict. c. 85, s. 6. S. v. Crawford, 1 Den. 100; 
 2C.d;K. 129. 
 
 SETTING SPRING-GUNS, ETC., WITH INTENT, ETC. 
 
 Statute. 
 
 24 c6 25 Vict. c. 100, s. 31.] — Whosoever shall set or place, or 
 cause to be set or placed, any spring-gun, man-trap, or other engine 
 calculated to destroy human life or inflict grievous bodily harm, with 
 the intent that the same or whereby the same may destroy or inflict 
 grievous bodily harm upon a trespasser or other person coming in 
 contact therewith shall be guilty of a misdemeanor, and being con- 
 victed thereof shall be liable, at the discretion of the court, to be 
 kept in penal servitude for the term of three years \now five years, 
 27 & 28 Vict. c. 47, s. 2, ante, p. 173], or to be imprisoned for any 
 term not exceeding two years, with or without hard labour; and 
 whosoever shall knowingly and wilfully permit any such spring-gun, 
 man-trap, or other engine which may have been set or placed in any 
 place then being in or afterwards coming into his possession or occu- 
 pation by some other person to continue so set or placed, shall he 
 deemed to have set and placed such gun, trap, or engine with such 
 intent as aforesaid : Provided that nothing in this section contained 
 shall extend to make it illegal to set or place any gin or trap such as 
 may have been or may be usually set or placed with the intent of 
 destroying vermin : Provided also, that nothing in this section shall 
 
Assault, etc. 675 
 
 be deemed to make it unlawful to set or place or cause to be set or 
 placed, or to be continued set or placed, from sunset to sunrise, any 
 spring-gun, man- trap, or other engine which shall be set or placed, or 
 caused or continued to be set or placed, in a dwelling-house for the 
 protection thereof. 
 
 Indictment. 
 
 Commencement as ante, p. 620]— unlawfully did set and place and 
 cause to be set and placed, in a certain garden situate at the parish of 
 ■B., in the county. of M., a certain spring-gun {"spring-gun, man-trap, 
 or other engine calculated to destroy human life or inflict grievous bodily 
 harm"), which was then loaded and charged with gunpowder and 
 divers leaden shot, with intent that the said spring-gun, so loaded and 
 charged as aforesaid, should inflict grievous bodily harm upon ("de- 
 stroy or inflict grievous bodily harm upon") any trespasser (" any 
 trespasser or other person") who might come in contact therewith ; 
 against the form [as ante, p. 347]. 
 
 Misdemeanor : penal servitude forfive^^l Sf 28 Vict. c. 47, ». 2, ante, 
 p. 173] years, or imprisonment, with or without hard labour, not ex- 
 ceeding two years. — 24 Sj- 25 Vict. c. 100, s. 31. As to fining the 
 offender and requiring him to enter into recognizances and find sure- 
 ties/or keeping the peace, and being of good behaviour, Id. s. 71, ante, 
 p. 619. 
 
 Evidence. 
 
 Prove that the defendant placed, or continued (see 24 & 25 Vict. c. 
 100, s. 31, supra) the spring-gun loaded in a place where persons 
 might come in contact with it ; and if any injury was in reality occa- 
 sioned, state it in the indictment and prove it as laid. 
 
 The intent can only be inferred from circumstances (see ante, p. 
 208) ; as the position of the gun, the declarations of the defendant, 
 and so forth. Any injury actually done will, of course, be some evi- 
 dence of the intent. 
 
 This statute applies only to instruments set with an intention to do 
 grievous bodily harm thereby to human beings, or whereby grievous 
 bodily harm is actually done to a human being ; not, therefore, to 
 dog-spears set by a man in his own land. Jordin v. Crump, 8 M.d 
 W. 782. 
 
 ATTEMPTS TO ENDANGER THE SAFETY OP RAILWAY PASSENGERS. 
 
 Statute. 
 
 24 cfe 25 Vict. c. 100, s. 32.]— Whosoever shall unlawfully and ma- 
 liciously put or throw upon or across any railway any wood, stone, or 
 other matter or thing, or shall unlawfully and maliciously take up, 
 remove, or displace any rail, sleeper, or other matter or thing belong- 
 ing to any railway, or shall unlawfully and maliciously turn, move, or 
 divert any points or other machinery belonging to any railway, or 
 shall unlawfully and maliciously make or show, hide or remove, any 
 signal or light upon or near to any railway, or shall unlawfully and 
 maliciously do or cause to be done any other matter or thing, with 
 intent, in any of the cases aforesaid, to endanger the safety of any 
 person travelling or being upon such railway, shall be guilty of felony, 
 
 gg2 
 
676 Assault, etc 
 
 and being convicted thereof shall be liable, at the discretion of the 
 court, to be kept in penal servitude for life or for any term not less 
 than three years [now Jive years, 27 <& 28 Vict. c. 47, s. 2, ante,p. 173], 
 or to be imprisoned for any term not exceeding two years, with or 
 without hard labour, and, if a male under the age of sixteen years, 
 with or without whipping. 
 
 Sect. 33.] — Whosoever shall unlawiully and maliciously throw, or 
 cause to fall or strike, at, against, into, or upon any engine, tender, 
 carriage, or truck used upon any railway, any wood, stone, or other 
 matter or thing, with intent to injure or endanger the safety of any 
 pei-son being in or upon such engine, tender, carriage, or truck, or in 
 or upon any other engine, tender, carriage, or truck of any train of 
 ■which such first-mentioned engine, tender, carriage, or truck shall 
 form part, shall be guilty of felony, and being convicted thereof shall 
 be liable, at the discretion of the court, to be kept in penal servitude 
 for life or for any term not less than three years [now five years, 27 <& 28 
 Vict. c. 47, s. 2, ante, p. 173], or to be imprisoned for any term not 
 exceeding two years, with or without hard labour. 
 
 Sect. 34.] — Whosoever, by any unlawful act, or by any wilful omis- 
 sion or neglect, shall endanger or cause to be endangered the safety 
 of any person conveyed or being in or upon a railway, or shall aid or 
 assist therein, shall be guilty of a misdemeanor, and being convicted 
 thereof shall be liable, at the discretion of the court, to be impri- 
 soned for any term not exceeding two years, -with or without hard 
 labour. 
 
 Indictment for endangering by Wilful Neglect the safety of Railway 
 Passengers. 
 
 Central Criminal Court, to wit : — The jurors for our lady the Queen 
 
 upon their oath present, that J. S., on the day of , in the 
 
 year of our Lord , unlawfully did, by a certain wilful omission 
 
 and neglect of him the said J. S., that is to say, by then wilfully 
 omitting and neglecting to turn certain points in and upon a cer- 
 tain railvfay called the railway, in the parish of B., in the 
 
 county of M., which points it was then the duty of him the said J. S. 
 to turn, endanger the safety of certain persons then conveyed and 
 being in and upon the said railway; against the form [as ante, 
 p. 347]. Indictments on ss. 32 and 33 may he framed from the prece- 
 dent, ante, p. 543, varying the statement of the intent. 
 
 Misdemeanor : imprisonment not exceeding two years, with or without 
 hard labour. — 24 <& 25 Vict. c. 100, s. 34. As to fining the offender 
 and requiring him to enter into recognizances and find sureties for 
 keeping the peace and being of good behaviour. Id. s. 71, ante, p. 619. 
 
 Ekidenee. 
 
 Prove that it was the duty of the defendant to turn the points ; that 
 he wilfully omitted and neglected to do so ; and that by reason of 
 such omission and neglect the safety of the passengers or other per- 
 sons conveyed or being on the railway (which words will include not 
 only passengers but officers and servants of the railway company) 
 was endangered. 
 
Assault, etc. 677 
 
 INJURIES ARISING FROM THE FURIOUS DRIVING OP CARRIAGES. 
 
 Statute. 
 
 24 d 25 Vict. c. 100, s. 35.]— Whosoever, having the charge of any 
 carriage or vehicle, shall, by wanton or furious driving or racing, or 
 other wilful misconduct, or by wilful neglect, do or cause to be done 
 any bodily harm to any person whatsoever, shall be guilty of a mis- 
 demeanor, and being convicted thereof shall be liable, at the discre- 
 tion of the court, to be imprisoned for any term not exceeding two 
 years, with or without hard labour. 
 
 Indictment. 
 
 Commencement as ante, p. 620] — being then a coachman, and then 
 having charge of a certain carriage and vehicle called an omnibus, 
 unlawfully did, by the wanton and furious driving of the said car- 
 riage and vehicle by him the said J. S., cause certain bodily harm to 
 be done to one J. N. ; against the form [as ante, p. 347]. 
 
 Misdemeanor: imprisonment, rcith or without hard labour, not ex- 
 ceeding two years. — 24 & 26 Vict. c. 100, s. 35. As to fining the 
 offender and requiring him to enter into recognizances amdfind sureties 
 for keeping the peace and being of good behaviour, Id. s. 71, ante, 
 p. 619. 
 
 Evidence. 
 
 Prove that the defendant was coachman of the carriage, as stated 
 in the indictment ; prove the furious driving, and that by means of 
 it a personal injury was done to J. N. 
 
 The former statute on this subject, 1 G. 4, c. 4, applied only to 
 the furious driving of a stage coach or public carriage, and more- 
 over did not extend to " hackney coaches drawn by two horses only, 
 and not plying for hire as stage coaches ;" but the present act in- 
 cludes all carriages and vehicles of every description, both public and 
 private. 
 
 OBSTRUCTING, ETC., CLERGYMEN, ETC., IN DISCHARGE OP THEIR 
 DUTIES. 
 
 Statute. 
 
 24 S 25 Vict. c. 100, «. 36.] — Whosoever shall, by threats or force, 
 obstruct or prevent, or endeavour to obstruct or prevent, any clergy- 
 man or other minister in or from celebrating divine service or other- 
 wise officiating in any church, chapel, meeting-house, or other place 
 of divine worship, or in or from the performance of his duty in the 
 lawful burial of the dead in any churchyard or other burial place, or 
 shall strike or offer any violence to, or shall, upon any civil process, 
 or under the pretence of executing any civil process, arrest any 
 clergyman or other minister who is engaged in, or to the knowledge 
 of the offender is about to engage in, any of the rites or duties in 
 this section aforesaid, or who to the knowledge of the offender 
 shall be going to perform the same or returning from the perform- 
 ance thereof, shall be guilty of a misdemeanor, and being convicted 
 
■Tl 
 
 678 Assault, etc. 
 
 thereof shall be liable, at the discretion of the court, to be impri- 
 soned for any term not exceeding two years, with or without hard 
 labour. 
 
 Indictment for Obstructing a Clergyman in the discharge of his Duty. 
 
 Commencement as ante, p. 620] — unlawfully did by force (" threats 
 or force") obstruct and prevent one J. N., a clergyman, then being 
 the vicar of the parish of B., in the county of M., from celebrating 
 divine service in the parish church of the said parish [or " in the 
 performance of his duty in the lawful burial of the dead in the 
 churchyard of the parish church of the said parish"] ; against the 
 form [as ante, p. 347]. 
 
 Misdemeanor: imprisonment, viith or without hard Idbowr, not ex- 
 ceeding two years. — 24 & 25 Vict. c. 100, s. 36. As to fining the 
 offender a/nd requiring him to enter into recognizances and find sureties 
 for keeping the peace and being of good behaviour. Id. s. 71, ante, 
 p. 619. 
 
 Evidence. 
 
 Prove that J. N. is a clergyman and vicar of the parish of B., 
 as stated in the indictment ;, that the defendant by force obstructed 
 and prevented him from celebrating divine service in the parish 
 church, etc., or assisted in doing so. 
 
 The repealed stat. 9 G. 4, c. 31, s. 23, applied' only to clergy- 
 men of the established chui-ch; but the present act extends also 
 to "other ministers," and to any "chapel, meeting-house, or other 
 place of divine worship," 
 
 Indictment for Arresting a Clergyman engaged in the Performance of 
 Divine Service, etc. 
 
 Commencement as ante, p. 620] — unlawfully did arrest one J. N., 
 a clergyman, upon certain civil process, whilst he the said J. N., as 
 such clergyman as aforesaid, was going to perform divine service, 
 he the said J. S. then well knowing that the said J. N. was a clergy- 
 man, and was so going to perform- divine service as aforesaid ; against 
 the form [as ante, p. 347]. 
 
 Misdemeanor: see the last precedent. 24 c6 25 Vict. c. 100, s. 36. 
 
 Evidence. 
 
 Prove that J. N. is a clergyman, and that he was arrested upon 
 civil process by the defendant, as stated in the indictment. If the 
 charge be for arresting J. N. while going to perform, or returning 
 from the perfonnance of, divine service, prove that the defendant 
 knew that J. N. was so going or returning.. 
 
 ASSAULTS ON OFFICERS, ETC., SAVING WRECK. 
 
 Statute.. 
 
 24 c6 25 Vict. c. 100, s. 37.] — Whosoever shall assault and strike or 
 wound any magistrate, officer, or other person whatsoever lawfully 
 
Assault^ et'c. 679 
 
 AuffiorizeJ, in or on account of the exercise of his duty in or concerning 
 the preservation of any vessel in distress, or of any vessel, goods, or 
 effects wrecked, stranded, or cast on shore, or lying under water, 
 shall be guilty of a misdemeanor, and being convicted thereof shall 
 be liable, at the discretion of the court, to be kept in penal servitude 
 for any terra not exceeding seven years, and not less than three 
 years [now Jive years, 27 d 28 Vict. a. 47, s. 2, cmte, p. 173], or to be 
 imprisoned for any term not exceeding two years, with or without 
 hai'd labour. 
 
 Indictment for Assaulting a Magistrate, etc., on account of the 
 Exercise of his Duty in preserving Wreck. 
 
 Sussex, to wit : — The jurors for our lady the Queen upon their oath 
 present, that, before and at the time of the committing of the offence 
 hereinafter mentioned, to wit, on the first day of June, in the year 
 
 of our Lord , one J. N., then being a magistrate (" magistrate, 
 
 officer, or other person whatsoever lawfully authorized"), was engaged 
 in the exercise of his duty as such magistrate, in and concerning the 
 preservation of a certain vessel (" of any vessel in distress, or of any 
 vessel, goods, or effects wrecked, stranded, or cast on shore, or lying 
 under water"'), then wrecked, stranded, and cast on shore, the said 
 J. N. being then lawfully authorized thereunto : and that J. S., well 
 knowing the premises, on the day and year aforesaid, in and upon the 
 said J. N. unlawfully did make an assault, and him the said J. N. 
 then unlawfully did strike and wound (" strike or wound"), in and on 
 account of the exercise of the said duty of him the said J. N. in 
 and concerning the preservation of the said vessel so wrecked, 
 stranded, and cast on shore as aforesaid ; against the form [as ante, 
 i). 347]. 
 
 Misdemeanor: penal servitude for not more than seven nor less than 
 jive [27 tSk 28 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment, 
 with or without hard labour, not exceeding two years.— 2i & 25 Vict. 
 c. 100, s. 37. As to fining the offender amd requiring him to enter into 
 recognizances and find sureties for keeping the peace and being of good 
 behaviour, Id. s. 71, ante, p. 619. 
 
 Eeid&nce. 
 
 Prove that J. N. was a magistrate, etc., as stated in the indictment 
 (see ante, p. 238) ; that a vessel was wrecked, etc. ; that J. N. was 
 engaged endeavouring to preserve the vessel : that J. S. struck [and 
 wounded] him as stated : and that he did so on account of his doing 
 his duty in the preservation of the vessel. This may be proved by 
 the declarations or acts of the defendant, or by circumstances from 
 which his motive may be inferred. 
 
 IMPBMNO PERSONS ENDEAVOURING TO ESCAPE FROM WRECKS. 
 
 24 <& 25 Vict. c. 100, s. 17.] — Whosoever shall unlawfully and ma- 
 liciously prevent or impede any person, being on board of or having 
 quitted any ship or vessel which shall be in distress, or wrecked, 
 
680 Assault, etc. 
 
 stranded, or cast on shore, in his endeavour to save his life, or shall 
 unlawfully and maliciously prevent or impede any person in his en- 
 deavour to save the life of any such person as in this section first 
 aforesaid, shall be guilty of felony, and being convicted thereof shall 
 be liable, at the discretion of the court, to be kept in penal servi- 
 tude for life or for any term not less than three years Incyivfiue yean, 
 27 <& 28 Vict. c. 47, s. 2, ante, p. 173], or to be imprisoned for any 
 term not exceeding two years, with or without hard labour, and 
 with or without solitary confinement. 
 
 Indictment. 
 
 Sussex, to wit : — The jurors for our lady the Queen upon their oath 
 present, that before and at the time of the committing of the felony 
 hereinafter mentioned, to wit, on the first day of June, in the year of 
 
 our Lord , a certain vessel (" ship or vessel") was stranded and 
 
 cast on shore (" in distress, or wrecked, stranded, or cast on shore") ; 
 and that J. S., on the day and year aforesaid, one J. N., theri en- 
 deavouring to save his life from the said vessel so stranded and cast 
 on shore as aforesaid, feloniously, unlawfully and maliciously did 
 prevent and impede {'^prevent or impede") ; against the form [aiante, 
 p. 347]. 
 
 Felony : penal servitude for life or for not less than fve [27 <£ 28 
 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment not exceeding two 
 years, with or without hard labour, and with or without solitary con- 
 finement (such confinement not exceeding one month at any one time, nor 
 three months in any one year, 24 & 25 Vict. c. 100, s. 70, ante, p. 619). 
 — 24 & 25 Vict. c. 100, s. 17. As to requiring the offender to enter 
 into recognisances and, find sureties for keeping the peace. Id. s. 71, 
 ante, p. 619. 
 
 This offence is not triable at quarter sessions. 6 <6 6 Vict. c. 38, s. 1 
 (ante, p. 104). 
 
 Evidence. 
 
 Prove that the vessel was stranded and cast on shore, as stated in 
 the indictment ; prove that J. N. was endeavouring to save his life 
 after the ship was stranded ; it is immaterial whether he was on board 
 or had quitted the vessel. 24 <& 25 Vict. c. 100, s. 17. Prove that 
 the defendant impeded or prevented him from so doing, and that the 
 act was done maliciously, that is, wilfuUy (see ante, p. 608). 
 
 FORCING SEAMEN ON SHORE. 
 
 Statute. 
 
 17 & 18 Vict. c. 104, s. 206.]— If the master or any other nerson 
 belonging to any British ship wrongfully forces on shore and^leaves 
 behind, or otherwise wilfully and wrongfully leaves behind, in any 
 place, on shore or at sea, in or out of her Majesty's dominions, any 
 seaman or apprentice belonging to such ship before the completion 
 of the voyage for which such person was engaged, or the return of 
 
Assault, etc. 681 
 
 the ship to the United Kingdom, he shall for each such offence be 
 deemed guilty of a misdemeanor. 
 
 Sect. 207.]— If the master of any British ship does any of the 
 following things: (that is to say) — 1. Discharges any seaman or 
 apprentice in any place situate in any British possession abroad (ex- 
 cept the possession in which he was shipped), without previously 
 obtaining the sanction in writing indorsed on the agreement of some 
 public shipping master or other officer duly appointed by the local 
 government in that behalf, or (in the absence of any such func- 
 tionary) of the chief officer of customs resident at or near the place 
 where the discharge takes place. 2. Discharges any seaman or ap- 
 prentice at any place out of her Majesty's dominions without pre- 
 viously obtaining the sanction so indorsed as aforesaid of the British 
 consular officer there, or (in his absence) of two respectable mer- 
 chants resident there. 3. Leaves behind any seaman or apprentice 
 at any place situate in any British possession abroad on any ground 
 whatever, without previously obtaining a certificate in writing so 
 indorsed as aforesaid from such officer or person as aforesaid, stating 
 the fact and the cause thereof, whether such cause be tuifitness or 
 inability to proceed to sea, or desertion or disappearance. 4. Leaves 
 behind any seaman or apprentice at any place out of her Majesty's 
 dominions, on shore or at sea, on any ground whatever, without pre- 
 viously obtaining the certificate indorsed in manner and to the effect 
 last aforesaid of the British consular officer there, or (in his absence) 
 of two respectable merchants, if there is any such at or near the 
 place where the ship then is : he shall for each such default be 
 deemed guilty of a misdemeanor : and the said functionaries shall, 
 and the said merchants may, examine into the grounds of such pro- 
 posed discharge, or into the allegation of such unfitness, inability, 
 desertion, or disappearance as aforesaid, in a summary way ; and 
 may for that purpose, if they think fit so to do, administer oaths, 
 and may either grant or refuse such sanction or certificate, as appears 
 ' to them to be just. 
 
 Sect. 208 — Proof of Certificate to he on Defendant.']— TJTpon the 
 trial of any information, indictment, or other proceeding against any 
 person for discharging or leaving behind any seaman or apprentice, 
 contrary to the provisions of this act, it shall be upon such person, 
 either to produce the sanction or certificate hereby required, or to 
 prove that he had obtained the same previously to having discharged 
 or left behind such seaman or apprentice, or that it was impracticable 
 for him to obtain such sanction or certificate. 
 
 Sect. 618 — Sard Laiour — Cbsfe.] — In all places within her Ma- 
 jesty's dominions, except Scotland, the offences hereinafter men- 
 tioned shall be punished and penalties recovered in manner follow- 
 ing : (that is to say,) 1. Every offence by this act declared to be a 
 misdemeanor shall be punishable by fine or imprisonment, with or 
 without hard labour; and the court before which such offence is 
 tried may in England make the same allowances and order payment 
 of the same costs and expenses, as if such misdemeanor had been 
 enumerated in the act passed in the seventh year of his late Majesty 
 King (ireorge the Fourth, chapter sixty-four, or any other act that 
 may be passed for the like purpose ; and may in any other part of 
 her Majesty's dominions make such allowances and order payment 
 G 6 5 
 
682 Assault, etc. 
 
 of such costs and expenses (if any) as are payable or allowable 
 upon the trial of any misdemeanor under any existing act or ordi- 
 nance, or as may be payable or allowable under any act or law for 
 the time being in force therein. 2. Every offence declared by this 
 act to be a misdemeanor shall also be deemed to be an offence hereby 
 made punishable by imprisonment for any period not exceeding six 
 months, with or without hard labour, or by a penally not exceeding 
 one hundred pounds, and may be prosecuted accordingly in a sum- 
 mary manner instead of being prosecuted as a misdemeanor. 3. 
 Every offence hereby made punishable by imprisonment for any 
 period not exceeding six months, with or without hard labour, or by 
 any penalty not exceeding one hundred pounds, shajl in England and 
 Ireland be prosecuted summarily before any two or more justices, as 
 to England in the manner directed by the act of the eleventh and 
 twelfth years of the reign of her Majesty Queen Victoria, chapter 
 forty-three, and as to Ireland in the manner directed by the act of 
 the fourteenth and fifteenth years of the reign of her Majesty Queen 
 Victoria, chapter ninety-three, or in such other manner as may be 
 directed by any act or acts that may be passed for like purposes : 
 And all provisions contained in the said acts shall be applicable 
 to such prosecutions in the same manner as if the offences in respect 
 of which the same are instituted, were hereby stated to be offences 
 in respect of which two or more justices have power to convict 
 summarily or to make a summary order. 4. In all cases of summary 
 convictions in England, where the sum adjudged to be paid exceeds 
 five pounds, or the period of imprisonment adjudged exceeds one 
 month, any person who thinks himself aggrieved by such conviction 
 may appeal to the next court of general or quarter sessions which is 
 holden not less than twelve days after the day of such conviction 
 for the county, city, borough, liberty, riding, division or place wherein 
 the case has been tried ; provided that such person shall give to 
 the complainant a notice in writing of such appeal, and of the cause 
 and matter thereof, within three days after such conviction, and seven 
 clear days at the least before such sessions, and shall also either 
 remain in custody until the sessions, or enter into a recognizance, 
 with two sufficient sureties, before a justice of the peace, conditioned 
 personally to appear at the said sessions, and to try such appeal, and 
 to abide the judgment of the court thereupon, and to pay such costs 
 as shall be by the court awarded ; and upon such notice being given 
 and such recognizance being entered into, the justice before whom 
 the same shall be entered into shall liberate such person, if in cus- 
 tody ; and the court at such sessions shall hear and determine the 
 matter of the appeal, and shall make such order therein, with or 
 without costs to either party, as to the court shall seem meet ; and in 
 case of the dismissal of the appeal, or the affirmance of the convic- 
 tion, shall order and adjudge the offender to be punished according 
 to the conviction, and to pay such costs as may be awarded, and 
 shall, if necessary, issue process for enforcing such judgment. 5. All 
 offences under this act shall in any British possession be punishable 
 in any court or by any justice of the peace or magistrate in which or 
 by whom offences of a like character are ordinarily punishable, or in 
 such other manner, or by such other courts, justices, or magistrates, 
 as may from time to time be determined by any act or ordinance 
 duly made in such possession, in such manner as acts and ordinances 
 in such possession are required to be made in order to have the 
 force of law. 
 
Assault, etc. 883 
 
 Sect. 520 — Venue.] — For the purpose of giving jurisdiction under 
 this act, every offence shall be deemed to have been committed, and 
 every cause of complaint to have arisen, either in the place in which 
 the same actually was committed or arose, or in any place in which 
 the offender or person complained against may be. 
 
 18 (6 19 Vict. c. 91, s. 21— Verne.] -Ante, p. 30. 
 
 Indictment for forcing on Shore cmd leaving behind a Seaman. 
 
 Middlesex, to wit : — The jurors for our Lady the Queen upon their 
 oath present, that J. S., on the first day of June, in the year of our 
 
 Lord , then being master of a certain British ship called the 
 
 " Battler," unlawfully, wilfully and wrongfully did force on shore and 
 leave behind at a certain place out of her Majesty's dominions, that 
 is to say, at New York, in the United States of America, one J. N., 
 the said J. N. then being a seaman belonging to the said ship, and 
 the voyage of the said ship for which he the said J. N. had been 
 engaged not being then completed ; against the form of the statute 
 in such case made and provided, and against the peace of our lady 
 the Queen, her crown and dignity. And the jurors aforesaid, upon 
 their oath aforesaid, do further present, that the said J. S. now is at 
 
 the parish of , in the city of Westminster, in the county of 
 
 Middlesex. The allegation that it is a British ship is a material alle- 
 gation, and must be proved as laid. See B. v. Dunnett, 1 C.SK. 425. 
 
 Misdemeanor: fine, or imprisonment, with or without hard labour, 
 or both. 17 <& 18 Vict. c. 104, ss. 206, 518. For the examination of 
 mtnesses abroad, see the llQth section of the statute, ante, p. 256. 
 
 Efoidence. 
 
 Prove that the defendant was or aeted as master of the vessel, and 
 that it was, at the time of the commission of the offence, a British 
 ship ; see R. v. Dwinett, 1 C. & E. 425 ; 17 cE 18 Vict. c. 104, s. 18 ; 
 prove that J. N. was then one of the crew (it is immaterial whether 
 he was one of the original crew of the ship or not); that the voyage 
 for which he was engaged was not then completed; and that the 
 defendant forced him on shore, and left him behind at the place 
 mentioned in the indictment. 
 
 If the defendant be proved to have wilfully left the prosecutor 
 behind, the only defence he can set up is the production of a certifi- 
 cate obtained under s. 208, or the impossibility of obtaining such 
 certificate under the circumstances therein mentioned. R. v. Dun- 
 nett, swpra. 
 
 ASSAULTS TO COMMIT FELONY, ON PEACE OFPICEES, ETC. 
 
 24 & 25 Vict. c. 100, s. 38.] — Whosoever shall assault any person 
 with intent to commit felony, or shall assault, resist, or wilfully 
 obstruct any peace officer in the due execution of his duty, or any 
 person acting in aid of such officer, or shall assault any person with 
 intent to resist or prevent the lawful apprehension or detainer of 
 himself or of any other person for any offence, shall be guilty of a 
 
684 Assault, etc. 
 
 misdemeanor, and being convicted thereof shall be liable, at the 
 discretion of the court, to be imprisoned for any term not exceeding 
 two years, with or without hard labour. 
 
 Indictment. 
 
 Commencement as ante, p. 620] — in and upon one J. N. unlawfully 
 did make an assault, and him the said J. N. did beat, wound, and ill- 
 treat, with intent \_here state the felony intended, thus : him the said 
 J. N. feloniously, wilfully, and of his malice aforethought, to kill and 
 murder], and other wrongs to the said J. N. then did, to the great 
 damage of the said J. N. ; against the form [as ante, p. 347]. Add 
 a count for a common assault; see ante, p. 658. 
 
 Misdemeanor: imprisonment, with or without hard labour, not ex- 
 ceeding two years. 24 <& 25 Vict. c. 100, s. 38. As to fining the 
 offender and requiring him to enter into recognizances and fimd mrelies 
 for keying the peace and being of good behaviour, Id. s. 71, ante, 
 p. 619. 
 
 Evidence. 
 
 ■ Every attempt to commit a felony against the person of an indi- 
 vidual without his consent involves an assault. Prove an attempt to 
 commit such a felony, and prove it to have been done under such 
 circumstances that, had the attempt succeeded, the defendant might 
 have been convicted of the felony. If you fail in proving the intent, 
 but prove the assault, the defendant may be convicted of the common 
 assault. 
 
 Indictment for Assaulting a Peace Officer in the Execution of his 
 Duty. 
 
 Commencement as ante, p. 620] — in and upon one J. N., then being 
 a peace officer, to wit, a constable ("any peace officer in the execution 
 of his duty, or any person acting in aid of such officer"), and then being 
 in the due execution of his duty as such constable, did make an 
 assault, and hira the said J. N., so being in the execution of his duty 
 as aforesaid, did then beat, wound, and ill-treat, and other wrongs 
 to the 'said J. N. then did, to the great damage of the said J. N. ; 
 against the form [as ante,p. 347] . Add a count for a common assault; 
 see ante, p. 658. 
 
 Misdemeanor : 24 & 25 Vict. c. 100, s. 38. See the last precedent. 
 As to assaulting special constables, see 1 & 2 W. 4, c. 41, s. 11, and 
 R. V. Porter, 9 C. <& P. 778. 
 
 Evidence. 
 
 Prove that J. N. was a peace ofBcer, etc., as stated in the indict- 
 ment, by showing that he had acted as such (see ante, p. 238) ; or, if 
 the indictment be for assaulting J. N., acting in aid of an officer, 
 prove that the officer acted as such, and that J. N. was acting in his 
 aid. Prove that J. N. was in the due execution of his duty (see ante, 
 p. 640), and prove the assault as directed ante, p. 658 et seq. The 
 fact that the defendant did not know that the person assaulted was a 
 peace officer, or that he was acting in the execution of his duty, fur- 
 nishes no defence. R. v. Forbes, 10 Cox, 362. 
 
 As to the appointment and duties of parish constables, see now 
 the stat. 5 (£ 6 Vict. c. 109. See also, as to metropolitan police con- 
 
Assault, etc. 685 
 
 s, 10 Gr. 4, c. 44; 2 c6 3 Vict. cc. 47, 71 ; as to the police in 
 counties and boroughs generally, 2 (6 3 Viet. c. 93; 3 <fe 4 Vict. c. 88; 
 19 <& 20 Fici. c. 69. A justice's warrant of commitment directed 
 " To the constable of G-.," a parish in tlie county of L., must be read 
 as directed to the parish constable of G., there being such an officer, 
 who must execute it, and its execution by a county policeman is 
 illegal. Therefore a conviction for wounding a county policeman in 
 the execution of such a warrant, with intent to resist the prisoner's 
 lawl'ul apprehension thereunder, was quashed. B. v. Saunders, L. R., 
 1 a a R. 75; 36 L. J. (M. C.) 87. _ 
 
 Refusing to aid and assist a constable in the execution of his duty, 
 in order to preserve the peace, is an indictable misdemeanor at com- 
 mon law. In order to support such indictment, it must be proved 
 that the constable saw a breach of the peace committed ; that there 
 was a reasonable necessity for calling upon the defendant for his 
 assistance ; and that when duly called on to do so, the defendant, 
 without any physical impossibility or lawful excuse, refused to do so. 
 And it is no defence that the single aid of the defendant could have 
 been of no avail. R. v. Brcfwn, C. & Mar. 314. An indictment for 
 refiising to assist a constable in the execution of his duty, and pre- 
 vent an assault made upon hira by persons in his custody on a charge 
 of felony, with intent to resist their lawful apprehension, is suffi- 
 cient without stating how the apprehension became lawful ; and if 
 it state a refusal to assist, without the further allegation that the de- 
 fendant did not, in fact, assist. R. v. Sherloch, L. R., 1 C C R. 20; 
 35 X. J. {M. C.) 92. 
 
 Indictment for an Assault to prevent Arrest. 
 
 Commencement as ante, p. 620] — in and upon one J. N. did make 
 an assault, and him the said J. N. did then beat, wound, and ill-treat 
 with intent in so doing to resist and prevent (" resist orpreoent ") the 
 lawful apprehension (" apprehension or detainer") of him the said J. S. 
 ("o/ himself or of any other person") for a certain offence, that is to 
 say, for [state the offence generally'] ; against the form [as ante,p. 347]. 
 Add a count for a common assault, as ante, p. ?ibl. 
 
 Misdemeanor. 24 & 25 Vict. c. 100, s. 38. See the last precedent 
 hit one. 
 
 Evidence. 
 
 Prove the assault as directed ante, p. 658 et seq., and the intent, as 
 directed ante, p. 208. It must be stated and proved that the appre- 
 hension was lawful. (See ante, p. 640.) If you fail in proving the 
 intent, the defendant may be convicted of the common assault. 
 
 ASSAULTS ARISING PROM UNLAWFUL COMBINATIONS. 
 
 Statute. 
 24 <& 25 Vict. c. 100, s. 41.] — Whosoever, in pursuance of any un- 
 lawful combination or conspiracy to raise the rate of wages, or of 
 any unlawful combination or conspiracy respecting any trade, busi- 
 
686 Assault, etc. 
 
 ness, or manufacture, or respecting any person concerned or employed 
 therein, shall unlawfully assault any person, shall be guilty of a mis- 
 demeanor, and being convicted thereof shall be liable, at the dis- 
 cretion of the court, to be imprisoned for any term not exceeding 
 two years, with or without hard labour. 
 
 Indictment for an Assault in pursuance of a Conspiracy to raise 
 Wages. 
 
 Lancashire, to wit :— The jurors for our lady the Queen upon then- 
 oath present, that J. S., J. W. and B. W., on the first day of August, 
 in the year of our Lord , did amongst themselves conspire, com- 
 bine, confederate, and agree together to raise the rate of wages then 
 usually paid to workmen and labourers in the art, mystery, and busi- 
 ness of cotton-spinners ; and that the said J. S., J. W. and E. W., in 
 pursuance of the said conspiracy, on the day and year aforesaid, in 
 and upon one J. N. unlawfully did make an assault, and him the 
 said J. N. did then beat, wound, and ill-treat, and other wrongs to 
 the said J. N. did, to the great damage of the said J. N.; against the 
 form [as ante, p. 347]. Add a count stating that the defendant as- 
 saulted J. N., " in pursuance of a certain conspiracy before then 
 entered into by the said J. S., J. W. and E. W., to raise the rate 
 of wages of workmen and labourers in the art, mystery, and busi- 
 ness of cotton-spinners." Add a count for a common assault, as ante, 
 p. 657. 
 
 Misdemeanor: imprisonment, with or without hard lahou/r, not ex- 
 ceeding two years. 24 S 26 Vict. c. 100, ». 41. As to fining the 
 offender and requiring him to enter into recognizances and find sureties 
 for Tceeping the peace and being of good behaviour, Id. s. 71, ante, 
 p. 619. 
 
 Evidence. 
 Prove the conspiracy as stated in the indictment ; see post, Boole 
 II., Part III.; and the assault as directed ante, p. 658 et seq. 
 Prove also that the assault was in pursuance of this conspiracy. 
 If this proof fails, the defendants may be convicted of the common 
 assault. 
 
 ASSAULTING GAMEKEEPERS. 
 
 Statutes. 
 
 9 0. 4, c. 69, s. 2.] — Where any person shall be found upon any land 
 committing any such offence as is hereinbefore mentioned («. 1, post, 
 Chap, v., Sect. 6), it shall be lawful for the owner or occupier of such 
 land, or for any person having a right or reputed right of free warren 
 or free chase thereon, or for the lord of the manor or reputed manor 
 wherein such land may be situate, and also for any gamekeeper or 
 servant of any of the persons herein mentioned, or any person assist- 
 ing such gamekeeper or servant, to seize and apprehend such offender 
 upon such land, or, in case of pursuit being made, in any other place 
 to which he may have escaped therefrom, and to deliver him, as soon 
 as may be, into the custody of a peace officer, in order to his being 
 conveyed Isefore two justices of the peace ; and in case such offender 
 
Assault, etc. 687 
 
 shall assault or offer any violence with any gun, cross-bow, fire-arms, 
 bludgeon, stick, club, or any other offensive weapon whatsoever, to- 
 wards any person hereby authorized to seize and apprehend him, he 
 shall, whether it be his first, second, or any other offence, be guilty 
 of a misdemeanor, and being convicted thereof shall be liable, at the 
 discretion of the court, to be transported beyond seas for seven 
 years, or to be imprisoned and kept to hard labour in the common 
 gaol or house of correction for any term not exceeding two years ; 
 and in Scotland, whenever any person shall so offend, he shall be 
 liable to be punished in like manner. 
 
 7 c6 8 Vict. c. 29, «. 1.]— Posi, Chap. V., Sect. 6. 
 
 20 <& 21 Vict. c. a.}— Ante, p. 172. 
 
 27 d> 28 Vict. c. 47, s. 2.']~Ante,p. 173. 
 
 Indictment. 
 
 Essex, to wit: — The jurors for om- lady the Queen upon their oath 
 present, that at the time of the committing of the assault hereinafter 
 mentioned, to wit, on the first day of November, in the year of our 
 
 Lord , in the night-time, to wit, about the hour of ten in the 
 
 night of the same day, J. S. was unlawfully in certain land (" ani/ 
 land") [in the occupation] of one J. W., situate at the parish of 
 
 ■- , in the county of Essex, armed with a gun for the purpose of 
 
 then, and by night as aforesaid, unlawfully taking and destroying 
 game; and that he the said J. S. was then, so being in the said land 
 by night as aforesaid, armed with the said gun for the purpose afore- 
 said, by one J. N. (" the owner or occupier of such land, or any person 
 having a right or reputed right of free warren or free chase thereon, or 
 the lord of the manor or reputed manor wherein such land may be 
 situate, or any gamekeeper or sewani of the persons herein mentioned, 
 or any person assisting such gamekeeper or servant") the servant of the 
 said J. W., the said J. N. then having lawful authority to seize and 
 apprehend the said J. S., found ; and that* he the said J. N. being 
 then about to seize and apprehend the said J. S. for the offence 
 aforesaid, the said J. N. then having lawful authority so to do, he 
 the said J. S., with the gun aforesaid Q^any gun, cross-bow, fire-arms, 
 bludgeon, stick, club, or other offensive weapon whatsoever") which he 
 the said J. S. in both his hands then held, did then unlawfully assault 
 and beat the said J. N. (" assault, or offer violence towards"); against 
 the form [as ante, p. 347]. 
 
 " If the defendant escaped from the land and was pursued, here add, 
 " the said J. S. theu escaped from the said land into a certain other 
 close there situate, and the said J. N. did thereupon then pursue 
 the said J. S. into the said last-mentioned close, for the purpose of 
 seizing and apprehending him the said J. S. as aforesaid, and that he 
 the said J. N. being then about to seize and apprehend the said J. S. 
 for the offence aforesaid," etc. etc. This count may be joined with 
 one on the Qth section, post. R. v. Finacane, h C. & P. 551. An in- 
 dictment, which stated only that the defendant " was then and there, in 
 the said land, by night as aforesaid, etc., found," was held bad, as not 
 sufficiently showing that he was found committing the offence charged 
 in the previous part of the indictment. R. v. Curnock, 9 C. <& P. 730. 
 If the indictment contains, (1), a count in the form above given; and, 
 
688 Assault, etc. 
 
 (2), a count charging a common assault, and the prosecution at the trial 
 elect to abandon the count charging the common assault, the defendant 
 cannot after such abandonment be convicted of a common assault upon 
 the first count. R. v. Day, 11 Cox, 605 (G C. R.). 
 
 Misdemeanor : penal servitude for not more than seven rmr less than 
 five years, or imprisonment and hard labour for. not more than two 
 years. 9 G. 4, c. 69, ». 2 ; 20 cfe 21 Vict. c. 3 (ante, p. 172); 27 (& 28 
 Vict. c. 47, s. 2 (ante, p. 173). 
 
 Evidence. 
 
 Prove that the defendant entered certain land in the parish de- 
 scribed, belonging to or in the occupation of J. W. It is not neces- 
 sary to state the name of the close; but if it be stated, it must be 
 proved. R. v. Owen, 1 Mood. C. C. 118. So, a variance in the parish 
 or other local description will be fatal, unless amended. Prove that 
 the defendant entered tlie land in the night-time, that is, some time 
 between the expiration of the first hour after sunset, and the begin- 
 ning of the last hour before sunrise. 9 G. 4, c. 69, s. 12, post; see B. 
 V. Tomlinson, 1 C. Jk P. 183. It is not necessaiy to state the hour 
 (ante, p. 48) ; nor, if stated, need it be proved, provided the hour 
 proved be within the period above mentioned. Prove that the de- 
 fendant was armed with a gun, etc., and that he was on the land for 
 the purpose of destroying game there. See R. v. Barham, 1 Mood. 
 C. C. 151: R. V. Davis, % C.dc P. 759. Prove also that the defend- 
 ant was found on the land in the commission of the offence. The 
 words of the statute are ^^ found upon any land." Upon the repealed 
 stat. 57 G. 3, c. 90, s. 3, the words of which were " enter into or be 
 found in any forest," etc., where the defendant was not found in the 
 close, but was seen in an adjoining close, and, shortly before he was 
 seen, shots were heard in the close, and the jury found that he had 
 been firing in the close, it being reserved for tlie judges whether it 
 was necessary to prove that the defendant was seen in the close 
 where the indictment stated him to have been found; they held that, 
 as the jury were satisfied that the defendant had been in the close 
 armed, it was sufficient. R. v. Worke, 1 Mood. C. C. 165. (See 
 post. Part II., Chap. V., Sect. 6.) Prove that J. N. was servant to 
 J. W., the owner or occupier of the land (or, if the offence was 
 committed on any public road, highway, or path, or the sides thereof, 
 or at any gate, outlet, or opening from any land to such road, etc., 
 the owner or occupier of land adjoining either side of that part of 
 the road, etc., where the offender was, 7 c§ 8 Vict. c. 29, s. ly, and 
 prove the assault as directed ante, p. 658 et seq. If J. N. escaped, 
 and was pursued, it must be stated; and if stated, it must be proved. 
 Lastly, it must be proved that the offence was committed within 
 twelve calendar inonths next before the prosecution. 9 G. 4, c. 69, 
 s. 4, post. 
 
 A gamekeeper, or other person lawfully authorized, may appre- 
 hend poachers without giving notice of his purpose. R. v. Payne, 1 
 Mood. C. C. 378; and without a written authority so to do; R. v. 
 Price, 7 C. (6 P. 178; provided they are upon the land or manor of 
 his master, or other place mentioned in the 7 tfe 8 Vict.c. 29; but 
 without authority he may not apprehend them upon the lands of 
 others. R. v. Davis, 1 C. & P. 785. A person who has only the 
 right of shooting over the land of another, has no authority to autho- 
 rize a gamekeeper to apprehend persons trespassing on such land in 
 
Assault, etc. 689 
 
 pursuit of game ; consequently, resistance to such apprehension, if 
 not excessive, is lawful. S. v. Wood, \ F. & F. 470. Although 
 s. 2 is confined to offences mentioned in s. 1, still an offender under 
 s. 9 may be apprehended under the powers given by s. 2; for though 
 a greater punishment is inflicted by s. 9 where several are out armed 
 together, it is still an offence within s. 1. R. v. Ball, 1 Mood. C. C. 
 330. And now, by virtue of stat. 14 & 15 Vict. c. 19, s. 11, anU, 
 p. 488, my person may apprehend persons committing offences against 
 «. 9 of this act in the night-time. R. v. Sanderson, \ F.& F. 698, 
 ante, p. 644, 
 
 SHOOTING AT OFFICERS OP THE CUSTOMS. 
 
 Statutes. 
 
 16 (& 17 Vict. c. 107, s. 249.] — If any person shall maliciously shoot 
 at any vessel or boat belonging to her Majesty's navy, or in the ser- 
 vice of the revenue, within one hundred leagues of any part of the 
 coast of the United Kingdom, or shall maliciously shoot at, maim, 
 or wound any officer of the army, navy, or marines, being duly em- 
 ployed for the prevention of smuggling, and on full pay, or any 
 officer of customs or excise, or any person acting in his aid or as- 
 sistance, or duly employed for the prevention of smuggling, in the 
 execution of his office or duty, every person so offending, and every 
 person aiding, abetting, or assisting therein, shall, upon conviction, 
 be adjudged guilty of felony, and sliall be liable, at the discretion of 
 the court before which he shall be convicted, to be transported be- 
 yond the seas for the term of his natural life, or for any term not less 
 than fifteen years, or to be imprisoned for any term not exceeding 
 three years. 
 
 20 (& 21 Vict. c. 3.']— Ante, p. 172. 
 
 16 (fc 17 Vict. c. 107, s. 303 — Limitation of Proceedings.'] — All suits, 
 indictments, or informations brought or exhibited for any offence 
 against this or any other act relating to the customs, in any court, or 
 before any justice or justices, shall be brought or exhibited within 
 three years next after the date of the offence committed. 
 
 Sect. 304 — Venue."] — Any indictment, prosecution, or information 
 whicli may be instituted or brought under the direction of the Com- 
 missioners of Customs, relating to the customs, shall and may be 
 inquired of, examined, tried, and determined in any county of England 
 when the offence is committed in England, and in any county of 
 Scotland when the offence is committed in Scotland, and in any 
 county in Ireland when the offence is committed in Ireland, in such 
 manner and form as if the offence had been committed in the said 
 county where the said indictment or information shall be tried. 
 
 Sect. 306 — Proof of Employment.] — The averment that any person 
 is an ofiicer of customs or excise, or that any person was employed 
 for the prevention of smuggling, shall be deemed to be sufficient, 
 
690 Assault, etc. 
 
 without proof- of such fact or facts, unless the defendant in any such 
 case shall prove to the contrary. 
 
 Sect. 307 — Proof of Commission, and Competency of Wi1messes.]~ 
 Enacts, that if upon any trial a question shall arise whether any per- 
 son is an officer of the army, navy, or marines, being duly employed 
 for the prevention of smuggling, and on full pay, or an officer of 
 customs or excise, his own evidence thereof, or other evidence of his 
 having acted as such, shall be deemed suflScient, and such person 
 shall not be required to produce his commission or deputation, unless 
 sufficient proof shall be given to the contrary: and every such officer, 
 and any person acting in his aid or assistance, shall be deemed a 
 competent witness upon the trial of any suit or information on ac- 
 count of any seizure or penalty as aforesaid, notwithstanding such 
 officer or other person may be entitled to the whole en- any part of 
 such seizure or penalty, or to any reward upon the conviction of the 
 party charged in such suit or information. 
 
 Indictment. 
 
 Commencement as ante, p. 620] — with a certain pistol loaded with 
 gunpowder and one leaden bullet, at and against one J. N., the said 
 J. N. then being an officer of the customs (" any officer in the a/rmy^ 
 navy, or marines, being duly employed for the prevention of smuggling, ■ 
 and on full pay, or any officer of customs or excise, or any person acting 
 in his aid or assistance, or duly employed for the prevention of s-mug- 
 gling"), and then being in the due exercise of his office and duty as 
 such officer, feloniously and maliciously did shoot ; against the form 
 [as ante, p. 347]. As to the venue, see ante, pp. 25, 688. 
 
 Felony : penal servitude for life or for not less than fifteen years, 
 or imprisonment not exceeding three years, 16 & 17 Vict. c. 107, s. 249; 
 20 & 21 Vict. c. 3 (ante, p. 172). 
 
 This offence is not triable at quarter sessions. 5 tfe 6 Vict. c. 88, s. 1 
 (ante, p. 104). 
 
 Evidence. 
 
 Prove that J. N. was an officer of the customs, etc., in the due 
 exercise of his office. His own evidence thereof, or other evidence of 
 his acting as such, will be sufficient, without producing his com- 
 mission or appointment. 16 <6 17 Vict. c. 107, ss. 306, 307. The 
 statute only applies to such officers of the army, navy, or marines as 
 are on full pay, and employed for the prevention of smuggling. 
 Prove that the defendant wilfully fired at J. N. If he fired wilfully, 
 it will be sufficient evidence of his doing so malicious](y. 
 
 Indictment for Maiming' or Wounding Officers of the Custo^is. 
 
 Commencement as cmte, p. 620] — one J. N., then being an officer of 
 the customs [see the last precedeni], and then being in the due exer- 
 cise of his office and duty as such officer, feloniously and maliciously 
 did wound (" maim or wound") ; against the form [o« ante, p. 347]. 
 As to the venue, see ante, pp. 25, 688. 
 
 Felony: 16 <& 17 Vict. c. 107, s. 249. See the last precedent. 
 
 This offence is not triable at quarter sessions. 5 c6 6 Vict. c. 38, s. 1 
 (ante, p. 104). 
 
Assault, etc. 691 
 
 Evidence. 
 
 This is proved in the same manner as the last case, except that, 
 instead of proving the shooting, it must be proved that the defendant 
 wounded (or maimed) J. N. 
 
 ASSAULTING AND OBSTRUCTING OFFICERS OF CUSTOMS. 
 
 Statutes. 
 
 16 <& 17 Vict. c. 107, s. 251.]— If any person shall by force or 
 violence assault, resist, or obstruct any officer of the army, navy, 
 or marines, being duly employed for the prevention of smuggling, 
 and on full pay, or any officer of customs or excise, or other person 
 duly employed for the prevention of smuggling, in the due execution 
 of his or their duty, or any person acting in his or their aid, every 
 person so offending being thereof convicted, shall be transported for 
 seven years, or sentenced to be imprisoned in any house of correc- 
 tion or common gaol, and kept to hard labour for any term not ex- 
 ceeding three years, at the discretion of the court before whom such 
 offender shall be tried and convicted as aforesaid. 
 
 20 <& 21 Vict. c. 3, s. 2.']— Ante, p. 172. 
 
 27 (& 28 Vict. c. 47, s. 2.]— Ante, p. 173. 
 
 IndictTnent. 
 
 Commencement as ante, p. 620]— unlawfully did, by force and vio- 
 lence, assault and resist (" assault, resist, or ohslnict") one J. N., the 
 said Jf. N. then being an officer of the customs (see the last pi-ecedent 
 but one), and then being in the due execution of his duty as such 
 officer; against the form [as ante, p. 347]. As to the venue, see ante, 
 pp. 25, 688. 
 
 Misdemeanor: penal servitude for not more than seven nor less 
 than Jive years, or imprisonment, with hard labour, not exceeding 
 three years. 16 ^ 17 Vict. c. 107, s. 251. 
 
 Evidence. 
 
 Prove that the defendant, with force and violence, assaulted and 
 resisted J. N. And prove the other allegations in the indictment in 
 the same manner as in, the last two cases. 
 
 ASSAULTING, ETC., APPRENTICES OR SERVANTS. 
 
 Statute. 
 24 <& 26 Vict. e. 100, s. 26.]— Whosoever, being legally liable, either 
 as a master or mistress, to provide for any apprentice or servant 
 necessary food, clothing or lodging, shall wilfully and without lawful 
 excuse refuse or neglect to provide the same, or shall unlawfully and 
 maliciously do or cause to be done any bodily harm to any such 
 
692 Assault, etc. 
 
 apprentice or servant, so that the life of such apprentice or servant 
 shall be endangered, or the health of such apprentice or servant shall 
 have been or shall be likely to be permanently injured, shall be 
 guilty of a misdemeanor, and being convicted thereof shall be liable, 
 at the discretion of the court, to be kept in penal servitude for the 
 term of three years [now Jive years, 27 d 28 Vict. c. 47, s. 2, ante, p. 
 173] , or to be imprisoned for any term not exceeding two yeai-s, with 
 or without hard labour. 
 
 Indictment for not providing an Apprentice with necessary Food. 
 
 Surrey, to wit: — The jurors for our lady the Queen upon their 
 oath present, that J. S., on the first day of June, in the year of our 
 Lord , then being the master of one J. N., his apprentice Q^ ap- 
 prentice or servant"), and then being legally liable to provide for the 
 said J. N., as his apprentice as aforesaid, necessary food (" necessary 
 food, clothing or lodging"}, unlawfully, wilfully, and without lawful 
 excuse, did refuse and neglect to provide the same [so that the life 
 of the said J. N. was thereby endangered] (" so that the life of such 
 apprentice or servant shall be endangered, or the health of ^ch ap- 
 prentice or servant shall have been or shall be likely to be permamnily 
 injured") ; against the form [as ante, p. 347]. Add counts varying 
 the statement of the injury sustained. 
 
 Misdemeanor: penal servitude for five ["27 Sc 28 Vict, c. 47, ». 2, 
 ante, p. 173] years, or imprisonment, with or without hard labour, 
 not exceeding two years. 2A ^ 25 Vict. c. 100, s. 26. As to fining 
 the offender and requiring him to enter into recognizances and find 
 sureties for keeping the peace and being of good behaviour, Id. s. 71, 
 ante, ^.619. 
 
 Evidence. 
 
 Prove the apprenticeship; if it was by deed, by production and 
 proof of the execution of the deed, or, in case it be in the possession 
 of the defendant, and there be no counterpart, by secondary evidence 
 of its contents, after due notice given to the defendant to produce it 
 (see ante, p. 220). The legal liability of the defendant to provide the 
 prosecutor with necessary food, clothing or lodging will be inferred, 
 even if it be not expressly stipulated for, from the apprenticeship 
 itself. Prove the wilful refusal or neglect of the defendant to pro- 
 vide the prosecutor with necessary food, etc., as stated in the indict- 
 ment. Whether it be necessary to prove that by such refusal or 
 neglect the prosecutor's life was endangered, or his health was or 
 was likely to be permanently injured, depends upon the construction 
 which is to be put upon the statute. If the words " so that the life 
 of such person shall be endangered," etc., apply to all the preceding 
 matter, such proof will be necessary ; if only to the branch of the 
 section which relates to the actual doing of bodily harm to the ap- 
 prentice or servant, such proof will be unnecessary. Until there has 
 been some decision on the subject, it will be safer to introduce the 
 allegation between brackets, and to be prepared with evidence to 
 sustain it. It would seem, indeed, to be the better opinion, that the 
 words " so that the life of such person shall be endangered, etc.," 
 override all the preceding matter, otherwise a mere single wilful 
 refusal to provide a dinner would be within the clause. Upon an 
 indictment for unlawfully and maliciously assaulting an apprentice 
 or servant, it is clear that such allegation and proof are necessary. 
 
Assault, etc. 693 
 
 EXPOSING CHILDREN WHEREBY LIFE IS ENDANGERED. 
 
 Statute. 
 24 (& 25 Vict. c. 100, s. 27.] — Whosoever shall unlawfully abandon 
 or expose any child, being under the age of two years, whereby the 
 life of such child shall be endangered, or the health of such child 
 shall have been or shall be likely to be permanently injured, shall be 
 guilty of a misdemeanor, and being convicted thereof shall be liable, 
 at the discretion of the court, to be kept in penal servitude for the 
 term of three years [now five years, 27 d; 28 Vict. c. 47, s. 2, ante, p. 
 173], or to be imprisoned for any term not exceeding two years, with 
 or without hard labour. 
 
 Indictment. 
 
 Commencement as ante, p. 620] — unlawfully did abandon and ex- 
 pose (" abandon or expose") a certain child called J. N. then being 
 under the age of two years, whereby the life of the said child was 
 endangered [or " whereby the health of such child was likely to be 
 permanently injured"]; against the form [as ante, p, 347]. 
 
 Misdemeanor: penal servitude for Jive [27 Sf 28 Vict. c. 47, s. 2, 
 ante, p. \73] i/ears, or imprisonment, with or ivithout hard labour, 
 not exceeding two years. 24 Sj- 25 Vict. c. 100, s. 27. As to fining 
 the offender and requirinij him to enter into recognizances and find 
 sureties for keeping the peace and being of good behaviour, Id. s. 71, 
 ante, p. 619. 
 
 Efiiidence. 
 This provision is new. In order to sustain an indictment under 
 it, it is only necessary to prove that the defendant wilfully aban- 
 doned or exposed the child mentioned in the indictment; that the 
 child was then under two years of age; and that its life was thereby 
 endangered, or its health had been or then was likely to be perma- 
 nently injured. The following facts were held to warrant a convic- 
 tion on an indictment framed on this section charging the prisoners 
 with abandoning and exposing a child under the age of two years, 
 whereby its life was endangered. One of the prisoners was the 
 mother of a weakly bastard cliild. When it was about five weeks 
 old, both the prisoners put the child in a hamper at S., wrapped up 
 in a shawl and packed with shavings and cotton wool, and the mo- 
 ther took the hamper from S. to the booking-office of the railway 
 station at M. (a distance of about four miles) and there left it, having 
 paid the carriage of the hamper to G. The hamper was addressed 
 to the lodgings of the child's father at G., and he had told the mother 
 previous to the child's birth that if she sent it to him he would keep 
 it. The mother told the clerk at the station to be very careful of 
 the hamper, and to send it by the next train, which was done in ten 
 minutes from the time of its delivery at the station. Upon the ad- 
 dress were the words " With care ; to be delivered immediately " 
 The hamper was, as above mentioned, duly sent by train, and was 
 delivered at its address in G. in a little less than an hour from the 
 time of its being despatched from M. On its being opened the child 
 was alive and lived for three weeks afterwards, when it died from 
 causes not attributable to the conduct of the prisoners or either of 
 them. R. v. Falkingham, L. R., 1 C. C. R. 222; 39 L. J. {M. C.) 47. 
 
694 False Imprisonment. 
 
 As to the cases in which an indictment for murder or manslaughter 
 will lie, where death ensued from the abandonment or exposure, see 
 ante, p. 624. 
 
 See also ante, p.l, as to the cases in which an indictment for a mis- 
 demeanor of this nature would lie at common law. 
 
 Sect. 4. 
 false imprisonment. 
 
 Indictment for an Assault and False Imprisonment 
 Central Criminal Court, to wit:— The jurors for our lady the Queen 
 upon their oath present, that J. S., on the first day of June, in the 
 
 year of our Lord , in and upon one J. N. did make an assault, 
 
 and him the said J. N. did then beat, wound, and ill-treat, and him 
 the said J. N. then unlawfully and injuriously, and against the will 
 of the said J. N., and also against the laws of this realm, and without 
 any legal warrant, authority or reasonable or justifiable cause what- 
 soever, did imprison and detain so imprisoned for a long space of 
 time, to wit, for the space of ten hours then next following," and 
 other wrongs to the said J. N. did, to the great damage of the said 
 J. N., and against the peace of our lady the Queen, her crown and 
 dignity. If any money were extorted from the prosecutor for setting 
 him at liberty, add an averment of it immediately after the ahme 
 asterisk, as thus : then next following, and until he the said J. N. 
 had paid the said J. S. the sum of five pounds and five shillings 
 of the moneys of the said J. N. for his enlargement; and other 
 wrongs, etc., as above. Add a count for a common assault; see ante, 
 p. 658. 
 
 False imprisonment is a misdemeanor at common law, punishahk 
 with fine or imprisonment, or both. 
 
 Evidence for the Prosecution. 
 
 All the prosecutor has to prove is the imprisonment: it is iox the 
 defendant to show that he was justified in what he did, and that the 
 imprisonment was lawful. 
 
 Every confinement of the person is an imprisonment, whether it ■ 
 be in a common prison or in a private house, or in the stocks, or even 
 by forcibly detaining one in the public streets. 2 Inst. 482, 589 ; 
 Cro. Car. 209 ; Com. Dig. Imprisonment (G.) ; 2 Selw. N. P. 915 
 (llth ed.). But merely preventing a man from proceeding along a 
 particular way, when he may go where he desires to go ■without 
 going along it, is not an imprisonment. Bird v. Jones, 7 Q. B. 742. 
 Where a magistrate's warrant has been shown to a party, who goes 
 before a magistrate at the desire of a constable without further com- 
 pulsion, this, it seems, is a sufficient imprisonment. Chinn v. Morris, 
 2 a & P. 361: Pocock v. Moore, By. & M. 321. But where the 
 warrant is used merely as a summons, and the party voluntarily 
 goes before the magistrate, this, it seems, is not an imprisonment. 
 2 N. B. 211 ; By. & M. 26; & B. & C. 528; 9 Dowl. & B. 558. 
 Where a man who had an idiot brother bed-ridden in his house kept 
 him in a dark room without sufficient warmth or clothing, it was 
 holden not to be an imprisonment. B. v. Smith, 2 C. <& P. 449. 
 
False Imprisonment. 695 
 
 If tlie prosecutor fail in proving the imprisonment, he may pro- 
 ceed to prove the second count for the assault and battei-y, as di- 
 rected ante, p. 668 et seq. 
 
 Evidence for the DefendoMt. 
 The defendant must either prove that he did not imprison J. N. at 
 all, or he must justify the imprisonment. The grounds upon which 
 an imprisonment can be justified may be considered under the fol- 
 lowing heads. 
 
 Arrest imder Civil Process.l — An arrest for a capias ad satisfaci- 
 endum, out of a superior court, if regular and regularly executed, 
 may be justified by the officer who executed it, whether there be a 
 judgment to warrant it or not; 1 Lev. 95; 3 Lev. 20; 1 Salle. 409; but 
 if the plaintiff or his attorney would justify under it, he must show 
 such a judgment as would warrant it ; per Holt, C. J., Carth. 443 : 
 Barker v. BraMm, 3 Wils. 368; 2 W. Bl. 866; and therefore, where 
 a ca. sa. was sued out on a judgment against an administratrix, with- 
 out suggesting a devastavit, it was holden, that false imprisonment 
 would lie against the plaintiff and his attorney. Id. But it is not 
 necessary that a ca. sa. should be returned in order to justify under 
 it. Rowland v. Veale, Cowp. 18. 
 
 As to process out of an inferior court, it must appear that the court 
 had jurisdiction of the cause of action, 10 Co. 76 a, 68 6/ and see 3 
 Leo. 141, 243 ; T. Jones, 165, and that the process was executed 
 within the jurisdiction, 3 Lev. 243, in order to justify either the officer 
 or the party. (See ante, p. 640 et seq.) 
 
 But if the writ or warrant be void upon the face of it, as if the 
 officer's name be inserted in the warrant after it is sealed, 2 Wils. 47 ; 
 or if the writ be executed after the day on which.it expires, 2 Esp. 
 585; or on a Sunday, 29 C. 2, c. 7, s. 6 ; it will be no justification to 
 the person arresting under it. But neither the officer nor the party 
 is subject to an indictment for false imprisonment for arresting a 
 person privileged from arrest, whether the privilege be permanent, 
 2 Dong. 671, or temporary, 2 W. Bl. 1190; and see Id. 1195. 
 
 Arrest under civil process is now abolished, except under the 
 circumstances and subject to the restrictions set forth in 32 <i6 33 
 Vict. c. 62, ss. 4—10; 33 & 34 Vict. o. 76. 
 
 Arrest wider Warrant.'] — A warrant from a magistrate having 
 general cognizance of the matter of it will justify the officer in exe- 
 cuting it, whether there be any grounds in fact for granting it or not ; 
 Shergold v. Hollaway, 2 &tr. 1002; but, on the contrary, if the magis- 
 trate have not cognizance of the matter of the warrant ; if, for in- 
 stance, he granted a warrant to take up J. N. to answer in a plea of 
 debt, the constable would not be justified in arresting him. Id.; 
 and see Com. Dig., Imprisonment (H.) 8, 9. The warrant must be 
 executed within the proper jurisdiction ; formerly, if a warrant were 
 granted generally, it could only be executed within the district for 
 which the constable was appointed, although it was otherwise when 
 it was granted to a constable by name ; but now (see stat. 11 c6 
 12 Vict. c. 42, s. 10) constables may execute process out of their dis- 
 tricts within the jurisdiction of the justice granting or backing the 
 warrant. So, a conviction by a magistrate having competent juris- 
 diction over the subject-matter of it, upon which the party has been 
 arrested, is, until reversed or quashed, conclusive evidence in favour 
 
696 False Imprisonment. 
 
 even of the magistrate, in a prosecution against him for false impri- 
 sonment. 7 T. R. 633, n. See stat. 11 c6 12 Vict. cc. 42, 43, 44. 
 
 Arrest without Warrant.'] — A justice of peace may apprehend, or 
 cause to be apprehended by a verbal order merely, any person com- 
 mitting a felony or breach of the peace in his presence. 2 Hah, 86. 
 
 The sheriff or coroner also may apprehend any felon within the 
 county, without warrant. 4 Bla. Com. 289. 
 
 A constable may arrest any one for a breach of the peace in his 
 presence, and keep him in his house or the stocks until he can bring 
 him before a magistrate. 1 Hale, 587. See Cook v. Nethercote, 6 
 C. & P. 741. So, a constable may justify arresting a man within his 
 constablewick upon a reasonable charge of felony, although it after- 
 wards appear that the man is innocent, or even that no felony was in 
 fact committed. Samuel v. Paine, Doug, ib^; Cowles y. Dunbar, 
 2C.& P. 565. See R. v. Ford, R. S R. 329 : R. v. Thompson, 1 
 Mood. C. C: 80. (See ante, p. 641.) So, where a felony has been 
 actually committed, a constable may arrest a man upon a reasonable 
 suspicion of his having committed it ; 2 Inst. 62 ; 1 Hale, 90, 91, 92; 
 Leadwith V. Catchpole, Cold. 291; and it has been holden that the 
 question of reasonable suspicion is matter of law, and should not be 
 left to the jury. Hill v. Yates, 2 Moor. 80; and see Moor v. Kaye, 
 4 Taunt. 34. 
 
 A constable, watchman, or beadle may arrest and detain in ens- 
 tody, for examination, any person whom he finds in the streets at 
 night, and whom there is reasonable ground to suspect of felony, 
 although there be no proof of a felony actually committed.' Law- 
 rence V. Hedger, 3 Taunt. 14: and see 2 Hale, 98; 2 Inst. 52. 
 
 A private person, and a fortiori a peace officer, if a felony be com- 
 mitted, or a dangerous wound given in his presence, is not only jus-. 
 tified in arresting, but is bound bylaw to arrest, the felon. 2 Hawk 
 c. 12, s. 1. So, he is justified in restraining persons committing an 
 affray ; but he cannot arrest any person concerned in it after the affray 
 is over, for in that case a warrant is necessary. 2 Inst. 52. So, lie 
 may arrest any man about to commit a felony or treason, or any 
 act which would manifestly endanger another's life, and detain him 
 until the intent be presumed to have ceased. 2 Hawk. c. 21, «. 19; 
 Rol. Abr. 559 (E.) : Hancock v. Baker, 2 B. d P. 260. So, upon 
 a reasonable suspicion, he may arrest another for felony ; R.y.Hunt, 
 1 Mood. C. C. 93 ; but he does it at his peril ; for, if the party be 
 innocent, the person arresting is guilty of a false imprisonment. 
 Stonehmse v. Elliott, 6 T. R. 315. 
 
 Persons found committing any offence against the stat. 24 & 25 
 Vict. c. 97, the Malicious Injuries Act, may be apprehended without 
 warrant by any peace officer, or by the owner of the property, his 
 servant, or person authorized by him. 24 c6 25 Vict. c. 97, s. 61; see 
 R. V. Fraser,! Mood. C. C. 419. So, with respect to offences against 
 the Larceny, etc. Act, 24 <fc 25 Vict. c. 96, s. 103; the act relating to 
 Coinage Offences, 24 d 25 Vict. c. 99, s. 31; the Game Act, 9 0. 4, 
 c. 69, s. 2. And by stat. 16 <& 17 Vict. c. 107, s. 244, persons making 
 signals to smuggling vessels may be apprehended by any person. 
 By the Vagrant Act, 5 G. 4, c. 83, s. 6, persons offending against 
 that act may be apprehended. By 14 d; 15 Vict. c. 19, s. 11, any 
 person whatsoever may apprehend any person found committing any 
 indictable offence in the night (i. e. between 9 p.m. and 6 a.m.), and 
 convey or deliver him to a peace officer. (See ante, pp. 644, 688.) 
 Again, by several of the statutes above mentioned, viz. 24 cfc 25 Vict. 
 
False Imprisonment. 697 
 
 c. 96, s. 104; c. 97, s. 57; c. 100, «. 56; any constable or peace officer 
 make take into custody, without warrant, any person whom he shall 
 find loitering or lying in any highway, yard, or other place, during 
 the night, or whom he shall have good cause to suspect of having 
 committed or being about to commit any felony against those acts 
 respectively, and shall take him as soon as reasonably may be before 
 a justice of the peace, to be dealt with according to law. Like pro- 
 visions are contained in many other general and local acts, with 
 respect to particular subjects. 
 
 Arrest for a Contempt.'] — If a contempt be committed in the face 
 of a court (as, by rude and contumelious behaviour ; by obstinacy, 
 perverseness, prevarication, or refusal to answer any lawful question ; 
 by breach of the peace, or any wilful disturbance whatever), the 
 judge may order the offender to be instantly apprehended and im- 
 prisoned, at his (the judge's) discretion, without any further proof or 
 examination. 2 Sawk c. 22 ; 4 Bl. Com. 282, 283 ; 1 Taunt. 146. 
 See Cropper v. Horton, 8 D. <& R. 166: R. v. CItarlesworth, 2 F. & F. 
 334: Ex parte Fernandez, 30 Law J., C. P. 321. 
 
 Arrest after am. Escape.] — In civil cases, where a person in custody 
 in execution escapes, if it be a negligent escape, the gaoler or officer 
 may retake him ; if voluntary, a retaking would be a false imprison- 
 ment. 1 Saund. 36, «.; 1 Sid. 330; 1 Show. 174; Atkinson v. Jame- 
 son, 6 T. R. 25. Where a person in custody upon mesne process 
 escapes, if the escape be negligent, the gaoler or officer may retake 
 him ; if voluntary, he cannot. 
 
 In criminal cases, where a prisoner escapes, if the escape be negli- 
 gent merely, the gaoler or officer may retake him, at any time, with- 
 out warrant; Dalt. c. 169; if voluntary, he cannot afterwards be 
 retaken by virtue of the same warrant under which he was at first 
 arrested ; 2 Hawk. c. 14, s. 9 ; but he may be retaken on a fresh war- 
 rant, or without warrant in cases where he might have been arrested 
 without warrant originally. 
 
 Arrest under other Authority.] — Where a feme covert appeared 
 before a justice of the peace as a material witness in a case of felony, 
 it was holden that he was justified in committing her until the ses- 
 sions, upon her refusing to appear at the sessions to give evidence, 
 or to find sureties for her appearance. Bennet v. Watson, b M. & 
 Sel. 1. So, a magistrate may commit for re-examination; but if the 
 committal be for an unreasonable time, the warrant of commitment 
 is virtually void, and the commitment is an imprisonment. Davis v. 
 Capper, 5 Man. & Byl. 53 ; 10 B. & C. 28. 
 
 Commissioners of bankrupt had, in certain cases, authority to com- 
 mit. 12 & 13 Vict. c. 106, s. 260. If they acted beyond the limits of 
 their authority it amounted to an imprisonment ; but if they acted 
 within the limits of their authority, though from an eri-oneous or mis- 
 taken judgment, it was otherwise. Doswell v. Impey, 1 B. & C. 163; 
 2 D. J JJ. 350. They could not commit for contempt, In re Faulk- 
 ner, 2C.M.& R. 525, until the stat. 5 <fc 6 Vict. u. 122, s. 66, gave 
 them all the powers and privileges of a court of record. See Wat- 
 son V. Bodell, 14 M. & W. bl. By 32 & 33 Vict. c. 71, s. 65, the 
 London Court of Bankruptcy is continued as a court of record, and 
 by s. 66, every judge of a local Court of Bankruptcy shall, in addition 
 to his ordinary powers as a county court judge, which are those of a 
 
 W. H H 
 
698 Abduction. 
 
 judge of a court of record (9 <fe 10 Vict. c. 95, s. 3), have all the 
 powers and jurisdiction of a judge of the Court of Chancery. 
 
 Officers in the array and navy have, in many instances, authority 
 to imprison soldiers and seamen under their command. But false 
 imprisonment has been holden to lie against a superior officer, where 
 the imprisonment at first was legal, but was aftenvards aggravated 
 with many circumstances of cruelty, and continued beyond all neces- 
 sary bounds. Wall v. Macnamara, 1 T. R. 536, cit. So, where a 
 seaman was confined by his captain for three days, for a supposed 
 breach of duty, and was then liberated by him, without being brought 
 to a court-martial, it was holden that false imprisonment would lie. 
 Swintom v. Molloy, 1 T. R. 537, cit. 
 
 An arrest and detention under an impress warrant may be lawful, 
 but the party executing it does so at his peril ; for if he take a man 
 not liable to be impressed, as, for instance, a person who has never 
 served at sea, he is guilty of false imprisonment. Flewster v. Royh, 
 1 Camp. 187. 
 
 Where the master of an English merchant ship contracted with 
 the Chilian government to take from Valparaiso to England certain 
 persons whom that government had ordered to be banished to Eng- 
 land, this was held to be a false imprisonment as soon as the ship 
 was out of the Chilian territory. R. v. Lesley, Bell, 220 ; 29 L. J. 
 {M. C.) 97. 
 
 Sect. 6. 
 abduction. 
 
 OP A WOMAN ON ACCOUNT OP HER POETUNE, ETC. 
 
 Statute. 
 24 & 25 Vict. c. 100, «. 53.] — Where any woman of any age shall 
 have any interest, whether legal or equitable, present or future, abso- 
 lute, conditional, or contingent, in any real or personal estate, or 
 shall be a presumptive heiress or co-heiress, or presumptive next of 
 kin, or one of the presumptive next of kin, to any one having such 
 interest, whosoever shall, fi-om motives of lucre, take away or detain 
 such woman against her will, with intent to marry or carnally know 
 her, or to cause her to be married or carnally known by any other 
 person, and whosoever shall fraudulently allure, take away, or detain 
 such woman, being under the age of twenty-one years, out of the 
 possession and against the will of her father or mother, or of any 
 other person having the lawful care or charge of her, with intent to 
 marry or carnally know her, or to cause her to be married or carnally 
 known by any other person, shall be guilty of felony, and being con- 
 victed thereof shall be liable, at the discretion of the court, to be 
 kept in penal servitude for any term not exceeding fourteen years 
 and not less than three years [now five years, 27 & 28 Vict. c. 47, s. 2, 
 ante, p. 173], or to be imprisoned for any term not exceeding two 
 years, with or without hard labour; and whosoever shall be con- 
 victed of any offence against this section shall be incapable of taking 
 any estate or interest, legal or equitable in any real or personal pro- 
 perty of such woman, or in which she shall have any such interest, 
 
Abduction. 699 
 
 or which shall come to her as such heiress, co-heiress, or next of 
 kin as aforesaid; and if any such marriage as aforesaid shall have 
 taken place, such property shall, upon such conviction, be settled 
 in such manner as the Court of Chancery in England or Ireland shall 
 upon any information at the suit of the attorney-general appoint. 
 
 Sect. 54r~-Ahdiiction by Force with Intent to Marry, etc.'] — Whoso- 
 ever shall, by force, take away or detain against her will any woman, 
 of any age, with intent to marry or carnally know her, or to cause 
 her to be married or carnally known by any other person, shall be 
 guilty of felony, and being convicted thereof shall be liable, at the 
 discretion of the court, to be kept in penal servitude for any term not 
 exceeding fourteen years and not less than three years [now five 
 years, 27 & 28 Vict. c. 47, s. 2, ante, p. 173], or to be imprisoned for 
 any term not exceeding two yeai's, with or without hard labour. 
 
 Indictment. 
 
 Central Criminal Court, to wit: — The jurors for our lady the Queen, 
 upon their oath present, that J. S., on the first day of June, in the 
 
 year of our Lord , feloniously and from motives of lucre did take 
 
 away and detain (•' take away or detain") one A. N. against her will, 
 she, the said A. N., then having a certain present and absolute in- 
 terest (" any interest, whether legal or equitable, present or future, 
 absolute, conditional, or contingent") in certain real estate (" real or 
 personal estate") with intent her the said A. N. to marry (" to marry 
 <rr carnally know her, or to cause her to be married or carnally known 
 by any other person"); against the form \as ante, p. 347]. Add a 
 count slating generally the no ture of some part of the property, and if 
 the intent be doubtful, add. counts varying the intent. Formerly, if a 
 woman was taken away forcibly in one county, and was married or 
 defiled with her own consent, without any continuing force, in another 
 county, the offence was not complete in either county, and the offender 
 could not be indicted; R. v. Gordon, 1 Buss. 707; but now, as actual 
 marriage or defilement is not necessary, this difficulty cannot occur. 
 
 Felony : penal servitude for not more than fourteen nor less than 
 five [27 ^ 28 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment 
 with or without hard labour, not exceeding two years. 24 Sf 25 Vict, 
 c, 100, s. 53. As to requiring the offender to enter into recognizances 
 and find sureties for keeping the peace, Id. s. 71, ante, p. 619. 
 
 This offence is not triable at quarter sessions. 5 Sf6 Vict. c. 38, s. 1 
 (ante p. 104). 
 
 Evidence. 
 
 Prove that the defendant took away and detained A. N. against her 
 will. If she be taken away in the first instance with her own con- 
 sent, but afterwards refuse to continue with the offender, and be for- 
 cibly detained by him, the offence is within the statute. See 1 Hawk, 
 c. 41, s. 7. So, it will be within the statute, if, having been forcibly 
 taken away, she be afterwards married or defiled with her own con- 
 sent ; for the offender is not to escape from the provisions of the 
 statute, by having prevailed over the weakness of a woman whom he 
 originally got into his power by such base means. Fulwood's case, 
 Cro. Car. 488 : Swenden's case, 5 St. Tr. 460 ; 1 Hale, 660. And 
 though she be taken away and married with her own consent, yet, if 
 this be effected by means of fraud, it would seem to be a case within 
 
 H H 2 
 
700 Ahduciion. 
 
 the statute ; for she cannot, whilst under the influence of fraud, be 
 considered to be a free agent. R. v. Wakefield, Lancaster Aamm 
 1827. Prove, also, that A. N. had the interest stated in the mdict- 
 ment, from which the motives of lucre may be presumed. Prove the 
 intent stated in the indictment by the declarations or acts of the de- 
 fendant, or by circumstances from which the intent may be inferred. 
 See R. V. Barratt, 9 C. d P. 387. Under the old law, the woman 
 must have been married or defiled ; but this is no longer necessary, 
 the intent to marry or carnally know being sufficient. The woman, 
 though married, may be a witness against the offender ; for, though 
 his wife de facto, she is not so de jure. 1 Hale, 661 ; 4 Com. 209 : 
 Brown's case, Ventr. 243 ; 3 Keb. 193 : R. v. WaJcefield, uhi supra. 
 And for the same reason, she is a competent witness for him on a 
 prosecution for this offence, though she has cohabited with him from 
 the day of the marriage. R. v. Perry, 1 Hawk. c. 41, s. 13 ; 1 Euss. 
 710; 1 East, P. C. 454. 
 
 The offender is incapable of taking any interest, legal or equitable, 
 in the real estate of the woman, or in which she has any such in- 
 terest, or which shall come to her as any such heiress, etc. And if a 
 marriage shall have taken place, the property shall, on conviction of 
 the offender, be settled in such manner as the Court of Chancery, 
 upon information at the suit of the attorney-general, shall appoint. 
 24 <fi 25 Vict. c. 100, s. 53. The provision in that section against the 
 fraudulent taking away of women under the age of twenty-one, and 
 also the provisions of s. 54, against the forcible taking away of 
 women with intent to marry, etc., are new. R. v. Burrell, L. <& C. 
 354 ; 33 L. J. (M. C.) 54, is a decision on that part of s. 53, which 
 relates to the fraudulent taking away of women under the age of 
 twenty-one. The facts proved in that case, which were complicated, 
 were held not sufficient to sustain a conviction. 
 
 OP A GIRL UNDER SIXTEEN YEARS OF AGE. 
 
 Statute. 
 
 2i & 25 Yict. c. 100, s. 55.]— Whosoever shall unlawftdly take or 
 cause to be taken any unmarried girl, being under the age of sixteen 
 years, out of the possession and against the will of her father or 
 mother, or of any other person having the lawftil care or charge of 
 her, shall be guilty of a misdemeanor, and being convicted thereof 
 shall be liable, at the discretion of the court, to be imprisoned for 
 any term not exceeding two years, with or without hard labour. 
 
 Indictment, 
 
 Commencement as in the last precedent] — unlawfully did take and 
 cause to be taken one A. N. out of the possession and against the 
 will of R. N., her father (" out of the possession and against the will of 
 her father or mother, or of any other person having the lawful care or 
 charge of her") she the said A. N. then being an unmarried girl 
 under the age of sixteen years, to wit, of the age of fifteen years ; 
 against the form [as ante, p. 347]. The allegation " being an m- 
 
Abduction. 701 
 
 married girl" is sufficient. R. v. Moor, 2 Lev. 179 : R. v. Boyall, 2 
 Bur. 832. 
 
 Misdemeanor : imprisonment, wilh or without hard labour, not 
 exceeding two years. 24 Sc 25 Vict. c. 100, s. 55. ^s to fining the 
 offender and requiring him to enter into recognizances and find sureties 
 for keeping the peace and being of good behaviour, Id.-s. 71, ante, 
 p. 619. 
 
 This offence is not triable at quarter sessions. 5^6 Vict. c. 38, 
 s, 1 (ante, p. 104). 
 
 Evidence. 
 
 Prove that the defendant took A. N. out of the charge of her father, 
 or of some person having the lawful care or charge of her. If the 
 girl leaves her father, without any persuasion, inducement or bland- 
 ishment held out to her by the defendant, so that she has got fairly 
 away from home, and then goes to him, although it may be his moral 
 duty to return her to her father's custody, yet his not doing so is no 
 infringement of this statute, for the statute does not say he shall 
 restore her, but only that he shall not take her away. R. v. Olifier, 
 10 Cox, 402. And if the defendant, at the time he took the girl 
 away, did not know, and had no reason to know, that she was under 
 the lawful care or charge of her father, mother, or some other person, 
 he is not guilty of this offence. R. v. Sibbert, L. R., 1 C. C. R. 184 ; 
 38 L. J. (M. C.) 61. The defendant met a girl in the street, and 
 induced her to go with him to a neighbouring town, where he seduced 
 her. They returned together, and he left her where he had met her. 
 The girl then went to her home, where she lived with her father. 
 The defendant made no inquiry, and did not know, who the girl was, 
 or whether, she had a father living or not, but he had no reason to, 
 and did not, believe that she was a girl of the town. Upon these facts 
 it was held that the defendant could not be found guilty of an offence 
 against s. 55 of 24 di 25 Vict. c. 100. Id. See also R. v. Oreen, 3 
 F. & P. 274. It is an offence within this statute to take away a 
 natural daughter under sixteen from the custody of her putative 
 father. 1 Hawh. c. 11, s. 14: R. v. Cornfield, 2 Str. 1162: R. v. 
 Sweeting, 1 East, P. C. 4Sri. Upon the death of the father, the 
 mother retains her authority, though she marry again, unless the 
 father has disposed of the custody of his. child to others ; the assent 
 of the second husband is not material. Ratcliffe^ case, 3 Co. 38. 
 Prove also that she was taken away against the will of the person 
 who had the care or charge of her. If the defendant induce the 
 parents, by false and fraudulent representations, to allow him to take 
 the child away, this is an abduction within the statute. R. v. Hop- 
 hins, C. & Mar. 254. It seems to be doubtful whether, if the parent 
 once consent, but afterwards dissent, a subsequent taking away can 
 be said to be against the will of the parent. Calthorpe v. Astell, 3 
 Mod. 169 ; 1 East, P. C. 457. And it is not clear from the statute 
 whether it would be an offence to take away a girl against the con- 
 sent of her parent, but by the consent of one who has the temporary 
 care of her. 1 East, P. C. 457. Where the girl's mother had en- 
 couraged her in a lax course of life, by permitting her to go out 
 alone at night and dance at public-houses, from one of which she 
 went away with the defendant, Cochlwm, C. J., ruled that she could 
 not be said to be taken away against the mother's will, within the 
 meaning of the statute. R.\. Primelt, X F. & F. 50. Prove that 
 she was under the age of sixteen years, and unmarried. It is no 
 
702 Ahduction. 
 
 defence that the defendant did not know her to be under sixteen, or 
 might suppose from her appearance that she was older. R. v. RoUntf 
 \C.&E. 456 : R. v. Olifier, 10 Cox, 402. If she was under the age 
 of fourteen years, and taken away by force or fraud, the defendant 
 must be indicted as in the next precedent. 
 
 The act is positively prohibited, and therefore the absence of a 
 corrupt motive is no answer to the charge. So, it was held to be no 
 legal excuse that the defendant made use of no other means than the 
 common blandishments of a lover, to induce her to elope with and 
 marry him. R. v. Twistleton, 1 Lee. 257; 1 &'d387; 2^eJ. 32; 
 1 Hawk. c. 44, s. 10. The taking need not be by force, actual or 
 constructive, and it is immaterial whether the girl consents or not. 
 -ffi. V. Mankletow, Dears. 159; 22 L. J. (M. C.) 115: see R. v. Kipps, 
 4 Cox, 167. Where the defendant went in the night to her father's 
 house, and placed a ladder against her window, and held it for her 
 to descend, which she did, and eloped with him, this was held to be 
 a " taking of her out of the possession of her father " within the sta- 
 tute ; although she herself proposed the plan to the defendant. S. 
 V. Robins, 1 C. <& K. 456. So, where the girl was persuaded by the 
 defendant to leave her father's house and go away with him, without 
 the father's consent, and accordingly left her home alone by a pre- 
 concerted arrangement between them, and went to a place appointed, 
 where she was met by the prisoner, and they then went away toge- 
 ther, without the intention of returning : this was held to be a 
 taking of the girl out of the father's possession within the statute, 
 since up to the moment of her meeting with the defendant, she had 
 not absolutely renounced her father's protection. R. v. Mankletow, 
 supra. So, where the defendant, by concert with the girl, met her 
 and stayed with her away from her father's house for several nights, 
 sleeping with her; and the jury found that the father did not con- 
 sent, and that the defendant knew he did not ; and that he took the 
 girl away with him in order to gratify his passions, and then let her 
 return home, and not with the intention of keeping her away from 
 her home permanently ; the conviction was held right. R. v. Tim- 
 mins, Bell, 276; 30 L. J. (M. C.) 45. Where a man induces a girl, 
 by promises of what he will do for her, to leave her father's house 
 and live with him, he may be convicted under this statute, although 
 he is not actually present or assisting her at the time she leaves her 
 father's roof. R. v. Rohl, 4.F.& F.bd: R. v. Olifier, \0 Cox, 402. 
 But where a young woman persuaded a girl under sixteen to go 
 away with her from her father's house to London, telling her that 
 her (the defendant's) mother wanted a little girl as a servant, and 
 would give her bl. wages, and the girl left her father's house volun- 
 tarily for that purpose, this was held not to be a taking within the 
 statute. R. v. Meadows, 1 C. & K. 399: see R. v. Handley, IF.&F. 
 648: sed quosre. 
 
 STEALING CHILDREN UNDEE THE AGE OF FOURTEEN YEAKS. 
 
 Statute. 
 24 & 25 Vict. c. 100, s. 56.]— Whosoever shall unlawftdly, either 
 by force or fraud, lead or take away, or decoy or entice away, or de- 
 tain, any child under the age of fourteen years, with intent to deprive 
 any parent, guardian, or other person having the lawful care or 
 
Aiduction. 703 
 
 charge of such child, of the possession of such child, or with intent 
 to steal any article upon or about the person of such child, to whom- 
 soever such article may belong ; and whosoever shall, with any such 
 intent, receive or harbour any such child, knowing the same to have 
 been by force or fraud led, taken, decoyed, enticed away, or detained, 
 as in this section before mentioned, shall be guilty of felony, and 
 being convicted thereof shall be liable, at the discretion of the 
 court, to be kept in penal servitude for any term not exceeding seven 
 years and not less than three years [now five years, 27 <Sc 28 Vict, 
 c. 47, s. 2, ante, p. 173], or to be imprisoned for any term not ex- 
 ceeding two years, with or without hard labour, and, if a male under 
 sixteen years of age, with or without whipping : Provided that no 
 person who shall have claimed any right to the possession of such 
 child, or shall be the mother or shall have claimed to be the father 
 of an illegitimate child, shall be liable to be prosecuted by virtue 
 hereof, on account of the getting possession of such child, or taking 
 such child out of the possession of any person having the lawful 
 charge thereof. 
 
 Indictment. 
 Commencement as amte, p. 699] — feloniously and unlawfully did by 
 force {"force or fraud ") lead and take away (" lead or take away, or 
 decoy or entice away, or detain ") one A. N., a child then under the 
 age of fourteen years, to wit, of the age of seven years, with intent 
 thereby then to deprive one J. N., the father i^^ any parent, gxmrdian, 
 or other person having the lawful care or charge of such child ") of 
 such child, of the possession of the said child : against the form [as 
 anie, p. 347]. {2nd Count.) And the jurors aforesaid, upon their 
 oath aforesaid, do further present, that the said J. S. afterwards, to 
 wit, on the day and year aforesaid, feloniously and unlawfully did, by 
 force, lead and take away the said A. N., a child then under the age 
 of fourteen years, to wit, of the age of seven years, with intent 
 thereby then feloniously to steal, take, and carry away divers articles 
 (" any article upon or about the person of such child, to whomsoever 
 such article may belong ") ; that is to say, one necklace [etc., stating 
 the articles'], then being upon and about the person of the said child ; 
 against the form [as ante, p. 347]. Add counts stating that the de- 
 fendant did " by fraud entice away," or " did by fraud detain," or 
 " did by force detain," etc., if necessary. 
 
 Felony : penal servitude not exceeding seven, years and not less than 
 five [27 (& 28 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment, not 
 exceeding two yea/rs, with or without ha/rd labour, and, if a male under 
 sateen years of age, with or without whipping. — 2^ iHb Vict. c. 100, 
 s. 56. As to requiring the offender to enter into recognizances and find 
 sureties for leeeping the peace, Id. s. 71, (mte, p. 619. 
 
 Evidence. 
 Prove that the defendant took and enticed the child away : that 
 the child was under the age of fourteen years ; and prove the in- 
 tent from circumstances from which the jury may infer it. Proof 
 that J. N. was the father of the child will prove the intent stated in 
 the first count, because the natural consequence of taking the child 
 must be to deprive the father of its possession. The defendant ma^ 
 prove that he claimed to have a right to the possession of the child, 
 for such persons are specially exempted from the operation of this 
 section of the act. 24 & 25 Vict. c. 100, s. 56. 
 
704 Rape, etc. 
 
 Sect. 6. 
 
 RAPE, ETC. 
 
 KAVISHING ■WOMEN. 
 
 Statute. 
 
 24 & 25 Vict. c. 100, s. 48.]— Whosoever shall be convicted of the 
 crime of rape shall be guilty of felony, and .being convicted thereof 
 shall be liable, at the discretion of the court, to be kept in penal ser- 
 vitude for life, or for any term not less than three years \mwjke 
 years, 27 & 28 Vict. c. 47, s. 2, ante, p. 173], or to be imprisoned for 
 any term not exceeding two years, with or without hard labour. 
 
 Sect. 63 — Carnal Knowledge defined.'] — Whenever, upon the trial 
 for any oflFence punishable under this act, it may be necessary to 
 prove carnal knowledge it shall not be necessary to prove the actual 
 emission of seed in order to constitute a carnal knowledge, but the 
 carnal knowledge shall be deemed complete upon proof of penetra- 
 tion only. 
 
 Indictment. 
 
 Central Criminal Court, to wit : — The jurors for our lady the Queen 
 upon their oath present, that J. S., on the first day of June, in the 
 year of our Lord , in and upon one A. N. violently and feloni- 
 ously did make an assault, and her the said A. N. then violently and 
 against her will feloniously did ravish and carnally know ; against 
 the form [as ante, p. 347]. An indictment is good which charges that 
 A. committed a rape, and that B. was present aiding and abetting 
 him in the commission of the fetorry ; for the party aiding may be 
 charged either as, as he was in law, aprincipal in the first degree, or, 
 as he was in fact, a principal in the second degree. S. v Crishami 
 C. S^ Mar. 187. A general conviction of a defendant charged both 
 as principal in the first degree, and as an aider and abettor of other 
 men in rape, is valid on the count charging him as principal. And on 
 such an indictment, evidence may he given of several rapes on the 
 same woman, at the same time, by the defendant and other men, each 
 assisting the other in turn, without putting the prosecutor to elect on 
 which count to proceed. R. v. Folhes, 1 Mood. C. C. 354 : R. i. 
 Gray, 7 C. Sf P. 164. 
 
 An indictment charging, that the defendant in and upon A. B. 
 "feloniously and violently did mahe [omitting the words ' an assault'\ 
 and her the said A B. then and there, against her will, violently and 
 feloniously did ravish and carnally know, etc-, was held sufficient in 
 arrest of judgment. R v. Allen, 2 Mood. C C. 179; 9 C.ScP. 521. 
 The omission of the " camaliter cognovit" makes the indictment bad 
 on demurrer, but, as it seems, not after verdict. R. v. Warren, 1 
 Russ. 686. 
 
 Felony : penal servitude for life or for not less than five [27 Sf 28 
 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment, with or vnth- 
 out hard labour, not exceeding two years, 24 Sj- 25 Vict. c. 100, s. 4H. 
 As to requiring the offender to enter into recoanizances and find 
 sureties for keeping the peace. Id. «. 71, ante, p. 619. 
 
Rape^ etc. 705 
 
 Tlds offence is not triable at quarter sessions. 5^6 Vict. e. 38, 
 s. 1 (ante, p. 104). 
 
 Evidence. 
 That J. S.} — If it be proved that the defendant is under the age 
 of fourteen years, he must be acquitted, whatever may be the nature 
 of the evidence against him; for a boy under the age of fourteen 
 years is presumed by law incapable to commit a rape; 1 Hale, 631; 
 and this presumption was not affected by the statute 9 G. 4, c. 31, s. 18, 
 of which the 24 d; 25 Vict. c. 100, s. 63, is a re-enactment. H. v. 
 Groomhridge, T C. <& P. 582. Nor is evidence admissible against 
 him, to show that in fact he has attained the full state of puberty, and 
 was capable of committing the crime. E. v. Philips, 8 C.d P. 736: 
 B. V. Jordan, 9 C. (& P. 118. A husband cannot be guilty of a rape 
 upon his wife. 1 Sale, 629. But both a husband and a boy under 
 fourteen may be principals in the second degree, and be punished 
 for being present aiding and abetting. Id. 620, 639. See R. v. El- 
 dershaw, 3 C. <& P. 396 (ante, p. 17). 
 
 The said A. N. violently and against her ibHI.']— It must be proved 
 that the rape was committed on A. N. by force and without her con- 
 sent. If however she jdelded through fear of death or duress, it is 
 rape. 1 Hawh. c. 41, s. 6. If the connexion took place when she 
 was in a state of insensibility from liquor, having been made drunk 
 by the prisoner (though the liquor was given only for the purpose 
 of exciting her), it is a rape. R. v. Gamplin, 1 Den. 89; 1 C. & K. 
 746. Or if the connexion was with a woman of weak intellect, inca- 
 pable of distinguishing right from wrong, and the jury found that 
 she was incapable of giving consent, or of exercising any judgment 
 upon the matter, and that (though she made no resistance) the de- 
 fendant had carnal knowledge of her bv force and without her consent, 
 that is a rape. R. v. FUtcher, Bell, 63" ; 28 L. J. (M. C.) 85 : see R. 
 V. Ryan, 2 Cox, 115. It has, however, recently been held that the 
 mere fact of connexion with an idiot girl incapable, so far as her 
 idiotcy rendered her so, of expressing dissent or consent, and there- 
 fore without her consent, is not sufficient evidence of rape to be left 
 to a jury. R. v. Fletcher, L. R., 1 C. C. R. 39; 35 L. J. (M. C.) 172. 
 Where the prosecutrix, an apparent idiot, proved that the prisoner 
 had had connexion with her, but it appeared from her examination 
 that although she knew he was doing wrong, she made no resistance, 
 and the prisoner on being apprehended and charged with committing 
 a rape upon the prosecutrix "against her will," said "yes, I did; 
 and I'm very sorry for it," it was held that there was evidence to go 
 to the jury of a rape. R. v. Pressy, 10 Cox, 636. And it is no ex- 
 cuse that the woman consented at first, if the offence was afterwards 
 committed by force or against her will ; nor is it any excuse that she 
 consented after the fact. 1 Hawh. u. 41, s. 7. Even that the woman 
 was a common strumpet, or the concubine of the ravisher, is no 
 excuse ; 1 Hale, 729 ; although such circumstances should certainly 
 operate strongly with the jury as to the probability of the fact that 
 connexion was had with the woman against her consent. 
 
 Having carnal knowledge of a woman, by a fraud which induces 
 her to suppose it is her husband, does not amount to a rape. R. v. 
 Jackson, R. & R. 487: R. v. Saunders, 8 C. S P. 265: R. v. Williams, 
 Id. 286: R. v. Stanton, I C. & K. 415: R. v. Clarke, Dears. 397; 24 
 L. J. (M. C.) 25: R. v. Barrow, L. R., 1 C. C. R. 156; 38 L. J. 
 
 H H 5 
 
706 Rape, etc. 
 
 (M. C) 20. But there can be no doubt that the party is liable in 
 such case to be indicted for an assault. R. v. Saunders, R. v. Wil- 
 liams, ante, p. 705. And where a medical man had connexion with 
 a girl of fourteen years of age, under the pretence that he was thereby 
 treating her medically for the complaint for which he was attending 
 her, and she made no resistance, owing solely to the bona fde belief 
 that such was the case, this was held to be certainly an assault, and, 
 as it seems, a rape. R. v. Case, 1 Den. 580; 19 L. J. (M. C.) 174. 
 
 The party ravished is a competent witness to prove this and every 
 other part of the case; but the credibility of her testimony, and how 
 far she is to be believed, must be left to the jury, upon the circum- 
 stances of fact that concur in her testimony. For instance, if the 
 witness be of good fame; if she presently discovered the offence, and 
 made search for the offender; if the party accused fled for it; these 
 and the like are concurring circumstances, which give greater proba- 
 bility to her evidence. But, on the other hand, if she be of evil fame, 
 and stand unsupported by the testimony of others ; if she concealed 
 the injury for any considerable time after she had opportunity to 
 complain : if the place where the fact was alleged to have been com- 
 mitted were such that it was possible she might have been heard, 
 and she made no outcry; these and the like circumstances carry a 
 strong but not conclusive presumption that her testimony is false or 
 feigned. 4 Bl. Com. 213. And the defendant may give evidence of 
 the woman's notoriously bad character for want of chastity or com- 
 mon decency ; or that she had before been connected with the pri- 
 soner himself ; but he cannot give evidence of any other particular 
 facts to impeach her chastity. R. v. Hodgson, R. & R-iW: R. v. 
 Clarke, 2 Sta/rh. 243: R. v. Barher, 3 C. <& P. 589: R. v. Martin, 6 
 C. & P. 562. The prosecutrix may on cross-examination be asked 
 whether she has had connexion with men other than the prisoner, but 
 she may decline to answer the question. R. v. Cochcroft, 11 Goai,410, 
 pefT Willes, J. Whether she can so decline, however, seems doubtful, 
 see Cimdell v. Pratt, and other cases, cited ante,p. 280. If, on cross-ex- 
 amination, she deny having had intercourse with other men than the 
 prisoner, it has been held that those men may be called to contradict 
 her. R.V.Robins, 2 M.C& Rob. 512. Willes, J., ani Martin, K,ha,ve 
 however very recently held that, although the prosecutrix may be 
 cross-examined as to particular acts of connexion with other men, the 
 cross-examining party is bound by her answer if she denies them, and 
 cannot call the men to contradict her. R. v. Cochcroft, 11 Cox, 410. 
 So, what she herself said so recently after the fact as to preclude the 
 possibility of her being practised on, has been holden to be admis- 
 sible in evidence as a part of the transaction ; but the particulars of 
 her complaint are not evidence of the truth of her statement ; R. v. 
 Brazier, 1 East, P. C. 444 : R. v. Clarhe, 2 Starh. 241: R. v. Megscm, 
 9 C.& P. 420: R. v. Guttridge, Id. 471 : R. v. Nicholas, 2C.&K.' 
 246 ; and cannot be asked in her examination in chief or proved by 
 other testimony; and though she may be asked whether she named 
 a person as having committed the offence, it has been ruled that she 
 cannot be asked whose name was mentioned. R. v. Osborne, C. & 
 Mar. 622. But the soundness of this rule has been questioned. Se« 
 R. V. Walker, 2M.& Rob. 212. 
 
 Did ravish and carnally know.'] — To constitute the offence of rape, 
 there must be a penetration. R. v. Mill, 1 East, P. C. 439. But any, 
 the slightest, penetration will be sufficient. Where a penetration 
 was proved, but not of such a depth as to injure the hymen, still it 
 
Eape, etc. 707 
 
 was holden to be sufficient to constitute the crime of rape. R. v. 
 Xussm, 1 East, P. C. 438, 439; see R. v. WRue, S C. <& P. 641. In 
 one case, however, where it appeared that the hymen was not rup- 
 tured, Ourney, B., ruled that the penetration was not sufficient to 
 constitute the offence; R. v. Gammon, h C. & P. 321 : but that case 
 has since been expressly overruled. R. v. Hughes, 2 Mood. C. C. 
 190; 9 G <fc P. 752 ; see also R. v. Lines, 1 C. & K. 393. 
 
 Before the statute 9 G. 4, c. 31, s. 18 (re-enacted in the 24 tfc 25 
 Vict. c. 100, s. 63), it was also necessary to prove emission, which 
 might be proved either positively, by the evidence of tlie woman that 
 she felt it ; or it might be presumed from circumstances, as, for in- 
 stance, that the defendant, after having connexion with the prose- 
 cutrix, arose from her voluntarily, without being interrupted in the 
 act. R. V. Harmwood, 1 East, P. C. 440 : R. v. Sheridan, Id. 438 : 
 R. V. Burrows, R. & R. 619. The above statute rendered it unneces- 
 sary to prove the actual emission of seed, in order to constitute a 
 carnal knowledge ; and provided that the carnal knowledge shall be 
 deemed complete upon proof of penetration only. And it has been 
 held that even though the jury negative the emission, or the circum- 
 stances be proved to have been such as that no emission did or could 
 take place, the offence is complete if the penetration be proved. R. 
 V. Chx, 1 Mood, a C. 337 ; 5 G. & P. 297 : R. v. Reckspear, 1 Mood. 
 a C. 342 : R. v. AlUn, 9 C. <& P. 31. 
 
 If actual penetration be not proved, the defendant may nevertheless, 
 on this indictment, be convicted of an attempt to commit a rape. 14 
 <& 15 Vict. c. 100, s. 9, ante,p. 164. And where an indictment charged 
 H. with rape, and W. as an aider and abettor, and the jury found H. 
 guilty of attempting to commit a rape and W. of aiding H. in the 
 attempt, and it was contended that this finding amounted to an ac- 
 quittal of W., as the case was not within s. 9 of 14 t6 15 Vict. c. 100, 
 the objection was overruled and the conviction of W. for misde- 
 meanor was affirmed. R. v. Bapgood, L. R., 1 C. C. R. 221 : R. v. 
 Wyatt, 39 L. J. (M. C.) 83, S. C. After an acquittal upon an indict- 
 ment for rape, it seems that the prisoner may be indicted for a 
 common assault. R. v. Dungey, i F. & F. 99. 
 
 PEOCtlEING THE DEFILEMENT OF A WOMAN OR GIRL UNDER 
 TWENTY-ONE YEARS OF AGE. 
 
 Statute. 
 
 24 (§ 25 Vict. c. 100, «. 49.] — Whosoever shalJ, by false pretences, 
 false representations or other fraudulent means, procure any woman 
 or girl under the age of twenty-one years to have illicit carnal con- 
 nexion with any man, shall be guilty of a misdemeanor, and being 
 convicted thereof shall be liable, at the discretion of the court, 
 to be imprisoned for any term not exceeding two years, with or 
 without hard labour. 
 
 Indictment. 
 Middlesex, to wit : — The jurors for our lady the Queen upon their 
 oath present, that J. S., on the first day of June, in the year of our 
 
''08 Bape, etc. 
 
 Lord , by falsely pretending and representing unto one J. N., that 
 
 [here set out the false pretences or representations; the words in the 
 statute a/re ^^ false pretences, false representations, or other fraudulent 
 Tneojns"'], did procure the said J. N. to have illicit carnal connexion 
 
 ■with a certain man named [or to the jurors aforesaid unknown], 
 
 she the said J. N., at the time of such procurement, being then a 
 woman [or child] under the age of twenty-one years, to wit, of the 
 
 age of : whereas, in truth and in fact [negativing the pretences or 
 
 representations'] ■ against the form [as ante, p. 347]. It would seem 
 that the false pretences or representations must he specially negatived, in 
 the same manner as in the case of obtaining money or goods v/nder false 
 pretences. See R. v. Hears, 2 Den. 79; 20 L. J. {M. C.) 59, for the 
 form of a count for a conspiracy to commit this offence. 
 
 Misdemeamor : imprisonment, with or without hard Jabow, not ex- 
 ceeding two years. 24 & 25 Vict. c. 100, s. 49. As to fining the 
 offender and requiring him to enter into recognizances and find sureties 
 for keeping the peace and being of good behaviour, Id. s. 71, cmte, p. 
 ol9. 
 
 Eoidence. 
 
 Prove the pretences or representations made by the defendant to 
 J. N., and their falsehood (see ante,p. 480 etseq.). Prove, also, that by 
 means of these false pretences or representations (or by the other 
 fraudulent means stated), the defendant induced J. N. to have carnal 
 connexion with the man named in the indictment ; and that she was 
 then under twenty-one years of age. 
 
 CARNALLY ABUSING CHILDREN. 
 
 Statute. 
 
 24 <& 25 Vict. c. 100, g. 50.] — Whosoever shall unlawfiilly and car- 
 nally know and abuse any girl under the age of ten years shall be 
 guilty of felony, and being convicted thereof shall be liable, at the 
 discretion of the court, to be kept in penal servitude for life or for 
 any term not less than three years [now five years, 27 & 28 Vict. c. 
 47, s. 2, ante, p. 173], or to be imprisoned for any term not exceeding 
 two years, with or without hard labour. 
 
 Sext. 51.] — ^Whosoever shall unlawfully and carnally know and 
 abuse any girl being above the age of ten years and under the age 
 of twelve years shall be guilty of a misdemeanor, and being convicted 
 thereof shall be liable, at the discretion of the court, to be kept in 
 penal servitude for the term of three years [now five years, 27 d; 28 
 Vict. c. 47, s. 2, ante, p. 173], or to be imprisoned for any term not 
 exceeding two years, with or without hard labour. 
 
 Indictment for carnally abusing a Cfirl under Ten Years. 
 
 Commencement as ante,p. 704]— in and upon one A. N., a girl under 
 the age of ten years, to wit, of the age of nine years, feloniously did 
 make an assault, and her the said J. N. then feloniously did unlaw- 
 fiilly and carnally know and abuse; against the form [as ante, p. 347]. 
 
709 
 
 The indictment is sufficient if it contains tJie words " carnally Jcrww," 
 without the word " abuse." R. v. Mollamd, 10 Cox, 478. 
 
 Felony : penal servitude for life or for not less than fioe [27 S 28 
 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment, with or without 
 hard labour, not exceeding two years. 24 <& 25 Vict. c. 100, «. 60. As 
 to requiring the offender to enter into recognizances and find sureties 
 for keeping the peace. Id. s. 71, ante, p. 619. 
 
 This offence is not triable at quarter sessions. 5 <£ 6 Vict. c. 38, s. 1 
 (ante, p. 104). 
 
 Eoidence. 
 
 The evidence is the same as in rape, with this exception, that it 
 is immaterial whether the act was done with or without the consent 
 of the female. So where the prisoner was indicted for an attempt to 
 commit the felony, and the evidence was that he had attempted to 
 have carnal knowledge of the girl, but that she had consented to the 
 attempt, it was held that the fact of her consent was immaterial, and 
 that the prisoner was properly convicted. R. v. Beale, L. R., 1 
 C. a B. 10; 35 L. J. {M. C.) 60. The child may be a witness, if 
 she appear sufficiently to understand the nature and moral obligation 
 of an oath. (See ante, p. 270.) She must be proved to have been 
 under ten years of age when the offence was committed. Where the 
 offence was committed on the 5th of February, 1842, and the child's 
 father proved that on his return home, after an absence of a few days, 
 on the 9th of February, 1832, he found the child had been born, and 
 was told by the grandmother that she had been born the day before, 
 and the register of baptism showed that the child had been baptized 
 on the 9th of February, 1832 ; this evidence was holden not suffi- 
 cient to prove the age of the child. R. v. Wedge, b C. & P. 298. 
 See R. V. Nicholls, 10 Cox, 476, irfra. 
 
 Indictment for ca/mally hnowing and abusing a (Jirl above Ten and 
 under Twelve Years. 
 
 Commencement as ante, p. 704] — in and upon one A. N., a girl 
 above the age of ten years and under the age of twelve years, to wit, 
 of the age of eleven years, unlawfully did make an assault, and her 
 the said A. N. did then unlawfully and carnally know and abuse ; 
 against the form [as ante, p. 347]. The indictment is sufficient if it 
 contains the wwds "carnally know," without the word "abuse." 
 R. V. Holland, 10 Cox, 478. 
 
 Misdemeanor : penal servitude for five [27 Sc 28 Vix:t. u. 47, s. 2, 
 ante, p. 173] years, or imprisonment, with or without hard labour, 
 not exceeding two years. 24 ^ 25 Vict. c. 100, « 51. As to fining 
 the offender and requiring him to enter into recognizances and find 
 sureties for keeping the peace and being of good behaviour, Id. s. 71, 
 ante, p. 619. 
 
 Evidence. 
 
 The evidence is the same as in rape, with this exception, that it 
 will be no defence that the girl consented. If she did not consent it 
 will be a rape, and the defendant may be indicted accordingly {amte, 
 p. 704) : but the fact of non-consent is no defence to an indictment 
 for this offence. R. v. Neale, 1 Den. 36 ; 1 C. <& K. 591. The child 
 must be proved to be above the age of ten years and under the age 
 of twelve years. Where the mother of the child stated that she was 
 ten years of age last March, although on cross-examination it ap- 
 
710 Rape, etc. 
 
 peared that the witness knew neither the year nor the month of thS 
 child's birth, and she also gave confused and inconsistent answers as 
 to the ages of her children, it was held that there was evidence to 
 go to the jury of the age of the child. R. v. Nicholls, 10 Cox, 476. 
 
 On an indictment for either of the offences mentioned in these two 
 sections (60, 51), the defendant may (whether the girl consented or 
 not, R. V. Beale, L. R., 1 C. C. R. 10 ; 35 L. J. (iK. C.) 60: R. v. 
 Ryland, 11 Cox, 101, be convicted of an attempt to commit the felony 
 or misdemeanor charged, if the facts proved warrant such a finding; 
 14 & 15 Vict. c. 100, s. 9, ante, p. 164 ; and may have sentence of 
 imprisonment with hard labour. Infra. But on an indictment for 
 the statutable misdemeanor, the defendant cannot, if the girl's age 
 be proved to be under ten years, be convicted ; for the stat. 14 <& 15 
 Vict. c. 100, s. 12, applies only where the indictment is 'proved by 
 facts amounting to a felony. R. v. Shott, S C. & K. 206 ; ante, p. 73. 
 
 If upon the trial of an indictment framed as above the offence of 
 carnally knowing and abusing be disproved, the defendant may 
 nevertheless be found guilty of a common assault, if the facts proved 
 warrant such a verdict. R. v. Cfuthrie, L. R., 1 C. C. R. 241 ; 39 
 L. J. (_M. C.) 95, 
 
 INDECENT ASSAULT, ETC. 
 
 Statute. 
 24 & 25 Vict. c. 100, s. 52.] — Whosoever shall be convicted of any 
 indecent assault upon any female, or of any attempt to have carnal 
 knowledge of any girl under twelve years of age, shall be liable, at 
 the discretion of the court, to be imprisoned for any term not ex- 
 ceeding two years, with or without hard labour. 
 
 Indictment. 
 
 Commencement as ante, p. 704] — one A. N. unlawfully and inde- 
 cently did assault, and her the said A. N. did then beat, wound and 
 ill-treat, and other wrongs to the said A. N. did, to the great damage 
 of the said A. N. ; against the form [as ante, p. 347]. 
 
 No indictment can be preferred for any indecent assault unless one 
 or other of the preliminary steps required ln/22Si-23 Vict. c. 17, ». 1, 
 has been taken, see ante, p. 4. 
 
 Misdemeanor : imprisonment, with or without hard labour, not ex- 
 ceeding two years. 24 Sf 25 Vict. c. 100, s. 52. As to fining the 
 offender and requiring him to enter into recognizances and find 
 sureties for keeping the peace and being of good behaviour, Id. s. 71, 
 ante, p. 619. 
 
 Evidence. 
 
 Prove an assault, accompanied with circumstances of indecency on 
 the part of the defendant. Any attempt to have carnal knowledge 
 of a girl under twelve years of age, even with her consent, is subject 
 to the same punishment. Where, however, the defendant is indicted 
 merely for an indecent assault, and it appears that the girl, although 
 under twelve, assented, the defendant must be acquitted. R. v. Read, 
 2C.&K. 957 : R. v. Johnson,_ L. & C. 632 ; 34 L. J. (M. C.) 192. 
 If on an indictment for an indecent assault it appears that the 
 
Attempts to procure Ahortion, 711 
 
 woman consented to the assault, but that her consent was procured 
 by fraud, such consent constitutes no defence. R. v. Case, 1 Den. 
 580; 19 L. J. (if. C.) 174: S. v. Bennett, i F. <& F. 1105; and see 
 ante, pp. 658, 659. 
 
 Sect. 7. 
 attempts to pe0ct7re abortion. 
 
 Statute. 
 24 <& 25 Vict. c. 100, s. 58.] — Every woman, being with child, who, 
 with intent to procure her own miscarriage, shall unlawfully admi- 
 nister to herself any poison or other noxious thing, or shall unlaw- 
 fully use any instrument or other means whatsoever with the like 
 intent, and whosoever, with intent to procure the miscarriage of any 
 woman, whether she be or be not with child, shall unlawfully admi- 
 nister to her or cause to be taken by her any poison or other noxious 
 thing, or shall unlawfully use any instrument or other means what- 
 soever with the like intent, shall be guilty of felony, and being 
 convicted thereof shall be liable, at the discretion of the court, to be 
 kept in penal servitude for life, or for any term not less than three 
 years [now Jive years, 27 (& 28 Vict. c. 47, s. 2, ante, p. 173], or to be 
 imprisoned for any term not exceeding two years, with or without 
 hard labour, and with or without solitary confinement. 
 
 Sect. 59.] — Whosoever shall unlawfully supply or procure any 
 poison or other noxious thing, or any instrument or thing whatso- 
 ever, knowing that the same is intended to be unlawfully used or 
 employed with intent to procure the miscai-riage of any woman, 
 whether she be or be not with child, shall be guilty of a misde- 
 meanor, and being convicted thereof shall be liable, at the discretion 
 of the court, to be kept in penal servitude for the term of three years 
 [now Jive years, 27 (& 28 Vict. c. 47, s. 2, cmte, p. 173], or to be im- 
 prisoned for any term not exceeding two years, with or without hard 
 labour. 
 
 Indictment for administering Poison to procure Miscarriage. 
 
 Surrey, to wit : — The jurors for our lady the Queen upon their 
 oath present, that J. S., on the first day of June, in the year of our 
 
 Lord , feloniously and unlawfully did administer to and cause to 
 
 be taken by one A. N. (" administer to her or cause to be taken by 
 her ") a large quantity, to wit, two ounces, of a certain noxious thing 
 called savin Q'poison or other noxious thing"), with intent thereby 
 then to procure the miscarriage of the said A. N. ; against the form 
 [as amte,p. 347]. If there be any doubt as to the drug administered, 
 it may be prudent, perhaps, to state it in different ways, in several 
 counts, and add a count stating it to be ^^ s. certain noxious thing to 
 the jurors aforesaid unknown." 
 
 Felony: penal servitude for life or for not less tlianfive [27 Sf 28 
 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment not exceeding two 
 years, with or without hard labour, and with or without solitary con- 
 finement (such confinement not exceeding one month at any one time, 
 nor three months in any one yeqr, 24 ^ 25 Vict. c. 100, s. 70, ante, 
 
712 A ttempts to procure A bortion. 
 
 p. 619) —24 Sf 25 Vict, e. 100, s. 58. An to requiring the offender to 
 enter into recognizances and find sureties for keeping the peace, Id. 
 s. 71, ante, p. 619. 
 
 This offence is not triable at quarter sessions. 5 Sf 6 Vict. c. 38 s. 1 
 (ante, p. 104). 
 
 Evidence. 
 
 To support this indictment it must be proved : — 
 
 1. That the defendant administered to or caused to be taken by 
 
 A. N., the poison, etc., mentioned in the indictment ; or, perhaps, 
 proof of any other substance or thing ejusdem generis would be suffi- 
 cient. S. V. Phillips, 3 Camp. 74 : R. v. Coe, GC.t&P. 403. Where 
 the defendant gave the prosecutrix a cake containing poison, which 
 she merely put into her mouth and spit out again, and did not 
 swallow any part of it, it was holden that the mere delivery to the 
 woman did not constitute an administering within the meaning of 
 the statute ; although the judges seemed to think that swallowing it 
 was not essential. B. v. Cadman, 1 Mood. C. C. 114. But it is not 
 necessary that there should be an actual delivery by the hand of the 
 defendant. B. v. Harley, 4t C. d; P. 369. Where the prisoner gave 
 the prosecutrix the drug for the purpose of procuring abortion, and 
 the prosecutrix took it for that purpose in the prisoner's absence, 
 this was held to be a causing of it to be taken within the statute. 
 
 B. V. Wilson, Dears. & B. 127; 26 L. J. {M. C.) 18 : B. v. Farrow, 
 Dears. & B. 164. It is not sufficient that the defendant merely 
 imagined that the thing administered would have the effect intended ; 
 but it must also appear that the drug administered was either a 
 " poison " or a " noxious thing." 
 
 2. It must be proved that the drug in question was administered 
 with intent to procure the miscarriage of A. N. Whether it were, 
 in fact, a drug likely or calculated to produce that effect seems to 
 be immaterial, provided the intent be proved, and the drug were a 
 " poison " or " other noxious thing." 
 
 3. The statutes 43 G. 3, c. 68, and 9 G. 4, c. 31, «. 14, contained 
 provisions applicable to women quick and not quick with chUd, and 
 so clearly showed that, to constitute an offence within those acts, the 
 woman must have been pregnant at the time. Bee B. v. Souddeir, 
 1 Mood. C. C 216; 3 C. & P. 605. But in this act these provisions 
 are omitted, and the offence is to procure the miscarriage of " any 
 woman, whether she be or be not with child." See B. v. Goodhall, 
 1 Den. 187; 1 C. & K. 293. The present act also applies equally 
 (the repealed statutes did not) to acts done by the woman herself, 
 for the pui-pose of procuring her miscarriage, as to acts done by any 
 other person. 
 
 Indictment for using Instruments to procure Miscarriage. 
 
 Commencement as in the last precedent"] — feloniously and unlawfully 
 did use a certain instrument (" any instrument or other means whatso- 
 ever") called a , by then [state the mode of using the instrumenf], 
 
 with intent, etc. {as in the last precedent']. 
 
 Felony: 24 Sj- 25 Vict. c. 100, s. 68. See the last precedent. 
 
 This offence is not triable at quarter sessions. 5^6 Vict. c. 38, 
 *. 1 {ante, p. 104). 
 
Attempts to procure A bortion. 713 
 
 Evidence. 
 
 The evidence will be the same as in the last ease, with this excep- 
 tion, that instead of proving the administering of the poison, etc., it 
 must he proved that the defendant used the instrument mentioned in 
 the manner described in the indictment. 
 
 Indictment for procv/ring Poison for thepwpose of its being used to 
 cause Miscarriage. 
 
 Commencement as ante, p. 1111 — unlawfully did procure (^'supply 
 or procure") a large quantity, to wit, two ounces, of a certain noxious 
 thing called savin, he the said J. S., then well knowing that the same 
 was then intended to be unlawfully used and employed with intent 
 to procure the miscarriage of one A. N.; against the form [as amte, 
 p. 347]. 
 
 Misdemeanor : penal servitude for five [27 Sf 28 Vict. c. 47, s. 2, 
 ante, p. 173] years, or imprisonment, with or without hard labour, not 
 exceeding two years. 24 ^ 25 Vict, c: 100, s. 59. As to fining the 
 offender, and requiring him to enter into recognizances and find sureties 
 for keeping the peace and being of good behaviour, Id. s. 71, ante, 
 p. 619. 
 
 Evidence. 
 
 In order to constitute the offence of supplying a noxious thing, 
 knowing that the same was intended to be used with intent to pro- 
 cure a miscarriage, the drug supplied must be of a noxious character ; 
 and it is not sufficient that, being harmless in itself, it might, if 
 taken under a belief that it would procure miscarriage, produce that 
 result by its mere action on the imagination. R. v. Isaacs, L. & 
 a 220; 32 L. J. (M. C.) 62. If the drug supplied by the defendant 
 be noxious, and be supplied with intent to procure miscarriage, the 
 offence is complete, although the woman herself may not have in- 
 tended to use the drug, and although no other person than the 
 defendant may have intended that it should be used for the purpose 
 of causing a miscarriage. B. v. EilJman, L. & C. 343; 33 L. J. 
 (M. C.) 60. 
 
 Sect. 8. 
 endeavouring to conceal the bieth op children. 
 
 Statute. 
 
 24 cfe 25 Viet. c. 100, s. 60.] — If any woman shall be delivered of a 
 child, eveiy person who shall, by any secret disposition of the dead 
 body of the said child, whether such child died before, at, or after its 
 birth, endeavour to conceal the birth thereof, shall be guilty of a 
 misdemeanor, and being convicted thereof shall be liable, at the dis- 
 cretion of the court, to be imprisoned for any term not exceeding 
 two years, with or without hard labour : Provided, that if any person 
 tried for the murder of any child shall be acquitted thereof, it shall 
 be lawful for the jury by whose verdict such person shall be ac- 
 
714 Concealing the Birth of Children. 
 
 quitted, to find, in case it shall so appear in evidence, that the child 
 had recently been born, and that such person did, by some secret 
 disposition of the dead body of such child, endeavour to conceal the 
 birth thereof ; and thereupon the court may pass such sentence as if 
 such person had been convicted upon an indictment for the conceal- 
 ment of the birth. 
 
 Indictment. 
 
 Yorkshire, to wit : — The jurors for our lady the Queen upon their 
 oath present, that A. S., on th^ first day of November, in the year of 
 
 our Lord , was delivered of a child ; and that the said A. S., 
 
 being so delivered of the said child as aforesaid, did then unlawfully 
 endeavour to conceal the birth of the said child, by secretly burying 
 (" ly any secret disposition of") the dead body of the said child ; 
 against the form \as ante, p. 347]. Add a count stating the means of 
 concealment specially, when it is otherwise than hy secret burying. An 
 indictment under the repealed act 9 6r. 4, c. 31, s. 14,ybr concealing 
 the birth " hy secretly disposing of the dead body," etc , without show- 
 ing the mode of disposing of it, was held bad. R. v. Hounsell, 2 M. 
 if Rob. 292. Where the indictment charged that the defendant cast 
 and threw the dead body of the child into the soil in a certain privy, 
 ^^ and did thereby then and there unlawfully dispose of the dead tody 
 of the said child, and endeavour to conceal the birth thereof," it was 
 held sufficient; the word "thereby" being referred as well to the 
 endeavour as to the disposing of the body. R. v. Coxhead, I C. Sf K. 
 623. The indictment need not state whether the child died before, at, 
 or after its birth. Id. 
 
 Misdemeanor: imprisonment, not exceeding two years, with or 
 without hard labour, 24 iSf 25 Vict. c. 100, s. 60. As to fining the 
 offender and requiring him to enter into recognizances and find 
 sureties for keeping the peace and being of good behaviour. Id. s. 71, 
 ante, p. 619. 
 
 This offence is not triable at quarter sessions. 5^6 Vict. c. 38, 
 s. 1 (ante, p. 104). 
 
 JEvidence. 
 
 Prove that the defendant was delivered of a child as stated in the 
 indictment; that the child was dead at the time of the secret dispo- 
 sition of its body; R. v. May, 10 Cox, 448; it is immaterial whether 
 it died before, at, or after its birth ; 24 c6 25 Vict. c. 100, s. 60; and 
 prove the concealment, etc., in the mode stated in the indictment. 
 A foetus not bigger than a man's finger, but having the shape of a 
 child, is a child within the statute. R. v. Calmer, 9 Cox, 506; but see 
 R. V. Hewitt, AF.&F. 1101. Upon the statute 21 J. 1, c. 27 (which 
 made the concealment of the birth of a bastard child in efiect con- 
 clusive evidence of the murder), if any person, even an accomplice, 
 were present at the time of the birth, R. v. Peat, 1 East, P. C. 229, 
 or if the mother called for help, or had previously confessed her 
 pregnancy. Id. 228, these circumstances were holden to negative the 
 concealment ; but where a woman delivered of a seven months' child, 
 threw it down the privy, and it appeared that another woman, 
 charged as an accomplice, knew of the birth; upon an indictment 
 for murder against the two, the jury found the mother guilty of the 
 concealment; and the point being saved upon a doubt whether it was 
 a case within the statute 43 O. 3, e. 58, as a second person knew of 
 
Concealing the Birth of Children. 715 
 
 the birth, the judges held that the act of throwing the child down 
 the privy was evidence of the endeavour to conceal the birth, and 
 that the conviction was right. R. v. Cornwall, E. di B. 336. Where 
 a woman was delivered of a child, the dead body of which was found 
 in a bed amongst the feathers, Ijut there was no evidence to show 
 who put it there, and it appeared that the mother had sent for a sur- 
 geon at the time of her confinement, and had prepared child's clothes, 
 the judge directed an acquittal of the charge for endeavouring to 
 conceal the birth. M. v. Sigley, 4r C. <& P. 366. But where the 
 mother caused the body of her child to be secretly buried, with a 
 view to conceal the birth, it was holden that she might be convicted 
 of the concealment, though she had previously allowed the birth to 
 be known to some persons. S. v. Douglas, 1 Mood. C. C. 480. On 
 the other hand, the denial of the birth only is not sufficient to con- 
 vict her; she must be proved to have done some act of disposal of 
 the body after the child was dead. M. v. Turner, S C. <& P. 755. It 
 had been ruled in several cases, that a final disposing of the body 
 must be shown, and that hiding it in a place from which a further 
 removal was contemplated, would not support the indictment. R. v. 
 Snell, iM.d Rob. 44: R. v. Ash, Id. 294: R. v. Bell, Id.; but those 
 cases are overruled by R. v. Goldthorpe, 2 Mood. C. C. 244 ; C. & 
 Mar. 335, and by R. v. Perry, Dears. 471; 24 L. J. {M. C.) 137, in 
 which it was holden by a majority of the judges, that the putting of 
 the dead body between a bed and the mattress, or under a bolster 
 on which the defendant laid her head, was a sufficient disposing 
 of it to constitute an offence within the statute. Where, however, 
 the prisoner had placed the body of her child in an open box in her 
 bedroom, Byles, J., although he left the case to the jury, intimated 
 to them his opinion , that there was no secret disposition of the dead 
 body, and the prisoner was acquitted. R. v. Sleep, 9 Cox, 559. So 
 also where the prisoner put the dead body of her child into a box, 
 and put this box into a larger box (neither of the boxes being locked 
 or fastened, although they were closed), and then placed the boxes 
 in a room much resorted to by the people in the house, and in such 
 a position as to attract attention, Bovill, C. J., directed the jury that 
 there was no secret disposition of the dead body. R. v. George, 11 
 Cox, 41. /Inhere the prisoner took the body out of the house and 
 placed it in a pinfold or pound, which was open to the sky, although^ 
 locked, and surrounded by a wall five feet high, along which there 
 was a public footway, Martin, B., lield that there was no secret dis- 
 position of the body. R. v. Nixon, ^ F. d; F. 1040, note (as). See 
 also R. V. Clarhe, Id. 1040. The most open exposure may however 
 be a secret disposition, as, for instance, in the middle of Dartmoor, 
 or on the top of a mountain in Scotland in winter. R. v. Brown, L. R., 
 1 C. C. R. 244; 39 L. J. (M. C.) 94, per Bovill, C. J. In that case 
 the following facts were held to be evidence to go to the jury of a 
 secret disposition of the dead body of a child. The prisoner put the 
 dead body of her child over a wall which was four and a half feet high 
 and divided a yard from a field. The yard was at the back of a 
 public-house, and entered from the street by a narrow passage. The 
 prisoner did not live at the public-house, and must have carried the 
 body from the street up the passage to the yard. The field was 
 grazed by the cattle of a butcher, and the only entrance to it was 
 through a gate leading from the butcher's own yard. There was no 
 f ath through the field, and a person in the field could only see the 
 
716 Sodomy. 
 
 body in case he went up to the wall, close against which the hody 
 lay. There was nothing on or over the body to conceal it. 
 
 Where the mother of a bastard child induced her paramour to take 
 away and bury the body, she remaining in bed, it was held that she 
 might be convicted under the 14th section, and he of aiding and 
 abetting her in the commission of the offence, under the 31st section 
 of the statute 9 G. 4, c. 31 {see now 24 tfe 25 Vict. c. 100, «. 67). B. 
 V. Bird, IC.&K. 817: R. v. Shelton, i C. & K. 119. But on an in- 
 dictment for murder, no one but the mother herself could be con- 
 victed of the concealment, under 9 G. 4, c. 31, s. 14. R. v. Wright, 
 9 C. <& P. 754. But the present enactment is more general in its 
 terms, and includes, in both branches of it, every person who shall, 
 by secret disposition of the dead body of a child, endeavour to con- 
 ceal its birth. The proviso extends to a trial on a coroner's inqui- 
 sition, as well as on a bill of indictment. R. v. Cole, 1 Leach, 1095; 
 Camp. 371 : R. v. Maynard, R. & R. 240. 
 
 Sect. 9. 
 
 SODOMY. 
 
 Statute. 
 
 24 & 25 Vict. c. 100, s. 61.] — Whosoever shall be convicted of the 
 abominable crime of buggery, committed either with mankind or 
 with any animal, shall be liable, at the discretion of the court, to be 
 kept in penal servitude for life or for any term not less than ten 
 years. 
 
 Sect. &i.']— Ante, p.lQL 
 
 Indictment for Sodomy. 
 
 Commencement as ante, p. 704] — in and upon one J. N. feloniously 
 did make an assault, and then feloniously, wickedly, and against the 
 order of nature, had a venereal affair with the said J. N., and then 
 feloniously carnally knew him the said J. N., and then feloniously, 
 wickedly, and against the order of nature, with the said J. N. did 
 commit and perpetrate that detestable and abominable crime of bug- 
 gery (not to be named among Christians) ; against the form [as 
 ante, p. 347] . 
 
 Felony : penal servitude for life or for not less than ten years. 24 <& 
 25 Vict. c. 100, s. 61. As to requiring the offender to enter into re- 
 cognizances and find su/reties for keeping the peace, Id. s. 71, ante, 
 p. 619. 
 
 This offence is not triable at quarter sessions. 5 c6 6 Vict. c. 38, «. 1 
 {ante, p. 104). 
 
 Evidence. 
 
 The evidence is the same as in rape {see ante, p. IQb et seq.), and 
 as in that case, penetration alone is sufficient to constitute the 
 offence. R. v. Rechspear,' 1 Mood. C. C. 342. There are, however, 
 two exceptions : \st, that it is not necessary to prove the offence to 
 have been committed against the consent of the person upon whom 
 
Sodomy. 717 
 
 it was perpetrated ; and 2ndly, both agent and patient (if consent- 
 ing) are equally guilty. In R. v. Wiseman, Fortesc. 91, where the 
 defendant was indicted for having conimitted this offence with a 
 ■woman, a majority of the judges held that this was within the statute, 
 hut two or three of them held that it was not ; no opinion was pub- 
 licly given. See B. v. Jellyman, 8 C. <& P. 604, If it be committed 
 on a boy under fourteen years of age, it is felony in the agent only; 
 1 Hale, 670; 3 Inst. 59 (and the same, it should seem, as to a girl 
 under twelve) ; if 6y a boy under fourteen, in the patient only; B. v. 
 Allm, 1 Den. 364; 2 C. d K. 869; 18 L. J. {M. C.) 72. 
 
 Where the defendant forced open a child's mouth, and put in his 
 private parts, and proceeded to the completion of his lust, the judges 
 were of opinion that this did not constitute the offence of sodomy. 
 B. V. Jacobs, R. & B. 231 ; 1 Buss. 698. If the evidence fail to make 
 out the entire charge against the defendant, he may nevertheless be 
 convicted of the attempt to commit the felony charged, 14 d 15 Vict. 
 c. 100, s. 9 ((mfe,p.l64). 
 
 Indictment for Bestiality.. 
 
 Commencement as ante, p. 704]— with a certain cow (" any animaV) 
 feloniously, wickedly, and against the order of nature, had a venereal 
 affair, and then feloniously, wickedly, and against the order of nature, 
 cai'nally knew the said cow; and then feloniously, wickedly, and 
 against the order of nature, with the said cow did commit and per- 
 petrate that detestable and abominable crime of buggery (not to be 
 named among Christians) ; against the form [as ante, p. 347] The 
 animal was held to he described with sufficient certainty as a" certain 
 bitch," although the females of foxes and some other animals are de- 
 signated bitches, as well as the females of dogs. B. v. Allen, i. C. Sf 
 K. 495. 
 
 Felony : 24 Sc 25 Vict. c. 100, o. 61. See the last precedent. The 
 carnal knowledge is proved in tlie saine manner as in rape or sodomy. 
 (See ante, p 706.) The defendant may upon this indictment be con- 
 victed of an attempt to commit the felony charged, if the evidence 
 warrant such finding. 14 Sg 15 Vict. c. 100, s. 9 {ante, p. 164) An 
 indictment for an attempt to commit this offence may readily be 
 framed from this and the next precedent. It is punishable in the 
 same manner as the attempt to commit sodomy. See R. v . Mulreaty, 
 1 Buss. 699. 
 
 This offence is not triable at quarter sessions, o Sf Q Vict. c. 38, 
 s. 1 (ante, p. 104). 
 
 ASSAULT WITH INTENT TO COMMIT SODOMY. 
 
 Statute. 
 
 24 & 25 Vict. c. 100, s. 62.] — Whosoever shall attempt to commit 
 the said abominable crime, or shall be guilty of any assault with in- 
 tent to commit the same, or of any indecent assault upon any male 
 person, shall be guilty of a misdemeanor, and being convicted thereof 
 shall be liable, at the discretion of the court, to be kept in penal 
 servitude for any term not exceeding ten years and not less than 
 
718 Sodomy. 
 
 three years \nowfive years, 27 cE 28 Vict. c. 47, s. 2, anie, p. 173], or 
 to be imprisoned for any term not exceeding two years, with or 
 without hard labour. 
 
 Indictment. 
 
 Commencement as ante, p. 704]^— in and upon one J. N. did make 
 an assault, and him the said J. N. did then beat, wound, and ill- 
 treat, with intent that detestable and abominable crime (not to be 
 named among Christians) called buggery, with the said J. N., felo- 
 niously, wickedly, diabolically, and against the order of nature, to 
 commit and perpetrate; against the form [as ante, p. 347]. 
 
 If the indictment be for an indecent assault, one or other of the pre- 
 liminary steps, required by 22 ^ 23 Vict. c. 17, s. 1, must be taken, 
 see ante, p. 4. 
 
 Misdemeanor : penal servitude for not more than ten and not lest 
 than five [27 ^ 28 Vict. c. 47, s. 2, ante, p. 17.3] years, or imprison- 
 ment, with or without hard labour, not exceeding two years. 24 4' 
 25 Vict. c. 100, s. 02. As to fining the offender and requiring him 
 to enter into recognizances and find sureties for keeping the peace and 
 being of good behaviour. Id. s. 71, ante, p. 619. 
 
 Evidence. 
 
 Prove an attempt to commit sodomy, the offence being incomplete 
 for want of evidence of penetration. If the complete offence of 
 sodomy be proved, it seems that the defendant will not be entitled 
 to be acquitted; but the judge may, if he think fit, discharge the 
 jury, and direct the defendant to be indicted for the felony. 14 ti 15 
 Vict. c. 100, s. 12 (amte, p. 164). 
 
 An indictment against two persons, which chax-ged that they, being 
 persons of wicked and unnatural dispositions, did in a certain open 
 and public place unlawfully meet together, with the intent of com- 
 mitting with each other, openly, lewdly, and indecently, in the said 
 public place, divers nasty, wicked, filthy, lewd, beastly, unnatural, 
 and sodomitical practices, and then and there unlawfully, wickedly, 
 openly, lewdly, and indecently did commit with each other, in the 
 sight and view of divers liege subjects, etc., divers such practices as 
 aforesaid, etc., was held bad in arrest of judgment for want of cer- 
 tainty. R. V. Bowed, 3 Q. B. 180; 2G.&D. 518; 11 L. J. (if. C.) 
 74. 
 
( 719 ) 
 
 PART II. 
 
 OFFENCES OF A PUBLIC MTUEE. 
 
 CHAPTER I. 
 
 OFFENCES AGAINST THE QUEEN AND HEK GOVEENMENT. 
 
 Sect. 1. High Treason, p. 719. 
 
 2. Feloniously compassing to levy War, etc., p. 730. 
 
 3. Attempts to injure or alarm the Queen, p. 733. 
 
 4. Offences against the Foreign Enlistment Act,^. 735. 
 
 5. Coining, p. 740. 
 
 6. Sedition and Blasphemy, p. 766. 
 
 7. Ad/ministering Unlawful Oaths, p. 778. 
 
 8. Inciting to Mutiny, p. 783. 
 
 9. Illegal Training and Drilling, p. 785. 
 
 10. Unlawful Possession, do., of Naval Stores, p. 787. 
 
 11. Unlawful Possession, &c., of War Department Stores, p. 789. 
 
 12. Concealment of Treasure Trove, p. 794. 
 
 Sect. 1. 
 high treason. 
 
 Statutes. 
 25 Edw. 3, St. 5, c. 2 — Declaration of Treasons.']— Itzm, whereas 
 divers opinions have been before this time in which case treason shall 
 be said, and in what not; the King, at the request of the lords and of 
 the commons, hath made a declaration in the manner as hereafter 
 foUoweth; that is to say, when a man doth compass or imagine the 
 death of our lord the King, or of our lady the Queen, or of their 
 eldest son and heir; or if a man do violate the King's companion, or 
 the King's eldest daughter unmarried, or the wife of the King's eldest 
 son and heir; or if a man do levy war against our lord the King, in 
 his realm, or be adherent to the King's enemies in his realm, giving 
 them aid and comfort in the realm or elsewhere, and thereof be pro- 
 bably Q'provablement") attainted of open deed by people of their 
 
 condition . _ And because that many other like cases of treason 
 
 may happen in time to come, which a man cannot think or declare at 
 this present time, it is accorded, that if any other case, supposed 
 treason, which is not above specified, shall happen before any jus- 
 tices, the justices shall tarry, without any going to judgment of 
 the treason, till the cause be shown and declared before the King, 
 and his parliament, whether it ought to be judged treason or other 
 felony. 
 
720 High Treason. 
 
 36 G. 3, c. 7, s. 1.] — Enacts, that if any person or persons whatso- 
 ever, after the day of the passing of this act (18th December, 1795), 
 during the natural life of our most gracious sovereign lord the King, 
 and until the end of the next session of parliament after a demise of 
 the crown, shall, within the realm or without, compass, imagine, 
 invent, devise or intend death or destruction, or any bodily harm 
 tending to death or destruction, maim or wounding, imprisonment or 
 restraint of the person of his majesty, his heirs and successors, or 
 to deprive or depose him or them from the style, honour or kingly 
 name of the imperial crown of this realm, or of any other of his 
 majesty's dominions or countries, or to levy war against his majesty, 
 Ms heirs and successors, within this realm, in order by force or 
 constraint to compel him or them to change his or their measures 
 or counsels, or in order to put any force or constraint upon or to in- 
 timidate or overawe both houses or either house of parliament, or to 
 move or stir any foreigner or stranger with force to invade this 
 realm, or any other his majesty's dominions or countries under the 
 obeisance of his majesty, his heirs and successors, and such compass- 
 ings, imaginations, inventions, devices, or intentions, or any of them, 
 should express, utter or declare, by publishing any printing or writ- 
 ing, or by any ovei-t act or deed, being legally convicted thereof 
 upon the oaths of two lawful and credible witnesses upon trial, or 
 otherwise convicted or attainted by due course of law, then every 
 such person and persons so as aforesaid offending shall be deemed, 
 declared and adjudged to be a traitor and traitors, and shall suffer 
 pains of death, and also lose and forfeit as in cases of high treason. 
 (Made perpetual by 57 G. 3, c. 6, s. 1.) 
 
 1 1 ^ 1 2 Fic^. c.l 2, s. 1 .]— Recites the36 G.3,c.7,s.l,andb7 G.3, 
 c. Q, s. \, and that it is expedient to repeal all such of' the provisions 
 made perpetual by the last recited act as do not relate to offences 
 against the person of the sovereign, and to enact other provisions 
 instead thereof, applicable to all parts of the United Kingdom {see 
 post, p. 730), and to extend to Ireland such of the provisions of the said 
 acts as are not hereby repealed; and enacts, that from and after the 
 passing of this act, the provisions of the said act of the 36th year 
 of the reign of King George the Third, made perpetual by the said 
 act of the 57th year of the same reign, and all the provisions of 
 the last-mentioned act in relation thereto, save such of the same re- 
 spectively as relate to the compassing, imagining, inventing, devising, 
 or intending death or destruction, or any bodily harm tending to 
 death or destruction, maim or wounding, imprisonment or restraint 
 of the person of the heirs and successors of his said majesty King 
 George the Third, and the expressing, uttering or declaring of such 
 compassings, imaginations, inventions, devices and intentions, or any 
 of them, shall be and the same are hereby repealed. 
 
 Sect. 2.] — Enacts, that such of the said recited provisions made 
 perpetual by the said act of the 57 G. 3, as are not hereby repealed 
 shall extend to and be in force in that part of this United Kingdom 
 called Ireland. 
 
 Indictment for compassing the Queen's Death. 
 Middlesex, to wit : — The jurors for our lady the Queen, upon their 
 oath present, that J. S., being a subject of our said lady the Queen, 
 
High Treason. 721 
 
 not regarding the duty of his allegiance, nor having the fear of God 
 in his heart, but being moved and seduced by the instigation of the 
 devil, as a false traitor against our said lady the Queen, and wholly 
 ■withdrawing the allegiance, fidelity and obedience which eveiy true 
 and faithful subject of our said lady the Queen should and of right 
 ought to bear towards our said lady the Queen, on the first day of 
 
 June, in the year of our Lord , and on divers other days as well 
 
 before as after, maliciously and traitorously, together with divers 
 other false traitors to the jurors aforesaid unknown, did compass, 
 imagine, devise and intend to depose our said lady the Queen from 
 the royal state, title, power and government of this realm, and from 
 the style, honour, and kingly name of the imperial crown thereof, 
 and to bring and put our said lady the Queen to deatli : and the said 
 treasonable compassing, imagination, device and intention, malici- 
 ously and traitorously did express, utter, declare and evince, by 
 divers overt acts and deeds hereinafter mentioned, that is to say: IN 
 
 ORDER TO FULFIL, PEKFEOT AND BRING TO EFFECT his mOSt evil 
 
 and wicked treason, and treasonable compassing, imagination, device 
 and intention aforesaid, he the said J. S., as such false traitor as afore- 
 said, afterwards, to wit, on the said first day of August in the year 
 aforesaid, and on divers other days as well before as after, maliciously 
 and traitorously did conspire, consult, consent and agree with one 
 A. B., C. D., and divers other false traitors, to the jurors aforesaid 
 unknown, to raise, levy and make insurrection, rebellion and war 
 within this kingdom, against our said lady the Queen ; and further 
 
 TO FULFIL, PERFECT AND BRING TO EFFECT his mOSt evil and 
 
 wicked treason, and treasonable compassing, imagination, device and 
 intention aforesaid, he the said J. S., as such false traitor as aforesaid, 
 afterwards, to wit, [cte,, etc., so proceeding to state other overt acts in 
 the same manner; and then conclude the count th'as'\ ; in contempt of 
 our said lady the Queen and her laws, to the evil example of all 
 others in the like case offending, contrary to the duty of the allegi- 
 ance of him the said J. S. ; against the form {as ante, p. 347]. 
 
 J'he judgment far high treason is prescribed hy the statute 54 G. 3, 
 c. 146, s. 1, as follows: viz., that the person convicted " shall he 
 drawn on a hurdle to the place of execution, and be there hanged hy 
 the neck until such person be dead; and that afterwards the head 
 shall be severed from the body of such person, and the body divided 
 into four quarters shall be disposed of as his majesty and his succes- 
 sors shall think fit." But hy s. 2 of the same statute, the Queen, by 
 warrant under the sign manual, countersigned by a secretary of state, 
 may direct that the offender shall not he drawn, but shall be taken, in 
 such manner as in the warrant shall be expressed, to the place of 
 execution, and that he shall not be there hanged hy the neck, but that 
 instead thereof the head shall be there severed frtrni the body whilst 
 alive; and in such warrant mag direct in what manner the body, head 
 and quarters shall be disposed of. And now, iy 33 ^ 34 Vict. c. '23. 
 ». 31, such portions of 30 G. 3, c. 48, and 54 G 3, c. 146, as enact 
 that the judgment required by law to he awarded against persons ad- 
 judged guiliy of high treason shall include the drawing o^f the person 
 on a hurdle to the place of execution, and, after execution, the severing 
 of the head from the body, and the dividing of the body into four 
 quarters, are repealed. 
 
 High treason is not triable at quarter sessions. 5^6 Vict. c. 38, 
 «. 1 (ante, p. 1(14). 
 
 It may be satisfactory, in this place, to enumerate the several acts 
 
 W. H 
 
722 High Treasm. 
 
 ■which have been decided, or which have been deemed by writers 
 upon the subject to be sufficient overt acts of compassing the death 
 of the sovereign, within the statute of 25 Edw. 3, which is declara- 
 tory of the common law. 
 
 Everything wilfully or deliberately done or attempted, whereby 
 the Queen's life may be endangered, is an overt act of compassing her 
 death." Fast. 195. Killing the Queen is an overt act of compassing 
 her death, and was so laid in the case of the regicides. Kel. 8. So, 
 going armed for the purpose of killing the Queen ; R. v. Somerville, 
 1 And. 104 ; providing arms, ammunition, poison, or the like, for the 
 purpose of killing the Queen ; 1 Hale, 108 ; SInst. 12 ; conspirators 
 meeting and consulting on the means of killing the Queen ; Foit. 
 195 ; E. V. Vane, Eel. 15 : R. v. Tong, Kel. 17 ; and see Kel. 81 ; or 
 of deposing her, or of usurping the powers of government ; R. v. 
 Hardy, 1 East, P. C. 60 ; or resolving to do it ; R. v. Boohwood, 4 
 St. Tr. 661 : R. v. Chamoch, Id. 562 ; 2 Salk. 631 ; acting as counsel 
 against the Queen, in order to take away her life ; R. v. Coke, Kel. 
 12 : amd see R. v. Harrison, 2 St. Tr. 314 ; all these, and the like, are 
 sufficient overt acts of compassing the Queen's death. 
 
 So, other species of high treason, which are distinct heads of treason 
 in themselves, may be laid as overt acts of compassing the Queen's 
 death : thus, levying war directly against the Queen ; Fost. 195, 210, 
 212 ; 1 Hale, 122, 123, 151 ; Kel. 21 ; 3 Inst. 12 (but not a mere con- 
 structive levying of war, such as pulling down all inclosures, or the 
 like, 1 Hale, 123 ; see post, p. 726) ; or even a conspiracy to levy war 
 directly against the Queen, for the purpose of dethroning her, or of 
 obliging her to change her measures, or the like ; Fost. 197, 211 ; 
 1 Hale, 119, 121 : R. v. Friend, 4 St. Tr. 599 : R. v. Darrell, 10 Mod. 
 321 : R. V. Layer, 4 St. Tr. 229, 332 : R. v. Campion, Sav. 3 : R. v. 
 Lord Russell, 3 St. Tr. 705; and see Id. 683, 701, 731 : R. v. Sidn^, 
 3 St. Tr. 807 : R. v. CooJc, 4 St. Tr. 737-776 (but not a conspiracy to 
 effect a rising for the purpose of throwing down all inclosures, or of 
 any other species of constructive levying of war, Fost. 213 : per 
 Holt, C. J., Holt, 682 ; per cur., 10 Mod. 322) ; adhering to the 
 Queen's enemies ; Fost. 196, 197 : R. v. Harding, 2 Vent. 315 : B. v. 
 Lord Preston, 4 St. Tr. 410-455 : R. v. Stone, 6 T. R. 527 ; inciting 
 foreigners to invade the realm ; Fost. 196 ; 1 Hale, 120 ; 3 Inst. 14: 
 R. V. Story, Dy. 298: B. v. Parhyns, 4 St. Tr. 627: 'all these are 
 sufficient overt acts of compassing the Queen's death. 
 
 Writings which import a compassing of the Queen's death are 
 sufficient overt acts of this'species of treason, if published ; 1 Hale, 
 118 ; 3 Inst. 14 ; Fost. 198 ; 1 Hawh. c. 17, «. 31 ; as, for instance, 
 writings, exciting persons to kill the Queen, B. v. Twyn, Kel. 22, or 
 the like. See the several cases collected in Pyne's case, Oro. Car. 117. 
 So, words of advice or persuasion are sufficient overt acts of this 
 species of treason, if they advise or persuade to an act which would 
 of itself (if committed) be a sufficient overt act. Fost. 195, 200; 
 B. V. Chamoch, 4 St. Tr. 562 ; 2 Salk. 631. So, words may be laid 
 in the indictment to explain an act ; as, for instance, an act seem- 
 ingly innocent in itself may be shown to be an overt act of treason, 
 by its connexion with words spoken by the party at the time. 1 Hale, 
 115 ; and see B. v. Parkyns, 4 St. Tr. 627, 657 : B. v. Orohagam, Oro. 
 Car. 332 : B. v. Lee, 7 St. Tr. 43. But loose words which have no 
 reference to any act or design, or which are not words of persuasion 
 or advice, cannot be deemed overt acts of treason. Fost. 200-205 ; 
 B. V. Theeing, 3 St. Tr. 79-90. 
 
High Treason. 723 
 
 Where words or writings are laid as overt acts, it is sufficient to 
 set forth the substance of them ; R. v. Francis, 6 St. Tr. 58, 73 : R. 
 V. Lord Preston, 4 St. Tr. 411 : R. v. Watson, 2 Stark. 137 ; for in no 
 case is it necessaiY that the whole detail of the evidence should be 
 set forth ; it is sufficient that the charge be reduced to a reasonable 
 certainty, bo that the defendant may be apprised of its nature; and 
 may be prepared to answer it. Fast. 194. 
 
 Any number of overt acts may be laid ; Kel. 8 ; but if any one 
 sufficient ovei-t act be proved, it will maintain the count. 1 Hale, 
 122; Fost. 194. 
 
 Evidence. 
 
 The evidence must be applied to the proof of the ffvert acts, and 
 not to the proof of the principal treason ; for the overt act is the 
 charge to which the prisoner must apply his defence. And whether 
 the overt act proved be a sufficient overt act of the principal treason 
 laid in the indictment, is a matter of law to be determined by the 
 court. It is also expressly enacted, that no evidence shall be ad- 
 mitted of any overt act not laid in the indictment ; 7 S 8 W. 3, c. 3, 
 s. 8 ; that is to say, no overt act amounting to a distinct independent 
 charge, although it be an overt act of the species of treason charged, 
 shall be admitted in evidence, unless it be expressly laid in the in- 
 dictment ; but if an overt act not laid amount to a direct proof of any 
 other overt act which is laid, it may be given in evidence to prove 
 such overt act. R. v. Roohwood, 4 St. Tr. 627, 661 : R. v. Deacon, 
 Fost. 9: R.v. Lowich, 4 St. Tr. 718, 722, 731 : R. v. Layer, 8 Mod. 
 82, 89 ; 6 St. Tr. 229, 282, 284 : R. v. Wedderloume, Fost. 22. (Ante, 
 p. 214.) 
 
 Although writings cannot be laid as an overt act, unless published, 
 yet, if they tend to prove an overt act laid, they shall be admitted in 
 evidence for that purpose, although never publi-shed. R. v. Lord 
 Preston, 4 St. Tr. 410, 440: R. v. Layer, 6 St. Tr. 272-280: R. v. 
 Hensey, 1 Bur. 642, 644. And in Sidney's case, if the papers found 
 in his closet had been plainly referable to the other treasonable prac- 
 tices charged in the indictment, they might indisputably have been 
 read in evidence against him, although not published. Fost. 198. 
 Also, it is no objection that the writings, or any other articles, were 
 not found until after the apprehension of the defendant. R. v. 
 WaUm, 2 Stark. 137. 
 
 Where words of incitement have reference to an act, after giving 
 evidence of the words, you may give evidence of the act, in order 
 fully to explain them. R. v. Lord G. Gordon, Doug. 590, 593. 
 
 Where a conspiracy is laid as an overt act, the acts of any of the 
 conspirators in furtherance of the common design may be given in 
 evidence against all. R. v. Hardy, 1 East, P. C. 98 : R. v. Stone, 6 
 T. R. 527 : R. v. M'Cafferty, 10 Cox, 603 ; and see Eel. 19, 20 (ante, p. 
 214). In such a case, the first thing to be proved is the conspiracy; 
 secondly, evidence must be given to connect the defendant with it ; 
 and lastly, if it be intended to give in evidence against the defendant 
 the acts of any other person, you must show that such person was 
 also a member of the same conspiracy, and that the act done was in 
 furtherance 'of the common design. See R. v. Sidney, 3 St. Tr. 798, 
 etc.: R. v. Lord Lovat, 9 St. Tr. 670, etc. (ante, pp. 209, 210, 214). 
 
 The time at which the overt acts are alleged to have been com- 
 mitted need not be proved as laid ; it is sufficient if they be proved 
 to have been committed at any time within three years befbre the 
 
 n2 
 
724 High Treason. 
 
 finding of the indictment. R. v. Chamoch, 1 SalJc. 288 : if. v. ion 
 Balmerino, 9 St. Tr. 587-605 : R. v. Tmmley, Fast. 7, 8. 
 
 As to the place where the overt act is alleged to have been com 
 mitted ; an overt act must be proved to have been committed in tin 
 proper county. See R. v. Lord Preston, 4 St. Tr. 410-455. But i 
 any one overt act be proved against the defendant in the propei 
 county, acts of treason tending to prove such overt act laid, thougl 
 done in a foreign county, may be given in evidence ; and this wai 
 done in nearly all the trials of the rebels in the year 1746. Foil 
 9,22. 
 
 Where several overt acts are laid, proof of any one of them wil 
 maintain the count, provided the overt act so proved is a suffieien 
 overt act of the species of treason charged in the indictment. 1 Hah 
 122 ; Fast. 194. 
 
 The prisoner is not bound to show what was the object or meaning 
 of the acts done by him : it is for the Crown to maka out that thej 
 amount to the treason charged in the indictment. R. v. Frost, £ 
 a & p. 129. 
 
 There must be two witnesses to prove the treason, both of them to 
 the same overt act, or one of them to one, and tlie other of them to 
 another overt act of the same treason ; unless the defendant shall 
 willingly, without violence, confess the same ; 7 <fc 8 FT. 3, c. 3, 
 ss. 2, 4 ; except in cases of high treason in compassing or imagining 
 the death or destruction, maiming or wounding of the Queen, and o( 
 misprision of such treason, where the overt acts alleged in the indict- 
 ment shall be any attempt to injure her person ; in which cases the 
 prisoner is triable in the same manner and upon the like evidence, as 
 if charged with murder ; 39 cfc 40 (?. 3, c. 93 ; 5 c6 6 Vict. c. 51, s. 1. 
 And if the jury do not give credit to both the witnesses, the de- 
 fendant shall be acquitted. R. v. Palmer, 3 St. Tr. 56. But where 
 the overt act is composite, made up of several circumstances and 
 passing through several stages, it is not necessary that there should 
 be two witnesses to each circumstance and at each stage. It is 
 enough if the joint testimony of two or more witnesses establish the 
 act as a whole. R. v. M'Cafferiy, 10 Cox, 603. And one witness is 
 sufficient to prove a collateral fact ; Fast. 242 ; as, that the defendant 
 is a natural-born subject ; R. v. Vaughan, 5 St. Tr. 29 ; or the hke. 
 
 The prisoner is entitled, under the stat. 7 Anne, c. 21, «. 11, in cases 
 of treason or misprision of treason (except in cases of high treason 
 in compassing or imagining the death or destruction, or any bodily 
 harm tending to the death or destruction, maiming or wounding of 
 the Queen, and of mispx-ision of such treason, where the overt acts 
 alleged in the indictment shall be any attempt to injure her person, 
 in which cases the prisoner is triable in the same manner, and upon 
 the like evidence, as if charged with murder, 39 & 40 O. 3, c. 93; 
 5 (fe 6 Vict. c. 51, s. 1), to have a list of the witnesses to be produced 
 on the trial, and of the jury, given to him at the same time that the 
 copy of the indictment is delivered to him ; and the copy of the 
 indictment (which need not contain a copy of the finding of the 
 grand jury; R. v. Burke, 10 Cux, 519), with such lists, is to be de- 
 livered to him ten days before the trial. By the 6 (?. 4, c. 50, «. 62, 
 so much of 7 Anne, c. 21, s. 11, as relates to giving a list of the jury 
 to the party indicted of high treason or misprision of treason is 
 repealed, and by s. 21 of the first-named statute, it is enacted, " that 
 
High Treason. 725 
 
 ■when any person is indicted for high treason or misprision of treason, 
 in any court other than the Court of King's Bench, a list of the petit 
 jury, mentioning the names, profession, and place of abode of the 
 jurors, shall be given at the same time that the copy of the indict- 
 ment is delivered to the party indicted, -which* shall be ten days 
 before the arj-aignment, and in the presence of two or more credible 
 ■witnesses; and wlien any person is indicted for high treason or mis- 
 prision of treason in the Court of King's Bench, a copy of tlie indict- 
 ment shall be delivered within the time and in the manner aforesaid ; 
 but the list of the petit jury, made put as aforesaid, may be delivered 
 to the party indicted at any time after the arraignment, so as the 
 same be delivered ten days before the day of trial : Provided always, 
 that notliing herein contained shall anyways extend to any indict- 
 ment for high treason in compassing and imagining the death of the 
 king, or for misprision of such treason, where the overt act or overt 
 acts of such treason alleged in the indictment shall be assassination 
 or killing of the king, or any direct attempt against his life, or any 
 direct attempt against his person, whereby his life may be en- 
 dangered, or his person may suffer bodily harm." 
 
 And by 17 <£ 18 Vict. c. 26, the provisions of 7 Anne., c. 21, are ex- 
 tended to Ireland, where before the law in this respect was different 
 (see O'Brien v. R., 2 H. L. C. 465). A bill of indictment for treason 
 was found on the 11th December; on the 12th, copies of the indictment 
 and of the jury panel were delivered to the prisoner; and on the 17th, 
 a copy of the list of witnesses was delivered to him. The prisoner 
 was arraigned on tlie 31st December, and pleaded : and upon the 
 first witness being called for the Crown, it was objected that the 
 list of witnesses had not been delivered according to the statute. 
 Upon a case reserved, it was holden, by nine judges to six, that the 
 delivery of the list was not a good delivery in point of law : but it 
 was also holden, by a like majority, that the objection was tpo late 
 after plea pleaded. And it was agreed by all the judges, that if the 
 objection had been taken in due time, the only effect of it would 
 have been a postponement of the trial, to give time for a proper 
 delivery of the list. B. v. Frost, 2 Mood. C. C. 140 ; 9 C. of P. 129. 
 And so the fact that a, true copy of the indictment has not been 
 furnished to the prisoner is not matter for a plea, but is only a ground 
 for postponing the trial. Jl. v. Burke, 10 Cox, 619. 
 
 No treason, misprision of treason, or offence against the Queen's 
 title, prerogative, person or government, or against either house of 
 parliament, is triable at any quarter sessions. 5 c6 6 Vict. c. 38, s. 1 
 {ante, p. 104). 
 
 Form of a Count for levying War. 
 And the jurors aforesaid, upon their oath aforesaid, do further pre- 
 sent, that the said J. S., being a subject of our said lady the Queen, 
 not regarding the duty of liis allegiance, nor having the fear of God 
 in his heart, but being moved and seduced by the instigation of the 
 devil, as a false traitor against our said lady the Queen, and wholly 
 withdrawing the allegiance, fidelity and obedience, which every true 
 and faitliful subject of our said lady the Queen should and of right 
 ought to bear towards our said lady the Queen, on the said first day of 
 June, in the year aforesaid, together with divers other false traitors 
 to the jurors aforesaid unknown, armed and arrayed in a ■warlike 
 manner, that is to say, with guns, muskets, blunderbusses, pistols, 
 
726 High Treason. 
 
 swords, bayonets, pikes, and other weapons, being then unlawfully, 
 maliciously and traitorously assembled and gathered together against 
 our said lady the Queen, most wickedly, maliciously and traitorously 
 did levy and make war against our said lady the Queen within this 
 realm, and did then maliciously and traitorously attempt and endea- 
 vour by force and arms to subvert and destroy the constitution and 
 government of this realm, as by law established, and deprive and 
 depose our said lady the Queen of and from the style, honour and 
 kingly name of the imperial crown of this realm ; in contempt of 
 our said lady the Queen and her laws, to the evil example of all 
 others in the like case oflFending, contrary to the duty of the alle- 
 giance of him the said J. S. ; against the form [as ante, p. 347]. 
 
 ire this count it is not necessary to set out the particula/r acts of the 
 defendant; it is sufficient to allege generally, thai he assembled with a 
 multitvde, armed and arrayed in a warlihe manner, and levied war. 
 Fast. 220. 
 
 Evidence. 
 
 In order to maintain this count, it is necessary to prove that which 
 in law amounts to a levying of war, directly or constructively, against 
 the Queen in her realm : and to prove that the defendant was either 
 actually engaged in it, or present aiding and abetting. Levying war, 
 in Ireland, is treason, by force of the Irish stat. 10 H. 7, c. 24. O'Brien 
 V. R., 2 S. L. a 466. 
 
 In order to constitute a levying of war, the number of persons 
 assembled is not material ; three or four will constitute it as fully as 
 a thousand, 3 Inst. 9. Nor is it necessary that they should be more 
 guerrino arraiati, armed with military weapons, with colours flying, 
 etc., although it is usually so stated in the indictment. Fast. 208 ; 
 and see R. v. Dammaree & Purchase, Fast. 208. Nor is actual fight- 
 ing necessary to constitute a levying of war ; Fast. 218 ; 1 Hale, 
 144; for, as the court held in Vaughan's case'{5 St. Tr. 17-39; 2 
 Salk. 634), enlisting and marching are sufficient, without coming to 
 battle. There must be an insurrection, there must be force accom- 
 panying that insurrection, and it must be for an object of a general 
 nature. R. v. Frost, 9 C. & P. 129. After an action had taken 
 place, it is termed helium percussum ; before it, helium lematum. 
 
 War levied against the Queen is of two kinds — direct and con- 
 structive : direct, when the war is levied directly against the Queen 
 or her forces, with intent to do some injury to her person, to imprison 
 her, or the like ; 1 Hale, 131, 132 ; such, for instance, as open re- 
 bellion, for the purpose of deposing or imprisoning the Queen, or of 
 getting her into the power of the rebels, or of forcing her to put 
 away her ministers, or the like ; 1 Hale, 152 ; Fost. 210 ; and see R. 
 V. The Earls of Essex and Southampton, Moore, 620 ; 1 St. Tr. 197 ; 
 holding or defending any of the Queen's castles, forts, or ships against 
 the Queen or her forces, or delivering them up to rebels, through 
 treachery; 2 In£t. 10; Fost. 219; 1 Hale, 525, 526; constructive, 
 where it is levied for the pui-pose of effecting innovations of a public 
 and general nature by an armed force ; Fost. 231 ; as, for the pur- 
 pose of attempting by force to obtain the repeal of a statute, to 
 alter the religion established by law, or to obtain the redress of any 
 other public grievance, real or pretended ; 1 Hawk. c. 17; x. 26 ; 1 
 Hale, 153; Fost. 211 ; 3 Inst. 9, 10: R. v. Lord G. Gordon, Dougl 
 590 ; or an insurrection for the purpose of throwing down all en- 
 closures, pulling down all bawdy-houses, opening aU prisons, etc., 
 
High Treason. 727 
 
 expelling all strangers, enhancing the price of wages generally, or 
 the like. Post: 214; 1 HaU, 132: R. v. Bradshaw, Poph. 122: R. 
 V. Messenger, Kel. 70-79. Therefore, where a mob assembled for the 
 purpose of destroying all the Protestant dissenting meeting-houses, 
 and actually pulled down two, it was holden to be treason. R. v. 
 Dammaree, 8 St. Tr. 218: R. v. Purchase, Id. 267. But an insur- 
 rection for the purpose of throwing down the enclosures of a par- 
 ticular manor, park, common, etc., or upon a mere quarrel between 
 private persons, Post. 210 ; 1 Bale, 131, 133, 149, or to deliver one 
 or more particular persons out of prison (they not being imprisoned 
 for treason), 1 Hale, 134, or holding a house by force against a sheriff 
 and posse comitatus, 1 Hale, 146, is not treason. So, if an armed 
 body of men enter a town, their object being not to take it, or to 
 attack the military force there, but merely to make a demonstration 
 of their strength to the magistracy, in order to procure the libera- 
 tion or mitigate the punishment of prisoners convicted of some 
 political offence, this, though an aggravated misdemeanor, is not high 
 treason. R. v. Frost, 9 C. & P. 129. 
 
 Also, in order to maintain this count, proof must be given of a war 
 actually levied, and not merely of a conspiracy to levy it. 1 Hale, 
 141-148; 1 Hawh. c. 17, s. 27. 
 
 It may be necessary here to mention, that, in the case of war 
 levied directly against the Queen, all persons assembled and march- 
 ing with the rebels are guilty of treason, whether they are aware of 
 the purpose of the assembly, or aid and assist in committing acts of 
 violence, or not; R. v. The Earls of Essex and Southampton, Moore, 
 621; unless compelled to join and continue with them^ro timore 
 mortis. Post. 216, 217; 3 Inst. 10; 1 Hale, 49, 51, 139; arid see 
 R. V. M^Orowther, Post. 13. But in the case of a constructive levy- 
 ing of war, those only of the rabble who actually aid and assist in 
 doing those acts of violence which form the constructive treason, are 
 traitors; the rest are merely rioters. See R. v. Messenger, Kel. 70- 
 79; 1 Sid. 358; 2 St. Tr. 685-594. 
 
 Porm of a Count for adhering to the Queen's Enemies. 
 
 And the jurors aforesaid, upon their oath aforesaid, do further pre- 
 sent, that, on the said first day of June, in the year last aforesaid, and 
 long before, and continually from thence hitherto, an open and public 
 war was and is yet prosecuted and carried on between our said lady 
 
 the Queen and , and that the said J. S., a subject of our said lady 
 
 the Queen then being, well knowing the premises, but not regarding 
 the duty of his allegiance, nor haviYig the fear of God iu his heart, 
 but being moved and seduced by the instigation of the devil, as a false 
 traitor against our said lady the Queen, and wholly withdrawing the 
 allegiance, fidelity, and obedience which every true and faithful sub- 
 ject of our said lady the Queen should and of right ought to bear 
 towards our said lady the Queen, and contriving and with all his 
 
 strength intending to aid and assist the said , so being an enemy 
 
 of our said lady the Queen as aforesaid, in the prosecution of the said 
 war against our said lady the Queen, heretofore and during the said 
 war, to wit, on the said first day of June, in the year last aforesaid, 
 and on divers other days as well before as after, maliciously and trai- 
 torously was adhering to, and aiding and comforting the said , so 
 
 being then an enemy of our said lady the Queen as aforesaid : And 
 
728 Higli Treason. 
 
 THAT in tTie prosecution, performance, and execution of his treason 
 and traitorous adhering aforesaid, he the said J. S., as such false 
 traitor as aforesaid, during the said war, to wit, on the said first day 
 of June, in the year last aforesaid, and on divers [etc., here set oat the 
 overt acts, introducing each overt act thus : and in further prosecu- 
 tion, performance, and execution of his treason and traitorous ad- 
 hering aforesaid, he the said J. S.. as such false traitor as aforesaid, 
 afterwards, and during the said war, to wit. on, etc., etc.; and can- 
 chiding the count thus"] : in contempt of our said lady the Queen and 
 her laws, to the evil example of all others in like cases offending, 
 contrary to the duty of the allegiance of him the said J. S.; against 
 the form \as ante, p. 347]. The special acts of adherence must he set 
 forth in the indictment as overt acts; hut it ii not necessary in this or 
 in any other rase of ii'eason, that in laying the overt acts, a detail of 
 the evidence intended to he given at the trial should be stated; it is 
 sufficient if the charge be i educed to a reasonable certainty, so that 
 the defendimt may he apprised of the nature of the offence with which 
 he is charged. Fast. 194, 220. 
 
 We will now state what have been decided or deemed to be overt 
 acts of this species of treason. 
 
 The words in the statute of 25 Edw. 3 (ante, p. 719) are — " or be 
 adherent to the enemies of our lord the King in his realm, giving to 
 them aid or comfort in the realm or elsewhere." Hence, every assist- 
 ance given by the Queen's subjects to her enemies, unless given from 
 a well-grounded apprehension of immediate death in case of a refusal, 
 is high treason within this branch of the statute. Therefore, if British 
 subjects join the Queen's enemies in acts of hostility against tins 
 countiy, Fast. 216; 1 Hawh. c. 17, s. 28, or even against the Queen's 
 allies; Fast. 220; per cur. in R. v. Vanghan, 2 Salk. 635; or join the 
 enemy's forces, although no acts of hostility be committed by them 
 either against the Queen or her allies, Fost. 218; R. v. Vaughan, 
 2 Salk. 634; 5 St. Tr. 17, or raise troops for the enemy, R. v. Hard- 
 ing, 2 Vent. 315, or deliver up the Queen's castles, forts, or ships of 
 war to the Queen's enemies through treachery or in combination with 
 them, Fost. 219; 3 Inst. 10; 1 ITale, 168, or even detain the Queen's 
 castles, etc., from her, if it be done in confederacy with the enemy, 
 Fost. 219; 1 Bale, 326, or send money, arms, intelligence, or the 
 like, to the Queen's enemies, Fost. 217, although such money, intel- 
 ligence, etc., be intercepted and never reach them ; R. v. Gregg, 10 
 St. Tr. App. 77; Fost. 198, 217, 218; R. v. Hensey, 1 Bur. 642; R.v. 
 Lord Preston, 4 St. Tr. 409-455; all these are cases of adhering to 
 the Queen's enemies, and the parties are guilty of high treason. 
 And where letters, etc., have been thus intercepted, it is much better 
 to charge them to have been s'ent from the place where the venue 
 was laid, to be delivered in parts beyond the seas, to the enemy, 
 according to the fact, than to state them to have been sent in partes 
 transmarinas, to be delivered to the enemy. Fost. 218. In R, v. 
 Stone, 6 T. R. 527, it was objected that the intelligence transmitted 
 by the defendant to the enemy was calculated to dissuade them from 
 invading this country, and was sent with that intent; but Lord 
 Kenyon, U. J., said, that whether the intelligence were calculated to 
 dissuade or invite the enemy was immaterial; if it were such as was 
 likely to prove useful to them, in enabling them to annoy us, defend 
 themselves, or shape their attacks; sending such intelligence with a 
 view of its reaching the enemy was undoubtedly high treason. If a 
 British subject incite foreigners to invade this country, it is treason 
 
Eigh Treason. 729 
 
 whether the foreigners be enemies or not; if enemies, it is treason 
 within this branch of the statute ; if not enemies, still it is an overt 
 act of compassing the Queen's death. Fast. 196, 197; 1 Hale, 167. 
 But if a British subject be in a foreign country when war breaks out 
 between that country and this, and continue to reside there, or if 
 during a truce he go to a foreign country, and return befoi-e the truce 
 expires, this is no treason, unless he actually conspire with the 
 enemy, or aid him in forwarding his measures for hostility. 1 Hale, 
 165, 166. 
 
 As to the Queen's enemies, within the meaning of this statute: — 
 the subjects of all states against which her Majesty may have pro- 
 claimed or declared war, are her enemies ; so are the subjects of 
 states in actual hostility with us, whether war have been solemnly 
 proclaimed or not. Fast. 219; 1 Hak, 162. But merely issuing 
 letters of marque does not create a state of hostility between two 
 states, although nearly equal to a state of war in its consequences. 
 1 Hale, 162. Nor is inciting the subjects of a state in amity with 
 us to invade this country, treason within this branch of the statute, 
 although it certainly would be an overt act of compassing the Queen's 
 death. 1 Hale, 167. But if the subjects of a state in amity with us 
 were to invade the country in a hostile manner, or otherwise commit 
 hostilities against us, they would be enemies within the meaning of 
 this statute, and adhering to them would be treason. Fast. 219 ; 1 
 Hah 164 ; 3 Inst. 11 ; 4 Jnst. 152: R. v. Vaughan, 2 Salk. 634; 5 
 St. Tr. 17-39. British subjects, however, can never be deemed the 
 Queen's enemies within the meaning of this act, and therefore to give 
 relief or assistance to a rebel would not be treason within this branch 
 of the statute. 3 Inst. 11; 1 Hale, 159; 1 Hawk. c. 17, s. 28. 
 
 It must appear upon the face of the indictment that the persons 
 adhered to were enemies. 
 
 Euidence. 
 
 The count is proved in the same manner as the count for com- 
 passing the Queen's death (see ante, p. 723 et seq.), namely, by proving 
 one or more of the overt acts laid. The fact of the persons adhered 
 to being enemies may be proved by the production of the Gazette 
 containing the proclamation, if war were formally proclaimed, or 
 public notoriety is sufficient evidence of it. 19 E. 4,/. 5; Fnst. 219; 
 1 Hale, 164. And whether they are enemies or not, is a matter of 
 fact to be determined by the jury. Id. 
 
 An actual adherence must be proved. A mere conspiracy or in- 
 tention to adhere is not treason within this branch of the statute, 
 although probably such a conspiracy might be laid as an overt act 
 of compassing the Queen's death. But if you can prove such a con- 
 spiracy, and connect the defendant with it by evidence, and can 
 prove an act done by any one of the conspirators in furtherance of 
 the common design, you may give it in evidence against the defend- 
 ant, if it tend to prove any of the overt acts laid in the indictment ; 
 for the act of one, in such a case, is the act of all. R. v. Stone, 6 T. R. 
 627 (see amte, p. 214). 
 
 Form of a Count (m Stat 36 G. 3, c. 7, «. 1,/or Conspiring to incite 
 Foreigners to invade the Realm. 
 And the jurors aforesaid, upon their oath aforesaid, do further pre- 
 sent that the said J. S., being a subject of our said lady the Qiieen:, 
 
 Il5 
 
730 High Treason. 
 
 not regarding the duty of his allegiance, nor having the fear of God 
 in his heart, but being moved and seduced by the instigation of the 
 devil, as a false traitor against our said lady the Queen, and wholly 
 withdrawing the allegiance, fidelity, and obedience which every true 
 and faithful subject of our said lady the Queen should and of right 
 ought to bear towards our said lady the Queen, on the first day of 
 June, in the year last aforesaid, and on divers other days and times 
 as well before as after, maliciously and traitorously, together with 
 divers other false traitors, to the jurors aforesaid unknown, did 
 compass, imagine, invent, devise, and intend to move and stir divers 
 
 foreigners and strangers, to wit, , and divers other foreigners 
 
 and strangers to the jurors aforesaid unknown, with force and arms, 
 to invade this realm ; and the said compassing, imagination, inven- 
 tion, device and intention, did then express, utter and declare, by 
 divers overt acts and deeds hereinafter mentioned, that is to say ; in 
 
 ORDEK TO FULFIL, PERFECT, AND BRING TO EFFECT his mOSt evil 
 
 and wicked treason, and treasonable compassing, imagination, iaven- 
 tion, device and intention aforesaid [etc., etc., setting cmt the overt acts 
 and concluding the count as in the form ante, p. 721]. 
 
 This offence is not triable at quarter sessions. 5 <B 6 Vict. c. 38, «. 1 
 (ante, p. 104). 
 
 The evidence necessary to support this covmt may readily he made out 
 from the directions given ante, f. 723, the same rules applying equally 
 to this count as to the count for compassing the Queen's death. 
 
 Form of other Counts on Stat. 36 G. 3,' c. 7, s. 1. 
 
 Commencement ut supra"] — did compass, imagine, invent, devise, 
 and intend the death and destruction of our said sovereign lady the 
 Queen ; and the said compassing, etc., etc., ut supra. 
 
 Commencement ut supra] — did compass, imagine, invent, devise, 
 and intend certain bodily harm tending to the death and destruction 
 of our said sovereign lady the Queen ; and the said compassing, etc., 
 etc., ut supra. 
 
 Commencement ut supra"] — did compass, imagine, invent, devise, 
 and intend to maim and wound our said sovereign ISdy the Queen; 
 and the said compassing, etc., etc., ut supra. 
 
 Commencement ut supra] — did compass, imagine, invent, devise, 
 and intend the imprisonment and restraint of the person of our said 
 sovereign lady the Queen; and the said compassing, etc., etc., ut 
 mpra. 
 
 Sect. 2. 
 felonious compassing to levy war, etc. 
 
 11 <fi 12 Vict. c. 12, s. 3.1 — If any person whatsoever after the 
 passing of this act shall, within the United Kingdom or without, 
 
Treasonable Felony. 731 
 
 compass, imagine, invent, devise, or intend to deprive or depose 
 our most gracious lady the Queen, her heirs or successors, from the 
 style, honour, or royal name of the imperial crown of the United 
 Kingdom, or of any other of her Majesty's dominions and countries, 
 or to levy war against her Majesty, her heirs or successors, within 
 any part of the United Kingdom, in order by force or constraint to 
 compel her or them to change her or their measures or councils, or 
 in order to put any force or constraint upon, or in order to intimidate 
 or overawe both houses or either house of parliament, or to move or 
 stir any foreigner or stranger with force to invade the United King- 
 dom, or any other of her Majesty's dominions or countries under the 
 obeisance of her Majesty, her heirs or successors, and such compass- 
 ings, imaginations, inventions, devices or intentions, or any of them, 
 shall express, utter, or declare by publishing any printing or writing, 
 or by open and advised speaking, or by any overt act or deed, every 
 person so offending shall be guilty of felony, and being convicted 
 thereof shall be liable, at the discretion of the court, to be trans- 
 ported beyond the seas for the term of his or her natural life, or for 
 any term not less than seven years, or to be imprisoned for any term 
 not exceeding two years, with or without hard labour as the court 
 shall direct. 
 
 20 <& 21 Vict. c. 3.']— Ante, p. 172. 
 
 27 & 28 Vict. c. 47, s. 2.']— Ante, p. 173. 
 
 11 & 12 Viet. c. 12, s. i^— Limitation of Prosecutions.] — Provided, 
 that no person shall be prosecuted for any felony by virtue of this 
 act, in respect of such compassings, imaginations, inventions, devices, 
 or intentions as aforesaid, in so far as the same are expressed, uttered, 
 or declared by open and advised speaking only, unless information 
 of such compassings, imaginations, inventions, devices and inten- 
 tions, and of the words by which the same were expressed, uttered, 
 or declared, shall be given upon oath to one or more justice or jus- 
 tices of the peace, or to any sheriff or steward, or sheriff-substitute, 
 , or steward-substitute, in Scotland, within six days after such words 
 shall have been spoken, and unless a warrant for the apprehension 
 of the person by whom such words shall have been spoken shall be 
 issued within ten days next after such information shall have been 
 given as aforesaid, and unless such warrant shall be issued within 
 two years next after the passing of this act ; and that no person 
 shall be convicted of any such compassings, imaginations, inventions, 
 devices, or intentions as aforesaid, in so far as the same are ex- 
 pressed, uttered, or declared, by open or advised speaking as afore- 
 said, except upon his. own confession in open court, or unless the 
 words so spoken shall be proved by two credible witnesses. 
 
 Sect. 5— Overt Acts.] — It shall be lawful, in any indictment for any 
 felony under this act, to charge against the offender any number of 
 the matters, acts, or deeds, by which such compassings, imagina- 
 tions, inventions, devices, or intentions as aforesaid, or any of them, 
 shall have been expressed, uttered, or declared. 
 
 Sect. 6 — Not to affect 25 Edw. 3, c. 2.] — Nothing herein contained 
 shall lessen the force of or in any manner affect anyihing enacted 
 by the statute passed in the twenty-fifth year of King Edward the 
 Third, " A Declaration which Offences shall be a^udged Treason." 
 
732 Treasonable Felmaf. 
 
 Sect. 7 — Indictment, etc., valid, though Facts amount to Treason.]— 
 If the facts or matters alleged in an indictment for any felony 
 under this act shall amount in law to treason, such indictment shall 
 not by reason thereof be deemed void, erroneous, or defective ; and 
 if the facts or matters proved on the trial of any person indicted 
 for any felony under this act shall amount in law to treason, such 
 person shall not by reason thereof be entitled to be acquitted of such 
 felony ; but no person tried for such felony shall be afterwai-ds pro- 
 secuted for treason upon the same facts. 
 
 Sect. 8 — Punishment of Accessories.'] — In the case of every felony 
 punishable under this act, eveiy principal in the second degree, 
 and every accessory before the fact, shall be punishable in the same 
 manner as the principal in the first degree is by this act punishable; 
 and every accessory after the fact to any such felony shall on con- 
 viction be liable to be imprisoned, with or without hard labour, for 
 any term not exceeding two years. 
 
 Sect. 10 — No Costs to Prosecutor or Witnesses.] — It shall not be 
 lawful for any coui-t before which any person shall be prosecuted or 
 tried for any felony under this act, to order payment to the pro- 
 secutor or the witnesses of any costs which shall be incurred in pre- 
 ferring or prosecuting any such indictment. 
 
 Indictment. 
 
 Central Criminal Court, to wit : — The jurors for our lady the Queen 
 upon their oath present, that J. S., A. B. and C. D., not regarding 
 the duty of their allegiance, but wholly withdrawing the love, obe- 
 dience, fidelity and allegiance which every true and faithful subject 
 of our said lady the Queen does and of right ought to bear towards 
 our said lady the Queen, on the first day of June, in the year of our 
 
 Lord , and on divers other days as well before as after that day, 
 
 together with divers other evil-disposed persons to the jurors afore- 
 said unknown, feloniously and wickedly did compass, imagine, in- 
 vent, devise, and intend to deprive and depose our said lady the 
 Queen from the style, honour, and royal name of the imperial crown 
 of the United Kingdom of Great Britain and Ireland; and the said 
 felonious compassing, imagination, invention, device, and intention, 
 then feloniously and wickedly did express, utter, and declare by 
 divers overt acts and deeds hereinafter mentioned, that is to say ;— 
 In order to fulfil, perfect, and bring to effect their felonious com- 
 passing, imagination, invention, device, and intention aforesaid, they 
 the said A. B. and C. D. afterwards, to wit, on the said first day of 
 June, in the year aforesaid, and on divers other days and times as 
 well before as after that day, feloniously and ■wickedly did conspire, 
 consult, confederate, assemble and meet together with divers other 
 evil-disposed persons to the jurors aforesaid unknown, to raise, make 
 and levy insurrection and rebellion against our said lady the Queen 
 •within- this realm : and further to fulfil, perfect, and bring to effect 
 [etc., proceeding to state other overt acts in the like manner; and con- 
 clude the count thus] : in contempt of our sajd lady the Queen and 
 her laws, to the evil example of all others in the like case offending; 
 against the form l_as ante, p. 347]. Add counts charging a com- 
 passing to lem/ war, in order to compel the Queen to change her mea-- 
 sures and councils, or otherwise according to the facts. If the overt 
 
Assaults, etc., on the Queen. 733 
 
 ante consisted in the publishing of any printing or writing, state them 
 (Ams;— "did express, utter and declare, by then feloriously publish- 
 ing in a certain newspaper called the , certain printing, that is 
 
 to say," [setting it ouf]. Where the indictment charges the prisoners 
 with ^'compassing, imagining, inventing, devising and intending to 
 deprioe and depose our Uidy the Queen," etc , it is sufficient to allege 
 as an overt act ihid the priioners conspired to commit that offence. 
 Mulcahy v. R , L. R., 3 /f. i. English and Irish Appeals, 306. 
 Wliere there are several overt acts charged in one count, and a judg- 
 ment is given on a general verdict of guilty on that count, such judg- 
 ment will be sustained, though some of the matters alleged as overt 
 acts may be improperly so alleged, provided that the count contains 
 allegations of overt acts that are sufficient, and ore sufficiently alleged. 
 Id. The allegation, in one count, of several different overt acts of 
 felony, is not ohjectioniible under 11 ^ 12 Vict. c. 13. Id. 
 
 Felony: penal servitude for life or for not less than five years, or 
 imprisonment, with in- without hard labour, not exceeding two years, 
 11 ^ 12 Vict. c. 12, s. 3; 20 Jf 21 Vict. c. 3 {ante, p. 172); 27 * 28 
 Vict. t. 47, s. 2 (ante, p. 173). As to the evidence, see ante, p. 723. 
 It is no objection that the facts proved amount in law to high treason. 
 11 Sc 12 Viet. c. 12. .«. 7. 
 
 fhis offence is not triable at quarter sessions. 5 Sf 6 Tict. c. 38, 
 s. 1 (ante, p. 104). 
 
 Sect. 3. 
 attempts to injuke or alaem the queen. 
 
 Statutes. 
 
 5 (6 6 Vict. c. 51, s. 2.] — If any person shall wilfully discharge or 
 attempt to discharge, or point, aim, or present at or near to the 
 person of the Queen, any gun, pistol, or any other description of 
 lire-arms or of other arms whatsoever, whether thie same shall or 
 shall not contain any explosive or destructive material, or shall 
 discharge or cause to be discharged, or attempt to discharge or 
 cause to be discharged, any explosive substance or material near 
 to the person, of the Queen, or if any person shall wilfully strike 
 or strike at, or attempt to strike or to strike at, the person of the 
 Queen, with any offensive weapon or in any other manner what- 
 soever, or if any person shall wilfully throw or attempt to throw any 
 substance, matter or thing whatsoever, at or upon the person of the 
 Queen, with intent in any of the cases aforesaid to injure the person 
 of the Queen, or with intent in any of the cases aforesaid to break the 
 public peace, or whereby the public peace may be endangered, or with 
 intent in any of the cases aforesaid to alarm her majesty: or if any 
 person shall, near to the person of the Queen, wilfully produce or have 
 any gun, pistol, or any other description of fire-arms, or other arms 
 whatsoever, or any explosive, destructive, or dangerous matter or thing 
 whatsoever, with intent to use the same to injure the person of the 
 Queen, or to alai-m her Majesty, everv such person so offending shall 
 be guilty of a high misdemeanor, and being convicted thereof in due 
 course of law shall be liable, at the discretion of the court before 
 which the said person shall be so convicted, to be transported beyond 
 
734 Assaults, etc., on the Queen. 
 
 the seas for the term of seven years, or to be imprisoned, with or 
 ■without hard labour, for any period not exceeding three years, and 
 during the period of such imprisonment to be publicly or privately 
 whipped, as often and in such manner and form as the said court shall 
 order and direct, not exceeding thrice. 
 
 Sect. 3.] — Provided, that nothing herein contained shall be deemed 
 to alter in any respect the punishment which by law may now be 
 inflicted upon persons guilty of high treason or misprision of trea- 
 
 20 & 21 Vict. c. 3.]— Ante, p. 172. 
 
 27 d> 28 Vict. c. 47, s. 2.]— ^n«e, p. 173. 
 
 Indictment for presentiTig a Pistol at the Queen. 
 
 Commencement as ante, p. 313] — a certain pistol (" any gun, pistol, 
 or any description of fire-arms or of other arms whatsoever, whether 
 the same shall or shall not contain any explosive or destructive mate- 
 rial") which he the said J. S. in his right hand then had and held, 
 unlawfully and wilfully did point, aim, and present at [" at or near 
 to"] the person of our lady the Queen, with intent thereby then to 
 alarm our said lady the Queen; against the form [as ante, p. 347]. 
 Add other counts, varying the intent according to the terms of the 
 statute. 
 
 Misdemeanor: penal servitude for not more than seven and not less 
 than five years, or imprisonment, with or without hard labour, not 
 exceeding three years, with whipping during such imprisonment, as 
 often and in such manner as the court shall order, not exceeding 
 thrice. 6^6 Vict. c. 61, *. 2; 20 (J- 21 Vict. c. 3 {ante, p. 172); 
 27 Sf 28 Vict c. 47, s. 2 {ante, p. 173)." 
 
 This offence is not triable at quarter sessions. 5^6 Vict. c. 38, 
 s. 1 {ante, p. 104). 
 
 Evidence. 
 
 Prove that the defendant presented the pistol at or near to the 
 person of the Queen, as the case may be : and the intent as directed 
 ante, p. 208. It is immaterial whether the weapon was loaded or 
 not. 
 
 Indictment for Throwing at the Person of the Queen. 
 
 Commencement as ante, p. 313] — unlawfully and wilfully did throw 
 (" throw or attempt to throw") at (" at or upon") the person of our 
 lady the Queen, a certain substance, to wit, a certain stone {"any 
 substance, matter, or thing whatsoever"), with intent thereby then to 
 alarm our said lady the Queen; against the form [as ante, p. 347]. 
 Add counts varying the intent. 
 
 Misdemeanor. See the last precedent. 
 
 This offence is not triable at quarter sessions, h & 6 Vict. e. 38, s. 1 
 (aiiie, p. 104). 
 
Offmcei against the Foreign Enlistment Act. 735 
 
 Sect. 4. 
 offences against the foreign enlistment act. 
 
 Statute. 
 33 S 34 Vict. c. 90, s. 1.]— This act may be cited for all purposes 
 as " The Foreign Enlistment Act, 1870." 
 
 Sect. 2— Application of Act.']— Thin act shall extend to all the 
 dominions of her Majesty, including the adjacent territorial waters. 
 
 Sect, i— Penalty on Enlistment in Service of Foreign State.]— It 
 any person, without the licence of her Majesty, being a British sub- 
 ject, within or without her Majesty's dominions, accepts or agrees to 
 accept any commission or engagement in the military or naval ser- 
 vice of any foreign state at war with any foreign state at peace with 
 her Majesty, and in this act referred to as a friendly state, or whether 
 a British subject or not, within her Majesty's dominions, induces 
 any other person to accept or agree to accept any commission or 
 engagement in the military or naval service of any such foreign state 
 as aforesaid, he shall be guilty of an offence against this act, and- 
 shall be punishable by fine and imprisonment, or either of such 
 punishments, at the discretion of the court before which the offender 
 is convicted; and imprisonment, if awarded, may be either with or 
 without hard labour. 
 
 Sect. 5 — Penalty on leaving her Majesty's Dominions with Intent 
 to serve a Foreign State.] — If any person, without the licence of her 
 Majesty, being a British subject, quits or goes on board any ship 
 with a view of quitting her Majesty's dominions, with intent to 
 accept any commission or engagement in the military or naval 
 service of any foreign state at war with a friendly state, or, whether 
 a British subject or not, within her Majesty's dominions, induces 
 any other person to quit or to go on^ board any ship with a view of 
 quitting her Majesty's dominions with the like intent, he shall be 
 guilty of an offence against this act, and shall be punishable by fine 
 and imprisonment, or either of such punishments, at the discretion 
 of the court before which the offender is convicted ; and imprison- 
 ment, if awarded, may be either with or without hard labour. 
 
 Sect. 6 — Penalty on embarking Persons under false Representations 
 as to Service.] — If any person induces any other person to quit her 
 Majesty's dominions or to embark on any ship within her Majesty's 
 dominions under a misrepresentation or false representation of the 
 service in which such person is to be engaged, with the intent or in 
 order that such person may accept or agree to accept any commission 
 or engagement in the military or naval service of any foreign state 
 at war with a friendly state, he shall be guilty of an offence against 
 this act, and shall be punishable by fine and imprisonment, or 
 either of such punishments, at the discretion of the court before 
 which the offender is convicted ; and imprisonment, if awarded, may 
 be either with or without hard labour. 
 
736 Offences against the Foreign Enlistment Act. 
 
 Sect. 7 — Penalty on talcing illegally enlisted Persons on Board 
 Ship.^ - If the master or owner of any ship, without the licence of 
 her Majesty, knowingly either takes on board, or engages to take 
 on board, or has on board such ship within her Majesty's dominions 
 any of the following persons, in this act referred to as illegally 
 enlisted persons ; that is to say, 1. Any person who, being a 
 British subject within or without the dominions of her Majesty, has, 
 without the licence of her Majesty, accepted or agreed to accept any 
 commission or engagement in the military or naval service of any 
 foreign slate at war with any friendly state : 2. Any person, being 
 a British subject, who, without the licence of her Majesty, is about 
 to quit her Majesty's dominions with intent to accept any commission 
 or engagement in the military or naval service of any foreign state 
 at war with a friendly state : 3. Any person who has been induced 
 to embark under a misrepresentation or false representation of the 
 service in whicli such person is to be engaged, with the intent or in 
 order that such person may accept or agree to accept any commis- 
 sion or engagement in the military or naval service of any foreign 
 state at war with a friendly state : sijch master or owner shall be 
 guilty of an offence against this act, and the following consequences 
 shall ensue ; th^t is to say, 1. The offender shall be punishable by 
 fine and imprisonment, or either of such punishments, at the dis- 
 cretion of the court before which the offender is convicted; and 
 imprisonment, if awarded, may be either with or without hard labour: 
 and 2. Such ship shall be detained until the trial and conviction or 
 acquittal of the master or owner, and until all penalties inflicted on 
 the master or owner have been paid, or the master or owner has 
 given security for the payment of such penalties to the satisfaction 
 of two j ustices of the peace, or other magistrate or magistrates having 
 the authority of two justices of the peace : and 3. All illegally enlisted 
 persons shall immediately on the discovery of the offence be taken 
 on shore, and shall not be allowed to return to the ship. 
 
 Sect. 8 — Penalty on illegal Ship-huilding and illegal Expeditions.^ 
 — If any person within her Majesty's dominions, without the licence 
 of her Majesty, does any of the following acts ; that is to say, 1. Builds 
 or agrees to build, or causes to be built any ship with intent or know- 
 ledge, or having reasonable cause to believe that the same shall or 
 will be employed in the military or naval service of any foreign state 
 at war witli any friendly state : or 2. Issues or delivers any com- 
 mission for any ship with intent or knowledge, or having reasonable 
 cause to believe that the same shall or will be employed in the 
 military or naval service of any foreign state at war with any fiiendly 
 state : or 3. Equips any ship with intent or knowledge, or having 
 reasonable cause to believe that the same shall or will be employed 
 in the military or naval service of any foreign state at war with any 
 friendly state : or 4. Despatches, or causes or allows to be despatched, 
 any ship with intent or knowledge, or having reasonable cause to be- 
 lieve that the same shall or will be employed in the military or naval 
 service of any foreign state at war with any friendly state: such 
 person shall be deemed to have committed an offence against this 
 act, and the following consequences shall ensue: 1. The offender 
 shall be punishable by fine and imprisonment, or either of such 
 punishments, at the discretion of the court before which the offender 
 is convicted ; and imprisonment, if awai'ded, may be either with or 
 
Offences against the Foreign Enlistment Act. 737 
 
 without hard labour: 2. The ship in respect of which any such 
 offence is committed, and her equipment, shall be forfeited to her 
 Majesty : Provided that a person building, causing to be built, or 
 equipping a ship in any of the cases aforesaid, in pursuance of a con- 
 tract made before the commencement of such war as ai'oresaid, shall 
 not be liable to any of the penalties imposed by this section in respect 
 of such building or equipping if he satisfies the conditions following ; 
 (that is to say,) 1. If forthwith upon a proclamation of neutrality 
 being issued by her Majesty he gives notice to the secretary of state 
 that he is so building, causing to be built, or equipping such ship, 
 and furnishes such particulars of the contract and of any matters 
 relating to, or done, or to be done under the contract as may be 
 required by the secretary of state: 2. If he gives such security, and 
 takes and permits to be taken such other measures, if any, as the 
 secretary of state may prescribe for ensuring that such ship shall 
 not be despatched, delivered, or removed without the licence of her 
 Majesty until the termination of such war as aforesaid. 
 
 Sect. 9 — Presum.ptinn as to Evidence in case of illegal Ship.^ — 
 Where any ship is built by order of or on behalf of any foreign state 
 when at war with a friendly state, or is delivered to or to the order 
 of such foreign state, or any person who to the knowledge of the 
 person building is an agent of such foi-eign state, or is paid for by 
 such foreign state or such agent, and is employed in the military or 
 naval service of such foreign state, such ship shall, until the contrary 
 is proved, be deemed to have been built with a view to being so 
 employed, and the burden shall lie on the builder of such ship of 
 proving that he did not know that the ship was intended to be so 
 employed in the military or naval service of such foreign state. 
 
 Sect. 10 — Penalty on aiding the Warlike Equipment of Foreign 
 Ships.] — If any person within the dominions of her Majesty, and 
 without the licence of her Majesty, by adding to the number of the 
 guns, or by changing' those on board for other guns, or by the ad- 
 dition of any equipment for war, increases or augments, or procures 
 to be increased or augmented, or is knowingly concerned in increasing 
 or augmenting the warlike force of any ship which at the time of her 
 being within the dominions of her Majesty was a ship in the military 
 or naval service of any foreign state at war with any friendly state, 
 such person shall be guilty of an offence against this act, and shall 
 be punishable by fine and imprisonment, or either of such punish- 
 ments, at the discretion of the court before which the offender is 
 convicted ; and imprisonment, if awarded, may be either with or 
 without hard labour. 
 
 Sect. 11 — Penalty on fitting out Naval or Military Expeditions 
 without Licence.'] — If any person within the limits of her Majesty's 
 dominions, and without the licence of her Majesty, prepares or fits 
 out any naval or military expedition to proceed against the domi- 
 nions of any friendly state, the following consequences shall ensue ; 
 1. Every person engaged in such preparation or fitting out, or as- 
 sisting therein, or employed in any capacity in such expedition, shall 
 be guilty of an offence against this act, and shall be punishable by 
 fine and imprisonment, or either of such punishments, at the discre- 
 tion of the court before which the offender is convicted ; and im- 
 prisonment, if awarded, may be either with or without hai'd labour. 
 
738 Offences against the Foreign Enlistment Act. 
 
 2. All ships, and their equipments, and all arms and munitions of war 
 used in or forming part of such expedition, shall be forfeited to her 
 Majesty. 
 
 Sect. 12 — Punishment of Accessories. '\ — ^Any person who aids 
 abets, counsels, or procures the commission of any offence against 
 this act shall be liable to be tried and punished as a principal 
 offender. 
 
 Sect. 13 — Limitation of Term of Imprisonment^ — The term of im- 
 prisonment to be awarded in respect of any offence against this act 
 shall not exceed two years. 
 
 Sect. 15 — Licence hy her Majesty how granted.'] — For the purposes 
 of this act, a licence by her Majesty shall be under the sign manual 
 of her Majesty, or be signified by order in council or by proclamation 
 of her Majesty. 
 
 Sect. 16 — Jurisdiction in respect of Offences hy Persons against 
 Act.'] — Any offence against this act shall, for all purposes of and 
 incidental to the trial and punishment of any person guilty of any 
 such offence, be deemed to have been committed either in the place 
 in which the offence was wholly or partly committed, or in any place 
 within her Majesty's dominions in which the person who committed 
 such offence may be. 
 
 Sect. 17 — Venue in respect of Offences hy Persons.] — Any offence 
 against this act may be described in any indictment or other docu- 
 ment relating to such offence, in cases where the mode of trial re- 
 quires such a desci'iption, as having been committed at the place 
 where it was wholly or partly committed, or it may be averred gene- 
 rally to have been committed within her Majesty's dominions, and 
 the venue or local description in the margin may be that of the 
 county, city, or place in which the trial is held. 
 
 Sect. 18 — Power to remove Offenders for Trial.] — ^The following 
 authorities, that is to say, in the United Kingdom any judge of a 
 superior court, in any other place within the jurisdiction of any 
 British court of justice, such court, or, if there are more courts than 
 one, the court having the highest criminal jurisdiction in that place, 
 may, by warrant or instrument in the nature of a warrant in this 
 section included in the term "warrant," direct that any offender 
 charged with an offence against this act shall be removed to some 
 other place in her Majesty's dominions for trial in cases where it 
 appears to the authority granting the warrant that the removal of 
 such offender would be conducive to the,interests of justice, and any 
 prisoner so removed shall be triable at the place to which he is re- 
 moved, in the same manner as if his offence had been committed at 
 such place. Any warrant for the purposes of this section may be 
 addressed to the master of any ship or to any other person or per- 
 sons, and the person or persons to whom such warrant is addressed 
 shall have power to convey the prisoner therein named to any place 
 or places named in such warrant, and to deliver him, when arrived 
 at such place or places, into the custody of any authority designated 
 by such warrant. Every prisoner shall, during the time of his 
 removal under any such warrant as aforesaid, be deemed to be in 
 
Offences against the Foreign Enlistment Act. 739 
 
 the legal custody of the person or persons empowered to remove 
 him. 
 
 Sect. 19— Jurisdiction in respect of Forfeiture of Ships for Offences 
 against 4cJ.]— All proceedings for the condemnation and forfeiture 
 of a ship, or ship and equipment, or arms and munitions of war, in 
 pursuance of this act shall require the sanction of the secretary of 
 state or such chief executive authority as is in this act mentioned, 
 and shall be had in the Court of Admiralty, and not in any other 
 court; and the Court of Admiralty shall, in addition to any power 
 given to the court by this act, have in respect of any ship or other 
 matter brought before it in pursuance of this act all powers which it 
 has in the case of a ship or matter brought before it in the exercise 
 of its ordinary jurisdiction. 
 
 Sect. 10— Regulations as to Proceedings against the Offender and 
 against the Ship.'] — Where any offence against this act has been 
 committed by any person by reason whereof a ship, or ship and 
 equipment, or arms and munitions of war, has or have become liable 
 to forfeiture, proceedings may be instituted contemporaneously or 
 not, as may be thought fit, against the offender in any court having 
 jurisdiction of the offence, and against the ship, or ship and equip- 
 ment, or arms and munitions of war, for the forfeiture in the Court 
 of Admiralty ; but it shall not be necessary to take proceedings 
 •against the offender because proceedings are instituted for the for- 
 feiture, or to take proceedings for the forfeiture because proceedings 
 are taken against the offender. 
 
 Sect. 30 — Interpretation of Terms.'] — In this act, if not inconsistent 
 with the context, the following terms have the meanings hereinafter 
 respectively assigned to them ; that is to say, " foreign state" in- 
 cludes any foreign prince, colony, province, or part of any province 
 or people, or any person or persons exercising or assuming to exer- 
 cise the powers of government in or over any foreign country, 
 colony, province, or part of any province or people: " military ser- 
 vice" shall include military telegraphy and any other employment 
 whatever, in or in connexion with any military operation : " naval 
 service" shall, as respects a person, include service as a marine, em- 
 ployment as a pilot in piloting or directing the course of a ship of 
 war or other ship when such ship of war or other ship is being used 
 in any military or naval operation, and any employment whatever 
 on board a ship of war, transport, store ship, privateer or ship under 
 letters of marque ; and as respects a ship, include any user of a 
 ship as a transport, store ship, privateer or ship under letters of 
 marque: "United Kingdom" includes the Isle of Man, the Channel 
 Islands, and other adjacent islands: "British possession" means any 
 territory, colony, or place being part of her Majesty's dominions, 
 and not part of the United Kingdom, as defined by this act: "the 
 secretary of state" shall mean any one of her Majesty's principal 
 secretaries of state: " the governor" shall as respects India mean the 
 governor general or the governor of any presidency, and where a 
 British possession consists of several constituent colonies, mean the 
 governor general of the whole possession or the governor of any of 
 the constituent colonies, and as respects any other British possession 
 it shall mean the officer for the time being administering the govern- 
 ment of such possession; also any person acting for or in the capa^ 
 
740 Coining. 
 
 city of a governor shall be included under the term "governor:" 
 " Court of Admiralty" shall mean the High Court of Admiralty of 
 England or Ireland, the Court of Session of Scotland, or any Vice- 
 Admiralty Court within her Majesty's dominions: "ship" sliall 
 include any description of boat, vessel, floating battery, or floating 
 craft; also any description of boat, vessel, or other cralt or battery, 
 made to move either on the surface of or under water, or sometimes 
 on the surface of and sometimes under water : " building" in relation 
 to a ship shall include the doing any act towards or incidental to 
 the construction of a ship, and all words having relation to building 
 shall be construed accordingly: "equipping" in relation to a ship 
 shall include the furnishing a ship wich any tackle, apparel, furniture, 
 provisions, arms, munitions, or stores, or any other thing which is 
 used in or ahout a ship for the purpose of fitting or adapting her for 
 the sea or for naval service, and all words relating to equipping 
 shall be construed accordingly: "ship and equipment" shall inckide 
 a ship and everything in or belonging to a ship : " master" shall 
 include any person having the charge or command of a ship. 
 
 Sect. 31— Repeals Foreign Enlistment Act, 59 G. 3, c. 69. 
 
 Sect. 33 — Penalties not to extend to Persons entering into Military 
 Service in Asia.l — Nothing in this act contained shall extend or be 
 construed to extend to subject to any penalty any person who enters 
 into the military service of any prince, state, or potentate in Asia, 
 with such leave or licence as is for the time being required by law 
 in the case of subjects of her Majesty entering into the military ser- 
 vice of princes, states, or potentates in Asia. 
 
 Sect. 5. 
 coining in geneeal. 
 
 Statute. 
 
 24<6 25 Vict. c. 99, s. 28 — Venue.] — "Where any person shall tender, 
 utter, or put off any false or counterfeit coin in one county or juris- 
 diction, and shall also tender, utter, or put off any other false or 
 counterfeit coin in any other county or jurisdiction, eitlier on the day 
 of such first-mentioned tendering, uttering, or putting off, or within 
 the space of ten days next ensuing, or where two or more parsons, 
 acting in concert in different counties or jurisdictions, shall commit 
 any offence against this act, every such offender may be dealt with, 
 indicted, tried, and punished, and the offence laid and charged to 
 have been committed, in any one of the said counties or jurisdictions, 
 in the same manner in all respects as if the offence had been actually 
 and wholly committed within such one county or jurisdiction. 
 
 Sect. 29 — Proof of Coin being counterfeit. 1 — Where, upon the trial 
 of any person charged with any offence against this act, it shall be 
 necessary to prove that any coin produced in evidence against such 
 person is false or counterfeit, it shall not be necessary to prove the 
 same to be false and counterfeit by the evidence of any raoneyer or 
 
Coining. 741 
 
 other officer of her Majesty's Mint, but it shall be sufficient to prove 
 the same to be ialse or counterfeit by the evidence of any other cre- 
 dible witness. 
 
 Sect. 30— When the counterfeiting shall be coTJipZefe.J— Every offence 
 of falsely making or counterfeiting any coin, or of buying, selling, 
 receiving, paying, tendering, uttering, or putting off, or of offering 
 to buy, eell, receive, pay, utter, or put off, any false or counterfeit 
 coin, against the provisions of this act, shall be deemed to be com- 
 plete, although the coin so made or counterfeited, or bought, sold, 
 received, paid, tendered, uttered, or put off, or offered to be bought, 
 sold, received, paid, uttered, or put off, shall not be in a fit state to 
 be uttered, or the counterfeiting thereof shall not be finished or per- 
 fected. 
 
 Sect. 31— Apprehension of Offenders.] — It shall be lawful for any 
 person whatsoever to apprehend any person who shall be found com- 
 mitting any indictable offence, or any high crime and offence, or 
 crime and offence, against this act, and to convey or deliver him to 
 some peace officer, constable, or officer of police, in order to his 
 being conveyed as soon as reasonably may be before a justice of 
 the peace or some other proper officer, to be dealt with according to 
 law. 
 
 Sect. 35 — Accessories, etc.'] — In the case of every felony punishable 
 under the act, every principal in the second degree and every acces- 
 sory before the fact, shall be punishable in the same manner as the 
 principal in the first degree is by this act punishable ; and every 
 accessory after the fact to any felony punishable under this act shall 
 he liable to be imprisoned for any term not exceeding two years, 
 with or without hard labour. 
 
 Sect. 3G— Admiralty Offences.] — All indictable offences mentioned 
 in this act which shall be committed within the jurisdiction of the 
 Admiralty of England or Ireland shall be deemed to be offences 
 of the same nature and liable to the same punishments as if they 
 had been committed upon the land in England or Ireland, and may 
 be dealt with, inquired of, tried and determined in any county or 
 place in England or Ireland in which the offender shall be appre- 
 hended or be in custody, in the same manner in all respects as if the 
 same had been actually committed in that county or place, and in 
 any indictment for any such offence, or for being accessory to any 
 such offence, the venue in the margin shall be the same as if such 
 offence had been committed in such county or place, and the offence 
 itself shall be averred to have been committed " on the high seas ; " 
 and where any of the crimes and offences, or high crimes and offences, 
 mentioned in this act. shall be committed at sea, and the vessel in 
 which the same shall be committed shall be registered in Scotland, 
 or touch at any part thereof, the courts of criminal law of Scotland 
 may inquire, try and determine the same in the same manner as if 
 such crime and offence, or high crime and offence, had been com- 
 mitted in Scotland; provided that nothing herein contained shall 
 alter or affect any of the laws relating to the government of her 
 Majesty's land or naval forces. 
 
 Sect. 37 — Proof of former Convictions.]— Where any person shall 
 have been convicted of any offence against this act, or any former 
 
742 Coining. 
 
 act relating to the coin, and shall afterwards be indicted for any 
 oflFence against this act committed subsequent to such conviction, it 
 shall be sufficient in any such indictment, after charging such subse- 
 quent offence, to state the substance and effect only (omitting the 
 foi-mal part) of the indictment and conviction for the previous offence; 
 and a certificate containing the substance and effect only (omitting 
 the formal part) of the indictment and conviction for the previous 
 offence, purporting to be signed by the clerk of the court or other 
 officer having or purporting to have the custody of the recoi'ds of the 
 court where the offender was first convicted, or by the deputy of 
 such clerk or officer, shall, upon proof of the identity of the person 
 of the offender, be sufficient evidence of the previous conviction, 
 without proof of tha signature or official character or authority of the 
 person appearing to have signed the same, or of his custody or right 
 to the custody of the records of the court, and for every such certifi- 
 cate a fee of six shillings and eightpence, and no more, shall be 
 demanded or taken ; and the proceedings upon any indictment for 
 committing any offence after a previous conviction or convictions 
 shall be as follows ; (that is to say,) the offender shall, in the first 
 instance, be arraigned upon so much only of the indictment, as 
 charges the subsequent offence, and if he plead not guilty, or if the 
 court order a plea of not guilty to be entered on his behalf, the jury 
 shall be charged, in the first instance, to inquire concerning such 
 subsequent offence only ; and if they find him guilty, or if on arraign- 
 ment he plead guilty, he shall then, and not before, be asked whether 
 he had been previously convicted as alleged in the indictment, and 
 if he answer that he had been so previously convicted the court may 
 proceed to sentence him accordingly ; but if he deny that he had 
 been so previously convicted, or stand mute of malice, or will not 
 answer directly to such question, the jury shall then be charged to 
 inquire concerning such previous conviction or convictions, and in 
 such case it shall not be necessary to swear the jury again, but the 
 oath already taken by them shall for all purposes be deemed to 
 extend to such last-mentioned inquiry : provided that if upon the 
 trial of any person for any such subsequent offence such person shall 
 give evidence of his good character, it shall be lawful for the prose- 
 cutor in answer thereto to give evidence of the conviction of such 
 person for the previous offence or offences, before such verdict of 
 guilty shall be returned, and the jur}' shall inquire concerning such 
 previous conviction or convictions at the same time that they inquire 
 concerning such subsequent offence. 
 
 Sect. 38 — Fine and SMreiies.]— Whenever any person shall be con- 
 victed of any indictable misdemeanor punishable under this act the 
 court may, if it shall think fit, in addition to or in lieu of any of the 
 punishments by this act authorized, fine the offender, and require 
 him to enter into his own recognizances, and to find sureties, both or 
 either, for keepiog the peace and being of good behaviour ; and in 
 case of any felony punishable under this act, the court may, if it 
 shall think fit, require the offender to enter into his own recogni- 
 zances, and to find sureties, both or either, for keeping the peace, in 
 addition to any punishment by this act authorized ; provided that no 
 person shall be imprisoned under this clause for not finding sureties 
 for any period exceeding one year. 
 
 /Sect. 39 — Place and Mode of Imprisonment.'] — Whenever imprison- 
 
Coining. 743 
 
 ment, with or without hard labour, may be awarded for any indictable 
 offence under this act, the court may sentence the offender to be im- 
 prisoned, or to be imprisoned and kept to hard labour, in the common 
 gaol or house of correction. 
 
 Sect. iO— Solitary Confinement.'] — Whenever solitary confinement 
 may be awarded for any offence under this act, the court may direct 
 the offender to be kept in solitary confinement for any portion or 
 portions of his imprisonment, or of his imprisonment with hard 
 labour, not exceeding one month at any one time, and not exceeding 
 three months in any one year. 
 
 Sect. 42— Cosfe of Prosecutions!] — In all prosecutions for any 
 offence against this act in England, which shall be conducted under 
 the direction of the solicitors of her Majesty's treasury, the court 
 before which such offence shall be prosecuted or tried shall allow the 
 • expenses of the prosecution in all respects as in cases of felony; and 
 in all prosecutions for any such offence in England which shall not 
 be so conducted it shall be lawful for such court, in case a conviction 
 shall take place, but not otherwise, to allow the expenses of the pro- 
 secution in like manner; and every order for the payment of such 
 costs shall be made out, and the sum of money mentioned therein 
 paid and repaid, upon the same terms and in the same manner in all 
 respects as in cases of felony. 
 
 Sect. 1 — Interpretation of Terms — Current Coin — Counterfeit Coin — 
 Oriminal Possession.'] — In the interpretation of and for the purposes 
 of this act, the expression " the Queen's current gold or silver coin" 
 shall include any gold or silver coin coined in any of her Majesty's 
 mints or lawfully current, by virtue of any proclamation or otherwise, 
 in any part of her Majesty's dominions, whether within the United 
 Kingdom or otherwise ; and the expression " the Queen's copper 
 coin" shall include any copper coin and any coin of bronze or mixed 
 hietal coined in any of her Ma,jesty's mints, or lawfully current, by 
 virtue of any proclamation or otherwise, in any part of her Majesty's 
 said dominions ; and the expression " false or counterfeit coin re- 
 sembling or apparently intended to resemble or pass for any of the 
 Queen's current gold or silver coin " shall include any of the current 
 coin which shall have been gilt, silvered, washed, coloured or cased 
 over, or in any .manner altered so as to resemble or be apparently 
 intended to resemble, or pass for, any of the Queen's current coin of 
 a higher denomination; and the expression "the Queen's current 
 coin" shall include any coin coined in any of her Majesty's mints, or 
 lawfully current, by virtue of any proclamation or otherwise, in any 
 part of her Majesty's said dominions, and whether made of gold, 
 silver, copper, bronze or mixed metal; and where the having any 
 matter in the custody or possession of any person is mentioned in 
 this act, it shall include not only the having of it by himself in his 
 personal custody or possession, but also the knowingly and wilfully 
 having it in the actual custody or possession of any other person, 
 and also the knowingly and wilfully having it in any dwelling-house 
 or other building, lodging, apartment, field or other place, open or 
 inclosed, whether belonging to or occupied by himself or not, and 
 whether such matter shall be so had for his own use or benefit or for 
 that of any other person. 
 
744 Coining. 
 
 COUNTERFEITING THE GOLD AND SILVER COIN OP THE REALM. 
 
 Statute. 
 24 S 25 Viet. c..99, s. 2.] — Whosoever shall falsely make or coun- 
 terfeit any coin resembling, or apparently intended to resemble or 
 pass for, any of the Queen's current gold or silver coin, shall, in 
 England and Ireland, be guilty of felony, and in Scotland of a high 
 crime and offence, and being convicted thereof shall be liable, at tlie 
 discretion of the court, to be kept in penal servitude for life or for 
 any term not less than three years [now five years, 27 (& 28 Vict, 
 c. 47, s. 2, ante, p. 178J, or to be imprisoned for any term not exceed- 
 ing two years, with or without hard labour, and with or without 
 solitary confinement. 
 
 Indictment. 
 
 Central Criminal Court, to wit: — The jurors for our lady the 
 Queen upon their oath present, that J. S., on the first day of June, 
 
 in the year of our Lord ,ten pieces of false and counterfeit coin, 
 
 each piece thereof resembling and apparently intended to resemble 
 and pass for (" resembling or apparently intended to resemble or pass 
 for") a piece of the Queen's current gold ('^gold or silver") coin, 
 called a sovereign, falsely and feloniously did make and counterfeit 
 Q^ make or counterfeit"); against the form [as ante, ^.347]. Asia 
 the venue, see ante, pp. 26, 740. 
 
 Felony : penal servitude for life or for not less than fine [27 Sc 28 
 Vict. c. 47, s. 3, ante, p. 173] years, or imprisonment, with or with- 
 out hard labour, and with or toithout solitary confinement (such cim- 
 finement not exceeding one month at any one time, nor three months 
 in any one year, 24 ^ '2b Vict. e. 99, s. 40, ante, p. 743) not exceed- 
 ing two years. 24 Sf 25 Vict. c. 99, s. 2. As to requiring the offender 
 to enter into recognizances, and find sureties for keeping the peace, 
 Id. s. 38, ante, p. 742 
 
 This offence is not triable at quarter sessions. 5^6 Vict. c. 38, s. 1 
 (ante, p. 104). 
 
 Evidence. . 
 
 It is rarely the case that the counterfeiting can be proved directly 
 by positive evidence; it is usually made out by circumstantial evi- 
 dence, such as finding the necessary coining tools in the defendant's 
 house, together with some pieces of the counterfeit money in a 
 finished, some in an unfinished state, or such other circumstances 
 as may fairly warrant the jury in presuming that the defendant 
 either counterfeited, or caused to be counterfeited, or was present 
 aiding and abetting in counterfeiting, the coin in question. Before 
 the modern statutes which reduced the offence of coining from 
 treason to felony, if several conspired to counterfeit the Queen's coin, 
 and one of them actually did so in pursuance of the conspiracy, it 
 was treason in all, and they might all have been indicted for coun- 
 terfeiting the Queen's coin generally ; 1 Hale, 214 ; but now, only 
 the party who actually counterfeits would be the principal felon, and 
 the others accessories before the fact, although triable as principals; 
 see ante, pp. 11-14. 
 
 A variance between the indictment and the evidence, in the number 
 of the pieces of coin alleged to be counterfeited, is immaterial; but a 
 
Coining. 745 
 
 variance as to the denomination of such coin, as guineas, sovereigns, 
 shillings, etc., would be fatal, unless amended. 
 
 By the old law, the counterfeit coin produced in evidence must 
 have appeared to have that degree of resemblance to the real coin, 
 that it would be likely to be received as the coin for which it was 
 intended to pass, by persons using the caution customary in taking 
 money. In R. v. Varley, 2 W. Bl. 682 ; 1 East, P. C. 164, the de- 
 fendant had counterfeited the resemblance of a half-guinea upon a 
 piece of gold previously hammered, but it was not round, nor would 
 it pass in the condition in which it then was ; and the judges held 
 that the offence was incomplete. So, in M. v. Harris, 1 Leach, 165, 
 where the defendants were taken in the very act of coining shillings, 
 hut the shillings coined by them were then in an imperfect state, it 
 being requisite that they should undergo another process, namely, 
 immersion in diluted aqua-fortis, before they could pass as shillings; 
 the judges held that the offence was incomplete. A trifling variance 
 from the real coin, in the inscription, effigies or arms, however, did 
 not take the case out of the statute ; 1 Hale, 215 ; and although the 
 counterfeit coin was made of a different metal from the real coin, as 
 lead, tin, copper, etc., gilt or silvered over, yet it was within the mean- 
 ing of the statute, and the making of such counterfeit coin was trea- 
 son. Id. Also, where the counterfeit coin was made to resemble 
 the smooth-worn shillings then in circulation, without any impression 
 whatever upon them, the case was holden to be within the statute. 
 B. V. Wilson, Leach, 285 : R. v. Welsh, Id. 364. And now by stat. 
 24 & 25 Vict. c. 99, s. 30, the offence of counterfeiting shall be deemed 
 complete, although the coin made or counterfeited shall not be in a 
 fit state to be uttered, or the counterfeiting thereof shall not be 
 finished or perfected. 
 
 Any credible witness may prove the coin to be counterfeit, and it 
 is not necessary for this pm-pose to produce any moneyer or other 
 officer from the Mint. 24 <& 25 Vict. c. 99, s. 29. 
 
 If it become a question whether the coin which the counterfeit 
 money was intended to imitate be the Queen's coin, it is not neces- 
 saiy to produce the proclamation to prove its legitimation ; it is a 
 mere qiiestion of fact to be left to the jury upon evidence of usage, 
 reputation, etc. 1 Hale, 196, 212, 213. 
 
 It is not necessary to prove that the counterfeit coin was uttered 
 or attempted to be uttered. 1 Hale, 215, 229; 3 Inst. 16; 1 East, 
 
 P. a 165. 
 
 COLOURING, ETC., COIN. 
 
 Statute. 
 
 24 dt 25 Vict. c. 99, s. 3.] —Whosoever shall gild or silver, or shall 
 with any wash or materials capable of producing the colour or ap- 
 pearance of gold or of silver, or by any means whatsoever wash, case 
 over or colour, any coin whatsoever resembling or apparently in- 
 tended to resemble or pass for any of the Queen's current gold or 
 silver coin; or shall gild or silver, or shall, with any wash or materials 
 capable of producing the colour or appearance of gold or of silver, 
 or by any means whatsoever wash, case over or colour any piece of 
 
 W. KK 
 
746 Coining. 
 
 silver or copper, or of coarse gold or coarse silver, or of any metal or 
 mixture of metals respectively, being of a fit size and figure to be 
 coined, and with intent that the same shall be coined into false and 
 counterfeit coin resembling or apparently intended to resemble or 
 pass for any of the Queen's current gold or silver coin ; or shall gild, 
 or shall, with any wash or materials capable of producing the colour 
 or appearance of gold, or by any means whatsoever wash, case over 
 or colour any of the Queen's current silver coin, or file or in any 
 manner alter such coin, with intent to make the same resemble or 
 pass for any of the Queen's current gold coin ; or shall gild or 
 silver, or shall, with any wash or materials capable of producing 
 the colour or appearance of gold or silver, or by any means what- 
 soever wash, case over or colour any of the Queen's cm-rent copper 
 coin, or file or in any manner alter such coin, with intent to make 
 the same resemble or pass for any of the Queen's current gold or 
 silver coin, shall, in England and Ireland, be guilty of felony, and in 
 Scotland of a high crime and offence, and being convicted thereof 
 shall be liable, at the discretion of the court, to be kept in penal 
 servitude for life, or for any term not less than three years [now Jive 
 years, 27 (& 28 Vict. c. 47, s. 2, ante, p. 173], or to be imprisoned for 
 any term not exceeding two years, with or without hard labour, 
 and with or without solitary confinement. 
 
 Indictment for Colowring Coin. 
 
 Commencement as ante, p. 744] —falsely, deceitfully and feloniously 
 did gild (" gild or silver") [or wash (" hy any means whatsoever wash, 
 case over, or colour") with a certain wash (" any wash or materials") 
 capable of producing the colour and appearance of gold (" gold or 
 silver")'] a certain false and counterfeit coin resembling (" resembling 
 or apparently intended to resemble or pass for") a certain piece of the 
 Queen's current gold coin (" amy of the Queen's current gold or siher 
 coin") called a sovereign ; against the form [as ante, p. 347]. As 
 to the venue, see ante, pp. 26, 740. 
 
 Felony : penal servitude for life or for not less than fvee [27 & 28 
 Tict. c. 47, s. 2, ante, p. 173] years, or imprisonment, with or without 
 hard Vabour, and with or loithout solitary confinement (such confinement 
 not exceeding one month at any one time, nor three months in any one 
 year, 24 (& 25 Vict. c. 99, s. 40, ante, p. 743) not exceeding two years. 
 — 24 cfc 25 Vict. c. 99, s. 3. As to requiring the offender to enter into 
 recognizances and find sureties for keeping the peace. Id. s. 38. amte. 
 p.U2. 
 
 This offence is not triable at quarter sessions. 5 S 6 Vict. c. 38, 
 s. 1 (ante, p. 104). < 
 
 Evidence. 
 Prove the gilding, etc., "or colom-ing, as stated in the indictment. 
 Where the defendant was apprehended in the act of making counter- 
 feit shillings, by steeping round blanks, composed of brass and silver, 
 in aqua-fortis, none of which were finished, but exhibited the appear- 
 ance of tead, though by rubbing they readily acquired the appearance 
 of silver, and would pass current ; it was doubted whether this was 
 within the late act, but the judges held the conviction to be right. 
 R. V. Case, 1 Leach, 145 ; 1 East, P. C. 165. In another case a doubt 
 was expressed whether an immersion of a mixture, composed of silver 
 and base metal, into agua-fortis, which draws the silver to the sur- 
 face, was a colouring within the repealed statutes, and whether they 
 
Coining. 747 
 
 ■were not intended to apply only to a colouring produced by a super- 
 ficial application. R. v. Lavey, 1 Leach, 153; 1 East, P. C. 166. 
 But these cases were decided upon the statutes 8 <6 9 TF. 3, c. 26, and 
 15 G. 2, c. 28; and the words " capable of producing" seem to have 
 been introduced into the recent statutes for the purpose of obviating 
 the doubt. Moreover, the present statute adds the general words 
 " or by any means whatsoever." Where a wash or material is alleged 
 to have been used by the defendant, it must be shown either from 
 the application by the defendant, or from an examination of their 
 properties, that they are capable of producing the colour of gold or 
 silver. But an indictment, charging the use of such material, will 
 be supported by proof of a colouring with gold itself. R. v. Twmer, 
 2 Mood, a a 41. 
 
 Indietment for Colouring Metal, etc. 
 
 Commencement as ante, p. 744] ^falsely, deceitfully, and feloniously 
 did gild (" gild or silver") [or wash (". hy any means whatsoever wash, 
 case over, or colour") with a certain wash (" any wash or materials") 
 capable of producing the colour and appearance of gold (" gold or 
 silver")'] ten pieces of silver (^' any piece of silver or copper, or of 
 coarse gold, or coarse silver, or of any metal or mixture of metals"), 
 each piece thereof being respectively of a fit size and figure to be 
 coined, and with intent that each of the said pieces of silver respec- 
 tively should be coined into false and counterfeit coin resembling 
 (" resembling or apparently intended to resemble or pass for") a piece 
 of the Queen's current gold coin, called a sovereign ; against the 
 form [_as ante, p. 347]. 
 
 Fehny: 24 Sc 25 Vict, c- 99, s. 3. See the last precedent. The 
 statute applies also to the gilding or colouring of any silver coin, with 
 intent to make the same resemble or pass for gold coin, and to gilding 
 or colouring any copper coin, v>ith intent to make the same resemble or 
 pass for gold or silver coin. And an indictment charging the gilding 
 of sixpences " with materials capable of producing the colour of gold" 
 is good, a/nd is supported by proof of colouring sixpences with gold. 
 R. V. Tuner, 2 Mood. C. C. il. ' 
 
 This offence is not triable at quarter sessions. 6 Sj" 6 Vict. c. 38, 
 s. 1 {ante, p. 104). 
 
 Evidence. 
 
 Prove the colouring, etc., as in the last case, and the intent as 
 stated in the indictment. For this purpose it may be proved that 
 the defendant had the instruments for coining, or that other counter- 
 feit money was found in his possession, or otlier circumstances may 
 be given in evidence from which the jury may infer the intent. (See 
 amte,p. 208.) 
 
 Indictment for Filing or Altering Coin. 
 
 Commencement as ante, p. 744] —ten pieces of the Queen's current 
 silver coin, called sixpences, falsely, deceitfully, and feloniously did 
 file Q'Jile or in any manner alter"), with intent to make each of the 
 said pieces respectively resemble (" resemble or pass for") a piece of 
 the Queen's current gold coin called a half-sovereign ; against the 
 form [as ante, p. 347]. 
 
 kk2 
 
748 Coh 
 
 Felony: 24 Sf 23 Vict, c 99, s. 3. See fhe last precedent hut ove. 
 The statute also applies to the filing or altering any of the Queens 
 copper money, with intent to make the same resemble or pass for any 
 of the Queen's current gold or silver coin. 
 
 This offence is not triable at quarter sessions. 5^6 Fici. c. 38, 
 s. 1 {ante, p. 104). 
 
 Evidence. 
 Prove the filing and altering as stated in the indictment, and the 
 intent by circumstances fi-om which it may be inferred by the jury. 
 (Secoraie,^. 208.) 
 
 IMPAIRING, ETC., GOLD AND SILVER COIN. 
 
 Statute. 
 24 <6 25 Vict. c. 99, s. 4.] — Wlosoever shall impair, diminish, or 
 lighten any of the Queen's current gold or silver coin, with intent 
 that the coin so impaired, diminished, or lightened, may pass for the 
 Queen's current gold or silver coin, shall, iu England and Ireland, 
 be guilty of felony, and in Scotland of a high crime and offence, and 
 being convicted thereof shall be liable, at the discretion of the court, 
 to be kept in penal servitude for any term not exceeding fourteen 
 years, and not less than three years \now five years, 27 & 28 Vict, 
 c. 47, s. 2, ante, p. 173], or to be imprisoned for any term not exceed- 
 ing two years, with or without hard labour, and with or without 
 soKtary confinement. 
 
 Sect. 5 — Unlawful possession of Filings and Clippings of Gold or 
 Silver Coin.] —Whosoever shall unlawfully have in his custody or 
 possession any filings or clippings, or any gold or silver bullion, or 
 any gold or silver in dust, solution or otherwise, which shall have 
 been produced or obtained by impairing, diminishing, or lightening 
 any of the Queen's current gold or silver coin, knowing the same to 
 have been so produced or obtained, shall, in England and Ireland, be 
 guilty of felony, and in Scotland of a high crime and offence, and 
 being convicted thereof shall be liable, at the discretion of the court, 
 to be kept in penal servitude for any term not exceeding seven years, 
 and not less than three years [now five years, 27 <& 28 Vict. c. 47, s. 2, 
 ante p. 173], or to be imprisoned for any term not exceeding two 
 years, with or without hard labour, and with or without solitary 
 confinement. 
 
 Indictment. 
 
 Commmcememt as ante, p. 744] — ten pieces of the Queen's current 
 gold {^'■gold or silver") coin, called sovereigns, falsely, deceitfully, 
 and feloniously did impair (" impair, diminish, or lighten") with in- 
 tent that each of the said pieces so impaired [diminished and light- 
 ened] might pass for >» piece of the Queen's current gold (" gold or 
 silver") coin called a sovereign ; against the form [as ante, p. 347]. 
 As to the venue, see ante, pp. 26, 740. 
 
 Felony : penal servitude for not more than fourteen and not less 
 than five [27 c6 28 Vict. c. 47, s. 2, ante, p. 173] years, or impi-ison- 
 
Coining. 749 
 
 ment, with or without hard . labour, and with or without solitary con- 
 finement (such confinement not exceeding one month at any one time, nor 
 three months in any one year, 24 <& 25 Vict. c. 99, s. 40), not exceeding 
 two years. 24 (& 25 Vict. c. 99, s. 4. As to requiring the offender to 
 enter into recognizances and find sureties for keeping the peace, Id. 
 s. 38, ante, p. 742. 
 
 Evidence. 
 
 Prove the impairing, etc., by direct or presumptive evidence, as 
 that the defendant was in possession of filings of impaired coin, or 
 of the instruments for filing. Prove, also, the intent by evidence 
 fi-om which it may be inferred by the jury; as, for instance, that the 
 defendant attempted to pass the coin, or had passed other coin so 
 impaired, or that he carried it about him mixed with other money, 
 particularly if it was not so impaired as apparently to affect its cur- 
 rency. 
 
 DEFACING COIN. 
 
 Statute. 
 
 24 <& 25 Vict. c. 99, s. 16.]— Whosoever shall deface any of the 
 Queen's current gold, silver, or copper coin, by stamping thereon 
 any names or words, whether such coin shall or shall not be thereby 
 diminished or lightened, shall, in England and Ireland, be guilty of 
 a misdemeanor, and in Scotland of a crime and offence, and being 
 convicted thereof shall be liable, at the discretion of the court, to 
 be imprisoned for any term not exceeding one year, with or without 
 hard labour. 
 
 Sect. 17 — Defaced Coin not legal Tender — Prosecution.] — No tender 
 of payment in money made in any gold, silver, or copper coin so 
 defaced by stamping, as in the last preceding section mentioned, 
 shall be allowed to be a legal tender; and whosoever shall tender, 
 utter, or put off any coin so defaced, shall, on conviction thereof be- 
 fore two justices, be liable to forfeit and pay any sum not exceeding 
 forty shillings : provided that it shall not be lawful for any person 
 to proceed for any such last-mentioned penalty, without the consent, 
 in England or Ireland, of her Majesty's attorney-general for England 
 or Ireland respectively, or in Scotland of the lord advocate. 
 
 Indictment for Defacing Coin. 
 
 Commencement as ante, p. 744] — one piece of the Queen's current 
 silver {"gold, silver, or copper") coin, called a half-crown, unlawfully 
 and wilfully did deface, by then stamping thereon certain names and 
 words (" any names or words") ; against the form [as ante, p. 347]. 
 
 Misdemeanor: imprisonment, with or without hard labour, not ex- 
 ceeding one year. 24 c6 25 Vict. c. 99, «. 16. As to fining the offender 
 and requiring him to enter into recognisances and find sureties for keep- 
 ing the peace cmd being of good behaviour, Id. s. 38, ante, p. 742. 
 
 Evidence. 
 Prove that the defendant defaced the coin in question, by stamp- 
 
760 Coining. 
 
 ing on it any names or words, or both ; and that it was done wil- 
 fully. It is not necessary to prove that the coin was thereby 
 diminished or lightened. The defaced coin is no longer a legal 
 tender, and any person uttering it is liable to a penalty not exceed- 
 ing forty shillings, which however cannot be proceeded for without 
 the consent of the attorney-general or lord advocate. 24 & 25 Vict. 
 c. 99, s. 17. 
 
 BUYING OR SELLING, ETC., COUNTERFEIT COIN AT A LOWER VALUE. 
 
 Statute. 
 24 & 25 Vict. c. 99, s. 6.] — Wbosoever, without lawful authority 
 or excuse (the proof whereof shall lie on the party accused), shall 
 buy, sell, receive, pay or put off, or offer to buy, sell, receive, pay or 
 put off, any false or counterfeit coin resembling or apparently in- 
 tended to resemble or pass for any of the Queen's current gold or 
 silver coin at or for a lower rate or value than the same imports or 
 was apparently intended to import, shall, in England and Ireland, be 
 guilty of felony, and in Scotland of a high crime and offence, and 
 being convicted thereof shall be liable, at the discretion of the court, 
 to be kept in penal servitude for life, or for any term not less than 
 three years [now five years, 27 & 28 Vict. c. 47, s. 2, ante, p. 173], 
 or to be imprisoned for any term not exceeding two years, with or 
 without hard labour, and with or without solitary confinement ; and 
 in any indictment for any such offence as in this section aforesaid 
 it sball be sufficient to allege that the party accused did buy, sell, 
 receive, pay or put off, or did offer to buy, sell, receive, pay or put 
 off, the false or counterfeit coin at or for a lower rate or value than 
 the same imports or was apparently intended to import, without 
 alleging at or for what rate, price or value, the same was bought, 
 sold, received, paid or put off, or offered to be bought, sold, received, 
 paid or put off. 
 
 Indictment for Buying or Selling Counterfeit Coin at a lower Rate than 
 hy its Denomination it irnporis. 
 
 Commencement as ante, p. 744] — ten pieces of false and counterfeit 
 coin, each piece thereof resembling (" resembling or apparently in- 
 tended to resemble or pass for") a piece of the Queen's current gold 
 C^gold or silver") coin, called a sovereign, falsely, deceitfully and 
 feloniously and without lawful authority or excuse, did put off ("ftwy, 
 sell, receive, pay, or put off, or offer to bwy, sell, receive, pay, or put 
 off") to one J. N., at and for a lower rate and value than the same 
 did then import (" import or was apparently intended to import") ; 
 against the form \as ante, p. 347]. 
 
 As to the venue, see ante, pp. 26, 740. The indictment need not 
 state at what rate the coin was bovght, sold, etc. 
 
 Felony: penal servitude for life or for not less than five [27 ^ 28 
 Vict. c. 47, s. 2, ante, p. 173] yiars, or imprisonment, with or with- 
 out hard labour, and with or without solitary confinement {such con- 
 finement not exceeding one month at any one time, nor three months in 
 any one year, 24 ^ 25 Vict. c. 99, s. 40, ante, p. 743), not exceeding 
 two years.— li Sf 25 Vict. c. 99, s. 6. As to requiring the offender to 
 
Coining. TBI 
 
 enter into recognizances and find sm-eties for keeping the peace, Id. 
 s. 38, ante, p. 742. 
 
 This offence is not triable at quarter sessions, b Sf 6 i^ict. u. 38, 
 s. 1 {ante, p. 104). 
 
 Evidence. 
 
 Prove that the defendant put off, etc., the counterfeit coin, as men- 
 tioned in the indictment. The proof of lawful authority or excuee 
 for the act lies on the defendant. Under the repealed statute 8 <6 9 
 W. 3, c. 26, it was holden that the putting off must be complete: 
 and therefore, where the defendant laid on a table a quantity of 
 counterfeit shillings, for which he was to receive a certain sum, but 
 while the counterfeit money was being counted, and before the de- 
 fendant received the price of it, he was apprehended, it was decided 
 not to be within the act. M. v. Woohidge, 1 Leach, 307; 1 East, 
 P. C. 179. The recent act contains the words " offer to buy, sell," 
 etc., and therefore would include the case above mentioned. 
 
 It must also be proved that the coin was sold at a lower rate than 
 it imports, but the precise rate at which it was sold need not now 
 be stated in the indictment (24 S 25 Vict. c. 99, «. 6), and need not, 
 therefore, it is presumed, be proved. Before this statute the indict- 
 ment must have stated this, and the statement must have been proved 
 as laid; see B. v. Joyce, Car. Slip. 184; 3 C. (& P. 411: B. v. .~ 
 3C.d:P. 410. 
 
 IMPOETING COUNTERFEIT COIN. 
 
 Statute. 
 
 '24 c6 25 Vict. c. 99, a. 7.] — Whosoever, without lawful authority 
 or excuse (the proof whereof shall lie on the party accused), shall 
 import or receive into the United Kingdom from beyond the seas 
 any false or counterfeit coin resembling or apparently intended to 
 resemble or pass for any of the Queen's current gold or silver coin, 
 knowing the same to be false or counterfeit, shall, in England and 
 Ireland, be guilty of felony, and in Scotland of a high crime and 
 offence, and being convicted thereof shall be liable, at the discre- 
 tion of the court, to be kept in penal servitude for life or for any 
 term not less than three years [now five years, 27 S 28 Vict. c. 47, 
 s. 2, ante, p. 173], or to be imprisoned for any term not exceeding 
 two years, with or without hard labour, and with or without solitary 
 confinement. 
 
 Indictment for Importing Counterfeit Coin. 
 Commencement as ante, p. 744] — ten thousand pieces of false and 
 counterfeit coin, each piece thereof resembling (" resembling or ap- 
 pa/rewtly intemded to resemble or pass for") a piece of the Queen's cur- 
 rent silver {^^ gold or silver") coin, called a shilling, falsely, deceit- 
 fully, and feloniously, and without lawful authority or excuse, did 
 import from beyond the seas into that part of the United Kingdom 
 called England, he the said J. S., at the said time when he so im- 
 
752 Coining. 
 
 ported the said pieces of false and counterfeit coin, well knowing the 
 same to be false and counterfeit; against the form [as ante, p. 347]. 
 As to the tenue, see ante, pp. 26, 740. 
 
 Felony : 24 tfe 25 Vict. c. 99, s. 7. See the last precedent. 
 
 This offence is not triable at quarter sessions. 5 c6 6 Vict. c. 38, s. 1 
 (ante, p. 104). 
 
 Evidence. 
 Prove that the defendant imported the counterfeit coin. It would 
 seem to be no offence within this section to import from the Queen's 
 dominions beyond the seas; 1 Hawk. u. 17, s. 87; 1 East, P. C. 175; 
 because the counterfeiting there is punishable by the laws of Eng- 
 land. Prove also the defendant's guilty knowledge: for unless that 
 he averred in the indictment, and proved, it is no offence. 1 Hale, 
 128; 1 East, P. C. 175. The proof of lawM authority or excuse (if 
 any) lies on the defendant. 
 
 UTTEEING COUNTERFEIT COIN. 
 
 Statute. 
 24 <& 25 Vict. c. 99, s. 9.] — Whosoever shall tender, utter, or put 
 off any false or counterfeit coin resembling, or apparently intended 
 to resemble or pass for, any of the Queen's current gold or silver 
 coin, knowing the same to be false or counterfeit, shall, in England 
 and Ireland, be guilty of a misdemeanor, and in Scotland of a crime 
 and offence, and being convicted thereof shall be liable, at the dis- 
 cretion of the court, to be imprisoned for any term not exceeding 
 one year, with or without hard labour, and with or without solitary 
 confinement. 
 
 Sect. 10 — Uttering, accompanied hy Possession of other Counte/rfeit 
 Coin, or followed hy a Second Uttering. ~\ — Whosoever shall tender, 
 utter, or put off any false or counterfeit coin resembling, or ap- 
 parently intended to resemble or pass for, any of the Queen's cur- 
 rent gold or silver coin, knowing the same to be false or counter- 
 feit, and shall, at the time of such tendering, uttering, or putting 
 off, have in his custody or possession, besides the false or counter- 
 feit coin so tendered, uttered, or put off, any other piece of false 
 or counterfeit coin resembling, or apparently intended to resemble 
 or pass for, any of the Queen's current gold or silver coin ; or 
 shall, either on the day of such tendering, uttering or putting off, 
 or within the space of ten days then next ensuing, tender, utter, 
 or put off any false or coimterfeit coin resembling, or apparently 
 intended to resemble or pass for, any of the Queen's current gold 
 or silver coin, knowing the same to be false or counterfeit, shall, 
 in England and Ireland, be guilty of a misdemeanor, and in Scotland 
 of a crime and offence, and being convicted thereof shall be liable, 
 at the discretion of the court, to be imprisoned for any term not ex- 
 ceeding two years, with or without hard labour, and with or without 
 solitary confinement. 
 
Coining. 753 
 
 Sect. 12 — Uttering after former Conviction.^ — Whosoever, having 
 been convicted, either before or after the passing of this act, of any- 
 such misdemeanor or crime and offence as in any of the last three 
 preceding sections mentioned, or of any felony or high crime and 
 offence against this or any former act relating to the coin, shall 
 afterwards commit any of the misdemeanors or crimes and offences 
 in any of the said sections mentioned, shall, in England and Ireland, 
 be guilty of felony, and in Scotland of a high crime and offence, and 
 being convicted thereof shall be liable, at the discretion of the court, 
 to be kept in penal servitude for life, or for any term not less than 
 three years [now five years, 27 c6 28 Vict. c. 47, s. 2, amte, p. 173], or 
 to be imprisoned for any term not exceeding two years, with or with- 
 out hard labour, and with or without solitary confinement. 
 
 Indictment for Uttering Cownteifeit Coin. 
 
 Commencement as ante, p. 744] — one piece of false and counterfeit 
 coin resembling (" resembling or apparently intended to resemble or 
 pass for") a piece of the Queen's current gold Q' gold or silver") 
 coin, called a sovereign, unlawfully, falsely, and deceitfully did utter 
 (" tender, utter or put off") to one J. N., he the said J. S. at the 
 time he so uttered the said piece of false and counterfeit coin, well 
 knowing the same to be false and counterfeit; against the form 
 [as ante, p. 347]. An indictment which stated that the defendant 
 uttered a counterfeit half-crown to J. N., " knowing the same to he 
 false and counterfeit" [without any words ''^ then and there," etc-l, 
 was held sufficient. R. v. Page, i) C. df P. 756 ; -2 Mood. C. C. 219. 
 A "groat" is a sufficient description of the silver coin of the value 
 offourpence. R v. Connell, 1 C. Sc K 190. 
 
 Misdemeanor: imprisonment, with or without hard labour, and 
 with or without solitary confinement {such confinement not exceedim/ 
 one month at any one time, nor three months in any one year, 24 Sf 25 
 Vict. v. 99, 5. 40, ante. p. 743), not exceeding one year. 24 ^ 25 Vict, 
 e. 99, «. 9. As to fining the offender and requiring him to enter into 
 recognizances and find sureties for keeping the peace and being of good 
 behaviour, Id. s. 38, ante, p. 742. 
 
 Evidence. 
 
 1. Prove the tendering, uttering, or putting off the sovereign in 
 question, and prove it to be a base and counterfeit sovereign. Where 
 a good shilling was given to a Jew boy for fruit, and he put it into 
 his mouth, under pretence of trying whether it were good, and then 
 taking a bad shilling out of his mouth instead of it, returned it to the 
 prosecutor, saying that it was not good ; this (which is called ringing 
 the changes) was holden to be an uttering within the meaning of the 
 statute 16 G. 2, c. 28. R. v. Franks, 2 Leach, 736. 
 
 The giving of a piece of counterfeit coin in charity was held not 
 to be an uttering within the statute, although the party knew it to 
 be counterfeit; for that there must be some intention to defraud. 
 
 R. V. Page, 8 C. S P. 122. Sed quoere; see R. v. , 1 Cox, 250. 
 
 The giving of counterfeit coin to a woman, as the price of connexion 
 with her, was holden to be within the statute. Id. 
 
 It is an " uttering and putting off," as well as a " tendering," if 
 the counterfeit coin be offered in payment, though it be refused by 
 the person to whom it is offered. R. v. Welch, 2 Den. 78 ; 20 L. J. 
 
 K K 5 
 
754 Coining. 
 
 {M. C) 101 : see R. v. Radford, 1 Dm. 59 : R. v. Ion, 2 Dm. 475 ; 
 21 L. J. {M. C.) 166 ; ante, p. 569. 
 
 As there are no accessories in misdemeanors, all persons who are 
 engaged in the common purpose of uttering counterfeit coin, although 
 the uttering in pursuance of that common purpose be by one only of 
 such persons in the absence of the others, may be jointly convicted, 
 or any of such persons may be separately convicted, of that offence 
 of uttering. R. v. Greenwood, 2 Den. 463 ; 21 L. J. (M. C.) 127 : see 
 R. V. Surse, 2 M. & Rob. 360. Some cases, in which it had been 
 held that persons not present at the actual uttering could not be 
 convicted of it, unless they were within such a distance as to be 
 able to render assistance to the actual utterer, and which appear to 
 have deen decided without consideration of the distinction between 
 felonies and misdemeanors, as to principals and accessories (see R.^. 
 Else, R. (& R. 142 : R. v. Manners, 7 C. d P. 801 : R. v. Page and 
 Jones, 1 Russ. 82), are not law. 
 
 2. Prove that the defendant knew it to be a counterfeit sovereign 
 at the time he uttered it. This, of course, must be done by circum- 
 stantial evidence. (See ante, p. 235.) If, for instance, it be proved 
 that he uttered, either on the same day or at other times, whether 
 before or after the uttering charged, base money, either of the same 
 or a different denomination, to the same or to a different person, or 
 had other pieces of base money about him when he uttered the 
 counterfeit money in question : this will be evidence from which the 
 iury may presume a guilty knowledge. R. v. Whiley, 2 Leach, 983 : 
 "R. v. Foster, Dears. 456 ; 24 L. J. {M. C.) 134. (See ante, p. 570.) 
 
 Indictment for Uttering Counterfeit Coin, having at the same time 
 Counterfeit Coin in Possession. 
 
 The same as in the last precedent, to the words " well knowing the 
 same to be false and counterfeit." Then proceed iAas] : — And that he 
 the said J. S., at the time when he so uttered (" tender, utter, or put 
 off") the said piece of false and counterfeit coin as aforesaid, had in 
 his possession, besides the said piece of false and counterfeit coin 
 so uttered, one other piece of false and counterfeit coin resembling 
 (" resembling or apparently intended to resemble or pass for") a piece 
 of the Queen's current silver (" gold or silver") coin called a shilling; 
 against the form [^as ante, p. 347]. 
 
 Misdemeanor: imprisonment, with or without hard labour, and 
 with or without solitary confinement {such confinement not exceeding 
 one month at any one time, nor three months in any one year, 24 S^ 25 
 Vict. e. 99, s. 40, ante, p. 743), not exceeding two years. 24 if 25 Vict. 
 e. 99, s. 10. As to fining the offender and requiring him to enter into 
 recognizances and find sureties for keeping the peace and being of good 
 behaviour, Id. s. 38, ante, p. 742. 
 
 Evidence. 
 
 Prove the offence of uttering, as directed ante, p. 753 : and prove 
 that the defendant at the same time had about him one or more 
 pieces of the counterfeit money speeiiied in the indictment. The 
 guilty knowledge may reasonably be implied from the possession of 
 the other counterfeit coin. Where two persons went to a shop, and 
 one of them went in and uttered a bad piece of money, having no 
 
Coining. 755 
 
 more in her possession, and the other stayed outside the shop, having 
 other bad money, it was held that both might be convicted, the 
 uttering and the possession being joint. R. v. Slcerrit, 2C.& P. 427. 
 So, in all eases where one of two persons in company (or, as it seems, 
 apart from each other) utters counterfeit coin, and other counterfeit 
 coin is found on the other, both are guilty of the aggravated offence 
 if acting in concert, and both knowing of the possession. R. v. 
 Genish, 2 M. (& Rob. 219. See R. v. Rogers, 2 Mood. C. C. 85 : R. 
 y. Williams, C. & Mar. 259 {post, p. 768^ : R. v. Greefiwood, R. v. 
 Hwse, ante, p. 754. These cases were decided previous to the 24 & 
 25 Vict. c. 99, which by s. 1 removes all doubts on the subject by 
 enacting that " where the having any matter in the custody or pos- 
 session of any person is mentioned in this act, it shall include not 
 only the having of it by himself in his personal custody or possession, 
 but also the knowingly and wilfully having it in the actual custody 
 or possession of any other person." 
 
 Indictment for Uttering twice within Ten Days. 
 
 Proceed as in the precedent, ante,p. 753, to the words '' well knowing 
 the same to be false and counterfeit" inclusive, and then proceed 
 thusl : — And that the said J. S. afterwards, on the same day, that is 
 to say, on the said third day of August, in the year last aforesaid [^or 
 afterwards and within the space of ten days then next ensuing, to 
 wit, on the 6th day of August, in the year last aforesaid], one other 
 piece of false and counterfeit coin, resembling (" resembling or ap- 
 pa/rently intended to resemble or pass for"^ a piece of the Queen's 
 current silver {^^ gold or silver") coin, called a shilling, unlawfully, 
 falsely and deceitfully did utter (" tender, utter, or put off") to the 
 said J. N. [or to one Gr. H.], he the said J. S., at the time when he 
 so uttered the said last-mentioned piece of false and counterfeit coin, 
 well knowing the same to be false and counterfeit ; against the form 
 \a3 ante, p. 347]. The double uttering must be charged in one count 
 of the indictment. R. v. Tandy, 2 Leach, 833. See R. v. Martin, 2 
 Leach, 923. 
 
 Misdemeanor: 24 c6 25 Vict. c. 99, «. 10. See the last precedent. 
 
 On a conviction for two separate offences of uttering, in two counts, 
 one judgment for two years' imprisonment, under s. 10, would be bad. 
 R. V. Robinson, 1 Mood. C. C. 413. 
 
 Evidence. 
 
 Prove the two offences as directed ante, p. 753, and prove them to 
 have been committed on the same day, or within the space of ten 
 days according as it is alleged in the indictment. 
 
 Indictment for a subsequent Uttering after a previous Conviction, under 
 24 & 25 Vict. c. 99, s. 9, for UtteHng. 
 
 Middlesex, to wit: the jurors for our lady the Queen upon their 
 
 oath present that J. S., on the day of , a.d. 186 , one 
 
 piece of false and counterfeit coin resembling and apparently in- 
 tended to resemble and pass for a piece of the Queen's current gold 
 coin called a sovereign, unlawfully, unjustly, and deceitfully did utter 
 
756 Coining. 
 
 and put off to one J. N., he the said J. S. then knowing the same to 
 be false and counterfeit ; against the form of the statute in such case 
 made and provided. And the jurors aforesaid, upon their oath afore- 
 said, do say that heretofore and before the committing of the offence 
 hereinbefore mentioned, to wit, at the general quarter sessions of the 
 
 peace holden at , the said J. S. was in due form of law convicted on 
 
 a certain indictment against him for {he/re state the substance and effect 
 (mly (omitting the formal part) of the indictment and conviction for the 
 previous offencel- And so the jurors aforesaid, upon their oath afore- 
 said, do say that the said J. S., on the day and year first aforesaid, 
 feloniously and unlawfully did utter the said piece of false and coun- 
 terfeit coin to the said J. N., in manner and form aforesaid, and against 
 the form of the statute in such case made and provided. (2nd Count.) 
 And the jurors aforesaid, upon their oath aforesaid, do further pre- 
 sent that the said J. S. aftei-wards, to wit, on the day of , 
 
 A.D. 186 , one piece of false and counterfeit coin resembling and appa- 
 rently intended to resemble and pass for a piece of the Queen's current 
 gold coin called a sovereign, unlawfully, unjustly, deceitfully, and 
 feloniously did utter and put off to the said J. N., he the said J. S. then 
 knowing the same to be false and counterfeit; against the form of the 
 statute in such cfce made and provided. And the jurors aforesaid, upon 
 their oath aforesaid, do say that heretofore and before the committing 
 of the offence in this count mentioned, to wit, at the general quai'ter 
 
 sessions of the peace holden at , the said J. S. was in due form of 
 
 law convicted on a certain indictment against him for [here state the 
 substance and effect only (omitting the formal part) of the indictment 
 and conviction for the previous offence']. 
 
 The offence of uttering counterfeit coin is a misdemeanor (24 d> 25 
 Vict. c. 99, s. 9, ante,p. 752), but by s. 12 of the same act, ante,p. 753, 
 whosoever having been convicted either before or after the passing 
 of that act of any such misdemeanor as in the 9th, 10th or 11th 
 sections mentioned, shall afterwards commit any of the misde- 
 meanors in the said 9th, 10th or 11th sections mentioned, shall be 
 guilty of felony. The 24 <& 25 Vict. c. 99, s. 37, ante, p. 741, enacts 
 that " where any person shall have been convicted of any offence 
 against this act, or any former act relating to the coin, and shall 
 afterwards be indicted for any offence against this act committed 
 subsequent to such conviction, it shall be sufficient in any such 
 indictment, after charging such subsequent offence, to state the sub- 
 stance and effect only (omitting the formal^part) of the indictment 
 and conviction for the previous offence," etc. It seems clear from 
 this that it was intended that the subsequent offence should always 
 be first charged, and in both counts of the above form of indictment 
 that course has been adopted. The mode of framing the indictment 
 and the proceedings at the trial are regulated by s. 37 of 24 & 25 
 Vict. c. 99, which is analogous to s. 116 of 24 & 25 Vict. c. 96, and 
 the reader is referred to pp. 364, 365, ante, for an explanation of the 
 mode in which the above indictment is drawn. 
 
 To commit any of the misdemeanors mentioned in the 9th, lOih orWth 
 sections, after a conviction for any one of those offences respectively, 
 is felony : penal servitude for life or for not less than five [27 6^ 2rt 
 Vict. c. 47, s. 2, ante, p. 173 J years, or imprisonment , with or iviihout 
 hard labour, and with or without solitary confinement (such confinement 
 not exceeding one month at any one time, nor three months in any one 
 year, 24 Sc 25 Vict. c. 99, s. 40, ante. p. 743), not exceeding two years. 
 — 24 Sf 25 Vict. c. 99, s. 12. As to requiring the offender to enter 
 
Coining. 757 
 
 into recognizances and find sureties for keeping the peace, Id. s, 38, 
 ante. p. 74-2. 
 
 T/iis offence it not triable at quarter sensions. 5^6 Vict. c. 88, 
 ». 1 {anle,p 104). 
 
 Evidence. 
 Prove the subsequent offence, as directed under the last three pre- 
 cedents. Before the prisoner has pleaded guilty or is found guilty 
 of the subsequent offence, the previous conviction cannot be given in 
 evidence, 24 & 25 Vict. c. 99, s. 37, ante, p. 741. R. v. Martin, L. R., 
 1 C. C. R. 214; 39 L. J. (M. C.) 31, overruling on this point an un- 
 reported decision of Lush, J., at the Leeds Spring Assizes, 1867, 
 mentioned in Arch. Cr. PL 700 (IGth ed.), and R. v. Goodwin, 10 Cox, 
 b3i,per Mellor, J. If the prisoner pleads guilty, or is found guilty, 
 of the subsequent offence, prove the former conviction in manner 
 directed by 24 & 25 Vict. c. 99, s. 37 (^ante, p. 741), and the identity 
 of the prisoner. The course of proceedings at the trial as to arraign- 
 ment, etc., is also regulated by that section. R. v. Martin, uhi 
 supra. 
 
 HAVING IN POSSESSION THREE OR MORE PIECES OP COUNTERFEIT 
 COIN. 
 
 Statute. 
 
 24 d 25 Vict. c. 99, s. 11.] — Whosoever shall have in his custody 
 or possession three or more pieces of false or counterfeit coin re- 
 sembhng, or apparently intended to resemble or pass for, any of the 
 Queen's current gold or silver coin, knowing the same to be false or 
 counterfeit, and with intent to utter or put off the same or any of 
 them, shall, in England and Ireland, be guilty of a misdemeanor, 
 and in Scotland of a crime and offence, and being convicted thereof 
 shall be liable, at the discretion of the coni-t, to be kept in penal 
 servitude for the term of three years [now five years, 27 c6 28 Vict, 
 c. 47, s. 2, ante, p. 173], or to be imprisoned for any term not exceed- 
 ing two years, with or without hard labour, and with or without 
 solitary confinement. 
 
 Indictmmt. 
 
 Commencement as ante, p. 744] — unlawfully, falsely and deceitfully 
 had in his custody and possession four pieces of false and counterfeit 
 coin, resembling (" resembling or apparently intended to resemble or 
 pass for") the Queen's current silver (-^ gold or silver") coin, called 
 shillings, with intent to utter (" tender, utter, or put off") the said 
 pieces of false and counterfeit coin, he the said J. S. then well know- 
 ing the said pieces of false and counterfeit coin to be false and coun- 
 terfeit; against the form [^as ante, p. 347]. 
 
 Misdemeanor: penal servitude for five [27 Sc 28 Vicf. c. 47, s. 2, 
 ante, p. 173] years, or imprisonment, with or without hard labour, 
 and with or without solitary confinement (such confinement not ex- 
 ceeding one month at any one time, nor three months in any one year, 
 24 iSc 25 Vict. c. 99, s. 40, ante, p. 743), not exceeding two years. 
 24 Sf 25 Vict. c. 99, s. 11. As to fining the offender and requiring 
 
758 Coining 
 
 him to enter into recognizances and find sureties for keeping the peace 
 and being of good behaviour. Id. s. 38, ante, p. 742. This offence, 
 after a previous conviction for the like offince, or for any of the 
 misdemeanors mentioned in ss. 9 and 10, or for any felony against 
 24 Sj- 25 Vict. c. 99, or any former act relating to the coin, is felony; 
 penal servitude for life or for not lens than five [27 ^ 28 Vict. c. 47, 
 s. 2, ante. p. 173] years, or imprisonment not exceeding two years. 
 24 ^ 25 Vict. c. 99, s. 12. [An indictment for that offence may he 
 easily framed from this and the last precedent-l As to requiring the 
 offender to enter into recognizances and find sureties for keeping the 
 peace, 24 Sj- 25 Vict. c. 99, s. 38, ante, p. 742. 
 
 Evidence. 
 
 Prove that the defendant had in his custody or possession three or 
 more pieces of counterfeit gold or silver coin. They will be deemed 
 to be in his custody or possession if he have them in his personal 
 custody or possession, or knowingly and wilfully have them in the 
 actual custody or possession of any other person, or knowingly and 
 wilfully have them in any dwelling-house or other building, lodging, 
 apartment, field, or other place, open or enclosed, whether belong- 
 ing to or occupied by himself or not, and whether they be had for 
 his own use or benefit, or for that of another. 24 d: 25 Vict. c. 99, 
 s. 1 {ante, p. 743). So, also, when pieces of counterfeit coin are 
 found on one of two persons acting in guilty concert, and both 
 knowing of the possession, both are guilty under this section. R. 
 V. Rogers, 2 Mood. C. C. 86: R. v. WiUiam.s, C. & Mar. 259 (see 
 ante, p. 155). Prove also the defendant's knowledge that the coin 
 was counterfeit, and his intent to utter it. These, of course, can 
 only be proved by circumstances; as, for instance, by evidence of 
 former utterings; or by the fact of the defendant's having in his pos- 
 session a large quantity of counterfeit coin of like date, and made in 
 the same mould, wrapped up in separate papers, and distributed in 
 different pockets of his dress. R. v. Jarvis, Dears. 552'; 25 L. J. 
 {M. C.) 30 : see R. v. Fuller, R. & R. 308. 
 
 At common law, it was no offence to have possession of counter- 
 feit coin with intent to utter it; R. v. Steward, R. & R. 288: R. v. 
 Heath, Id. 184; but to procure it with that intent was a misdemeanor. 
 R. V. Fuller, R. & R. 308 : see R. v. Roberts, Bears. 539 ; 25 L. J. 
 (M. C.) 17 (post,p. 760). And proof that the defendant was the coiner 
 was an answer to the charge for the common law misdemeanor for 
 procuring ; 1 Russ. 48 ; but this would not be so under the present 
 statute. 
 
 MAKING, ETC., COINING TOOLS. 
 
 Statute. 
 
 24 <& 25 Vict. c. 99, s. 24.]— Whosoever, without lawflil authority 
 or excuse (the proof whereof shall lie on the party accused), shall 
 knowingly make or mend, or begin or proceed to make or mend, or 
 buy or sell, or have in his custody, or possession, any puncheon, 
 counter-puncheon, matrix, stamp, die, pattern or mould, in or upon 
 which there shall be made or impressed, or which will make or im- 
 
Coining. 759 
 
 press, or which shall be adapted and intended to make or impress 
 the figure, stamp, or apparent resemblance of both or either of the 
 sides of any of the Queen's current gold or silver coin, or of any coin 
 of any foreign prince, state or country, or any part or parts of both 
 or either of such sides; or shall make or mend, or begin or proceed 
 to make or mend, or shall buy or sell, or have in his custody or pos- 
 session any edger, edging or other tool, collar, instrument or engine 
 adapted and intended for the marking of coin round the edges with 
 letters, grainings or other marks or figures apparently resembling 
 those on the edges of any such coin as in this section aforesaid, 
 knowing the same to be so adapted and intended as aforesaid ; or 
 shall make or mend, or begin or proceed to make or mend, or shall 
 buy or sell, or have in his custody or possession, any press for coin- 
 age, or any cutting engine for cutting by force of a screw, or of any 
 other contrivance, round blanks out of gold, silver, or other metal or 
 mixture of metals, or any other machine [a galvanic lattery is a 
 machine laithin this section; R. v. Gover, 9 Cox, 282], knowing such 
 press to be a press for coinage, or knowing such engine or machine 
 to have been used, or to be intended to be used, for or in order to 
 the false making or counterfeiting of any such coin as in this section 
 aforesaid ; shall in England and Ireland be guilty of felony, and in 
 Scotland of a high crime and offence, and being convicted thereof 
 shall be liable, at the discretion of the court, to be kept in penal 
 servitude for life, or for any term not less than three years [now five 
 years, 27 <& 28 Vict. c. 47, s. 2, ante, p. 173] , or to be imprisoned for 
 any term not exceeding two years, with or without hard labom*, and 
 with or without solitary confinement. 
 
 Indictment for making, etc., a Puncheon, etc., for Coining, 
 
 Commencement as ante, p. 744]— one puncheon (" any puncheon, 
 counter-puncheon, matrix, stamp, die, pattern or mould") in and upon 
 which there was then made and impressed (" in or upon which there 
 shall he made or impressed, or which will mahe or impress, or which 
 sliall he adapted and intended to mahe or impress") the figure Q'' figure, 
 stamp, or apparent resemhlance ") of one of the sides ("0/ hoth or 
 either of the sides, or any part or parts of hoth or either of such sides") 
 that is to say, the head side of a piece of the Queen's current silver 
 ("gold or silver") coin, commonly called a shilling', knowingly, 
 falsely, deceitfully, and feloniously, and without lawful authority or 
 excuse, did make (" make or mend, or begin or proceed to make or 
 mend, or huy or sell"); against the form [as ante, p. 347]. As to the 
 venue, see ante, pp. 26, 740. 
 
 Felony : penal servitude for life or for not less than five [27 <6 28 
 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment, with or without 
 hard labour, amd with or vnthout solitoury confimement (such confinement 
 not exceeding one month at any one time, nor three months in any one 
 year,2i: & 25 Vict. c. 99, s. 40, ante, p. 743), not exceeding two years. 
 24 (& 25 Vict. c. 99, «. 24. As to requiring the offender to enter into 
 recognizances and find sureties for keeping the peace. Id. s. 38, ante, 
 p. 742. 
 
 These offences are not triable at qua/rter sessions. 5 <& & Vict. c. 38, 
 s. 1 (ante, p. 104). 
 
 Evidence. 
 
 Prove that the defendant made, etc., a puncheon, etc., as stated in 
 the indictment ; and prove that the instrument in question is a pun- 
 
760 Coining. 
 
 cheon or other instrument described in the indictment, and included 
 in the statute. The words in the statute " upon which there shall be 
 made or impressed," etc., apply to the puncheon, which being convex, 
 bears upon it the figure of the coin; and the words " which will make 
 and impress," etc., apply to the counter-puncheon, etc., which, being 
 concave, will make and impress. However, although it is more 
 accurate to describe the instruments according to their actual use, 
 they may be described either way. R. v. Lennard, 1 Leach, 85; 1 
 East, P. C. 170. It is not necessary that the instrument should be 
 capable of making an impression of the whole of one side of the coin; 
 for the words, " or any part or parts," etc., are introduced into this 
 statute, and consequently the difficulty in R. v. Sutton, 2 Str. 1074, 
 where the instrument was capable of making the sceptre only, cannot 
 now occur. And on an indictment for making a mould " intended to 
 make and impress the figure and apparent resemblance of the obverse 
 side" of a shilling, it is sufficient to prove that the prisoner made the 
 mould, and a part of the impression, though he had not completed the 
 entire impression. R. v. Foster, 1 C. &P. 495. It is not necessary 
 to prove, under this branch of the statute, the intent of the defend- 
 ant ; the mere similitude is treated by the legislature as evidence of 
 the intent ; neither is it essential to show that money was actually 
 made with the instrument in question. R. v. Ridgeley, 1 East, P. C. 
 171, 172. The proof of lawful authority or excuse (if any) for the 
 act lies on the defendant. 
 
 Where the defendant employed a die-sinker to make, for a pre- 
 tended innocent purpose, a die calculated to make shillings; and the 
 die-sinker, suspecting fraud, informed the authorities at the Mint, 
 and under their directions made the die for the purpose of detecting 
 the prisoner; it was held, that the die-sinker was an innocent agent, 
 and the defendant was rightly convicted as a principal under 2 W. 4, 
 c. 34, s. 10. R. V. Bannon, 2 Mood. C. C. 309 ; \ C. <& K. 295. 
 
 The making and procuring dies and other materials, with intent to 
 use them in coining Peruvian half-dollars in England, not in order to 
 utter them here, but by way of trying whether the appai'atus would 
 answer before sending it out to Peru, to be there used in making the 
 counterfeit coin for circulation in that country, was held to be an in- 
 dictable misdemeanor at common law. R. v. Roberts, Dears. 539 ; 
 25 L. J. {M. C.) 17 {see ante, p. 2). 
 
 Indictment for having a Pwncheon, etc., in Possession. 
 
 Proceed as in the last precedent to the asterish ", and then thus} : — 
 knowingly, falsely, deceitfully, and feloniously, and without lawful 
 authority or excuse, had in his custody and possession; against the 
 form las ante, p. 347]. An indictment which charged that the de- 
 fendant feloniously had in his possession a mould, " upon which said 
 mould was made and impressed the figure and apparent resemhlance" 
 of the obverse side of a sixpence, was held bad on demurrer, as not 
 sufficiently showing that the impression was on the mould at the time 
 when he had it in his possession. R. v. Richmond, 1 Ctb K. 240. As 
 to the venue, see ante, pp. 26, 740. 
 
 Felony: 24 & 25 Vict. c. 99, s. 24. See the last precedent. 
 
 This offence is not triable at quarter sessions. 5 tfc 6 Vict. c. 38, s. 1 
 (ante, p. 104). 
 
Coining. 761 
 
 Evidence. 
 
 Prove the custody or possession, that is, that the defendant had 
 the instrument either in his personal custody or possession, or know- 
 ingly and wilfully had it in the actual custody or possession of any 
 other person, or knowingly and wilfully had it in some dwelling- 
 house or building, lodging, apartment, field, or other place, open or 
 enclosed, whether belonging to or occupied by himself or not, and 
 whether the instrument was had for his own use or benefit, or for 
 that of another. 24 & 25 Vict. c. 99, s. 1 {ante, p. 743); see R. 
 V. Rogers, 2 Mood. C. C. 85 (ante, p. 758). To prove the guilty know- 
 ledge, evidence may be given of the defendant's having previously 
 uttered counterfeit money. R. v. Weeks, L. &C.\%; 30 i. J. (M. C.) 
 141. It must also -be proved that the puncheon or instrument is 
 such as is specified in the indictment, and included in the statute. 
 Where the prisoner was indicted for having in his possession a mould 
 on which was impressed a resemblance of the obverse side of a 
 shilling, it was held that, in order to convict, the jury must be satis- 
 fied, that, at the time he had it in his possession, the whole of the 
 obverse side of the shilling was impressed on the mould. R. v. 
 Foster, 1 C. & P. 494. The police, entering prisoner's house in his 
 absence, took from some persons inside a plaster of Paris mould of 
 a half-crown, part of which was still wet, after resistance on their 
 part, and an attempt by them to destroy the mould. Materials suit- 
 able for melting lead and making plaster of Paris moulds were found 
 in various parts of the house. Shortly afterwards the prisoner came 
 in. He had passed a bad half-crown thirteen days before, but there 
 was no evidence to show that it was made in the mould seized. It 
 was held, that this evidence warranted the conviction of the prisoner 
 for knowingly and without lawful excuse feloniously having in his cus- 
 tody and possession a mould on which was impressed the figure and 
 apparent resemblance of the obverse side of a half-crown. R. v. 
 Weeks, ubi supra. The lawful authority or excuse, if any, must be 
 proved by the defendant. 
 
 Indictment for making, etc., a Collar. 
 
 Commencement as ante, p. 744] — one collar (" any edger, edging or 
 other tool, collar, instrument, or engine") adapted and intended for the 
 marking of coin round the edges with grainings (" Utters, grainings, 
 or other marks or figures") apparently resembling those on the edges 
 of a piece of the Queen's current gold (" gold or silver") coin called 
 a sovereign, falsely, deceitfully, and feloniously, and without lawful 
 authority or excuse, did make (" make or mend, or begin or proceed to 
 make or mend, or buy or sell, or have in his custody or possession"), he 
 the said J. S. then well knowing the same to be so adapted and in- 
 tended as aforesaid; against the form [as ante, p. 347]. As to the 
 venue, see ante, pp. 26, 740. From this and the last precedent an 
 indictment for having possession of such tools may be easily framed 
 
 Felony : 24 Sf 25 Vict. c. 99, s. 24. See the precedent, ante, p. 759. 
 
 This offence is not triable at quarter sessions. 5^6 Vict. c. 38, s. 1 
 (ante, p. 104). 
 
 Fkidence. 
 
 The evidence upon this indictment will be the same as on the last 
 two respectively, except that it must also be proved that the defendant 
 
762 Coining. 
 
 knew the instrument to be adapted and intended for the marking of 
 coin round the edge. This was a new provision introduced into the 
 repealed statute 2 W. 4, c. 34, and was substituted for the words " not 
 of common use in any trade," in the fonner statute, upon which much 
 difficulty arose. See B. v. Moore, 2 C. <& P. 235. 
 
 Indictment for maJdng, etc., a Press, etc., for Coining. 
 
 Commencement as ante, p. 744] — one press for coinage (" any press 
 for coinage, or any cutting engine for cutting, hy force of a screw or 
 any other contrivance, rcund blanhs out of gold, silver, or other 
 metal or mixture of metals, or any other machine") falsely, deceitfully, 
 and feloniously, and without lawful authority did make (" make or 
 mend, or begin or proceed to make or mend, or buy or sell, or have in 
 his custody or possession"), he the said J. S. then well knowing such 
 press to be a press for coinage \or such engine to have been used, or 
 to be intended to be used, for and in order to the counterfeitng of 
 the Queen's current gold and silver coin] ; against the form [as ante, 
 p. 347]. As to the venue, see ante, pp. 26, 740. From this and the 
 precedent, ante, p. 760, an indictment may be easily framed for having 
 possession of a coining press iir instrument for cutting. 
 
 Felony : 24 Sj- 25 Vict. c. 99, s. 24, ante, p. 758 See the precedent, 
 ante. p. 759. 
 
 This offence is not triable at quarter sessions. 6^6 Vict. c. 38, s. 1 
 {ante, p. 104). 
 
 Evidence. 
 
 The evidence will be the same as under the last precedent. It 
 must be observed, that in this section there is no qualification appli- 
 cable to the coining press, though there is as to the cutting engine 
 in the same branch of the section. In R. v. Bell, 1 East, P. C. 169 ; 
 Fost. 430, it was holden that a coining press used to make louis d'ors 
 was not within the meaning of similar words in the statute 8 <fc 9 
 W. 3, c. 25, contrary to the opinion of Ryder, C. J., and Foster, J., in 
 which Lord Mansfield concurred ; but the present statute expressly 
 applies to instruments used or intended to be used for counterfeiting 
 any coin of " any foreign prince, state or country." 
 
 CONVEYING COINING TOOLS OR COINS OUT OP THE MINT. 
 
 Statute. 
 24 <& 25 Vict. c. 99, s. 25.] — Whosoever, without lawful authority 
 or excuse (the proof whereof shall lie on the party accused) shall 
 knowingly convey out of any of her Majesty's Mints any puncheon, 
 counter-puncheon, matrix, stamp, die, pattern, mould, edger, edging 
 or other tool, collar, instrument, press, or engine used or employed 
 in or about the coining of coin, or any useful part of any of the 
 several matters aforesaid, or any coin, bullion, metal, or mixture of 
 metals shall, in England and Ireland, be guilty of felony, and in 
 Scotland of a high crime and offence, and being convicted thereof 
 shall be liable, at the discretion of the court, to be kept in penal 
 
Coining. 763 
 
 servitude for life or for any term not less than three years [now five 
 years, 27 S 28 Vict. c. 47, s. 2, ante, p. 173], or to be imprisoned for 
 any term not exceeding two years, with or without hard labour, and 
 with or without solitary confinement. 
 
 Indictment. 
 
 Commmcement as ante, p. 744] — one puncheon (" amy pvmcheon, 
 counter-pimcheon, matrix, stamp, die, pattern, mould, edger, edging or 
 other tool, collar, instrument, press or engine, or any useful part of the 
 several matters aforesaid") used and employed in and about the coin- 
 ing of coin [or ten pieces of the Queen's current gold coin (" any 
 coin, hullion, metal, or mixture of metals"') ], without lawful authority 
 or excuse, knowingly, falsely, deceitfully, and feloniously did convey 
 out of her Majesty's Mint ; against the form [as ante, p. 347]. As to 
 the venue, see ante, pp. 26, 740. 
 
 Felony: 24 ^ 25 Vict. e. 99, s. 25. See the precedent, ante, p. 759. 
 
 This offence is not triable at quarter sessions. 5^6 Vict. c. 38, s. I 
 (ante, p. 104). 
 
 Evidence. 
 
 Prove that the defendant conveyed the article charged in the 
 indictment out of the Mint. If a tool, etc., it must be shown to be a 
 tool used in coining. The proof of lawful authority or excuse is by 
 the statute cast upon the defendant. 
 
 OTHER OrrENCES RELATING TO THE COIN. 
 
 Statute. 
 
 24 (& 25 Vict. c. 99, s. 14 — Counterfeiting Copper Coin.'\ — Whosoever 
 shall falsely make or counterfeit any coin resembling or apparently 
 intended to resemble or pass for any of the Queen's current copper 
 ■ coin ; and whosoever, without lawM authority or excuse (the proof 
 whereof shall lie on the party accused) shall knowingly make or 
 mend, or begin or proceed to make or mend, or buy or sell, or have 
 in his custody or possession, any instrument, tool, or engine adapted 
 and intended for the counterfeiting any of the Queen's current copper 
 coin ; or shall buy, sell, receive, pay, or put off, or offer to buy, sell, 
 receive, pay or put off, any false or counterfeit coin resembling or 
 apparently intended to resemble or pass for any of the Queen's cur- 
 rent copper coin, at or for a lower rate or value than the same im- 
 ports or was apparently intended to import, shall, in England and 
 Ireland, be guilty of felony, and in Scotland of a high crime and 
 offence, and being convicted thereof shall be liable, at the discretion 
 of the court, to be kept in penal servitude for any term not exceed- 
 ing seven years and not less than three years [now five years, 27 & 
 28 Vict. c.iT, s. 2, ante, p. 173], or to be imprisoned for any term not 
 exceeding two years, with or without hard labour, and with or with- 
 out solitary confinement. 
 
 Sect. 15 — Uttering Counterfeit Copper Coin."] — Whosoever shall 
 tender, utter, or put off any false or counterfeit coin resembling or 
 
764 Coining. 
 
 apparently intended to resemble or pass for any of the Queen's 
 current copper coin, knowing the same to be false or counterfeit, or 
 shall have in his custody or possession three or more pieces of false 
 or counterfeit coin resembling or apparently intended to resemble or 
 pass for any of the Queen's current copper coin, knowing the same 
 to be false or counterfeit, and with intent to utter or put off the same 
 or any of them, shall, in England and Ireland, be guilty of a misde- 
 meanox-, and in Scotland of a crime and offence, and being convicted 
 thereof shall be liable, at the discretion of the court, to be impri- 
 soned for any term not exceeding one year, with or without hard 
 labour, and with or without solitary confinement. 
 
 Sect. 13 — Uttering spurious Coin, Medals, etc., as current Coin.']— 
 Whosoever shall, with intent to defraud, tender, utter or put off^as 
 or for any of the Queen's current gold or silver coin, any coin not 
 being such current gold or silver coin, or any medal or piece of metal 
 or mixed metals, resembling in size, figure, and colour the current 
 coin as or for which the same shall be so tendered, uttered, or put 
 off, such coin, medal, or piece of metal or mixed metals so tendered, 
 uttered, or put off being of less value than the current coin as or 
 for which the same shall be so tendered, uttered, or put off, shall, in 
 England and Irelsind, be guilty of a misdemeanor, and in Scotland of 
 a crime and offence, and being convicted thereof shall be liable, at 
 the discretion of the court, to be imprisoned for any term not ex- 
 ceeding one year, with or without hard labour, and with or without 
 solitary confinement. \The defendant Jinowingly pasned as and for a 
 half-sovereign a medal of abovt the same size and colour as a half- 
 sovereign. On the obverse .tide was the Queen's head, as nn a half- 
 sovereign, hut with a different inscription. The coin itself was not 
 pnidnced to the jury, and there was no evidence as to the appearance 
 of the reverse side. It was held that there was some evidence that the 
 medal wns one, in size, figure and colour, renemhtinq a half-sovereign. 
 R. V. Robinson, L. ^ C.'mi ; .34 L. J. {M. C ) 176] 
 
 Sect. 18 — Counterfeiting Foreign Gold and Silver Coin.'] — Whoso- 
 ever shall make or counterfeit any kind of coin not being the Queen's 
 current gold or silver coin, but resembling or apparently intended 
 to resemble or pass for any gold or silver coin of any foreign prince, 
 state, or country, shall, in England and Ireland, be guilty of felony, 
 and in Scotland of a high crime and offence, and being convicted 
 thereof shall be liable, at the discretion of the court, to be kept in 
 penal servitude for any term not exceeding seven years and not less 
 than three years [now Jive years, 27 <& 28 Vict. c. 47, s. 2, ante, p. 173], 
 or to be imprisoned for any term not exceeding two years, with or 
 without hard labour, and with or without solitary confinement. 
 
 Sect. 8 — Exporting Counterfeit Coin.] — Whosoever, without lawful 
 authority or excuse (the proof whereof shall lie on the party ac- 
 cused) shall export, or put on board any ship, vessel, or boat for the 
 purpose of being exported from the United Kingdom, anj' false or 
 counterfeit coin, resembling or apparently intended to resemble or 
 pass for any of the Queen's current coin, knowing the same to be 
 false or counterfeit, shall, in England and Ireland, be guilty of a 
 misdemeanor, and in Scotland of a crime and offence, and being con- 
 victed thereof shall be liable, at the discretion of the court, to be 
 
Coining. 765 
 
 imprisoned for any term not exceeding two years, with or without 
 hai'd labour, and with or without solitary confinement. 
 
 Sect. 19 — Importing Foreign Counterfeit Coin.'] — Whosoever, with- 
 out lawful authority or excuse (the proof whereof shall lie on the 
 party accused), shall bring or receive into the United Kingdom any 
 such false or counterfeit coin, resembling or apparently intended to 
 resemble or pass for any gold or silver coin of any foreign prince, 
 state, or country, knowing the same to be false or counterfeit, shall, 
 in England and Ireland, be guilty of felony, and in Scotland of a 
 high crime and offence, and being convicted thereof shall be liable, 
 at the discretion of the court, to be kept in penal servitude for any 
 terra not exceeding seven years and not less than three years [now 
 jive years., 27 & 28 Vict. c. 47, s. 2, cmte, p. 173], or to be imprisoned 
 for any term not exceeding two years, with or without hard labour, 
 and with or without solitary confinement. 
 
 Sect. 20 — Uttering Foreign Counterfeit Coin.l — Whosoever shall 
 tender, utter, or put off any such false or counterfeit coin, resembling 
 or apparently intended to resemble or pass for any gold or silver 
 coin of any foreign prince, state, or country, knowing the same to be 
 false or counterfeit, shall, in England and Ireland, be guilty of a 
 misdemeanor, and in Scotland of a crime and offence, and being 
 convicted thereof shall be liable, at the discretion of the court, to be 
 imprisoned for any term not exceeding six months, with or without 
 hard labour. 
 
 Sect. 21 — Subsequent Offences.'] — Whosoever, having been so con- 
 victed as in the last preceding section mentioned, shall afterwards 
 commit the like offence of tendering, uttering, or putting off any 
 such false or counterfeit coin as aforesaid, knowing the same to be 
 false or counterfeit, shall, in England and Ireland, be guilty of a 
 misdemeanor, and in Scotland of a crime and offence, and being 
 convicted thereof shall be liable, at the discretion of the court, to 
 be imprisoned for any term not exceeding two years, with or without 
 hard labour, and with or without solitary confinement ; and whoso- 
 ever, having been so convicted of a second offence, shall afterwards 
 commit the like offence of tendering, uttering, or putting off any such 
 false or counterfeit coin as aforesaid, knowing the same to be false 
 or counterfeit, shall, in England and Ireland, be guilty of felony, and 
 in Scotland of a high crime and offence, and being convicted thereof 
 shall be liable, at the discretion of the court, to be kept in penal 
 servitude for life or for any term not less than three years [now five 
 years, 27 & 28 "Vict. c. 47, s. 2, anie,^. 173], or to be imprisoned for 
 any term not exceeding two years, with or without hard labour, and 
 with or without solitary confinement. 
 
 Sect. 22 — Cownterfeiting other Foreign Coin.] — Whosoever shall 
 falsely make or counterfeit any kind of coin not being the Queen's 
 current coin, but resembling or apparently intended to resemble or 
 pass for any copper coin, or any other coin made of any metal or 
 mixed metals of less value than the silver coin of any foreign prince, 
 state, or country, shall, in England and Ireland, be guilty of a mis- 
 demeanor, and in Scotland of a crime and offence, and being con- 
 victed thereof shall be liable, at the discretion of the court, for the 
 
766 Sedition and Blasphemy, etc. 
 
 first offence to be imprisoned for any term not exceeding one year, 
 and for the second offence to be kept in penal servitude for any term 
 not exceeding seven yeai-s and not less than three years [now Jive 
 years, 27 S 28 Vict. c. 47, s. 2, ante, p. 173], or to be imprisoned for 
 any term not exceeding two years, with or without hard labour, and 
 with or without solitary confinement. 
 
 Sect. 23 — Having possession of more than fine pieces of Foreign 
 Counterfeit Coin.'\ — Whosoever, without lawful authority or excuse 
 (the proof whereof shall lie on the party accused), shall have in his 
 custody or possession any greater number of pieces than five pieces 
 of false or counterfeit coin, resembling or apparently intended to 
 resemble or pass for any gold or silver coin of any foreign prince, 
 state, or country, or any such copper or other coin as in the last pre- 
 ceding section mentioned, shall, on conviction thereof before any 
 justice of the peace, forfeit and lose all such false and counterfeit 
 coin, which shall be cut in pieces and destroyed by order of such 
 justice, and shall for every such offence forfeit and pay any sum of 
 money not exceeding forty shillings nor less than ten shillings for 
 every such piece of false and counterfeit coin which shall be found 
 in the custody or possession of such person, one moiety to the in- 
 former, and the other moiety to the poor of the parish where such 
 offence shall be committed; and in case any such penalty shall not 
 be forthwith paid, it shall be lawful for any such justice to commit 
 the person who shall have been adjudged to pay the same to the 
 common gaol or house of correction, there to be kept to hard labour 
 for the space of three months, or until such penalty shall be paid. 
 
 An indictment for any of the offences here enumerated may readily 
 be framed from some of the foregoing precedents. 
 
 As to the punishment of offences in relation to the coin, committed 
 in the colonies, see 16 & 17 Vict. c. 48. 
 
 Sect. 6. 
 sedition and blasphemy, etc. 
 
 Indictment for a Seditious Lihel. 
 Middlesex, to wit: — The jurors for our lord the King, upon their 
 oath present that J. H. [late of the parish of B., in the county of 
 M., clerk], being a wicked, malicious, seditious, and ill-disposed per- 
 son, and being greatly disaffected to our said lord the King, and 
 to his administration of the government of this kingdom, and the 
 dominions thereunto belonging, and wickedly, maliciously, and sedi- 
 tiously contriving, devising, and intending to stir up and excite dis- 
 contents and seditions amongst his Majesty's subjects, and to alienate 
 and withdraw the affection, fidelity, and allegiance of his said Ma- 
 jesty's subjects from his said Majesty [and cause it to be believed 
 that divers of his Majesty's innocent and desei-ving subjects had 
 been inhumanly murdered by his said. Majesty's troops, in the pro- 
 vince, colony, or plantation of the Massachusetts Bay, in New Eng- 
 land, in America, belonging to the crown of Great Britain, and 
 Unlawfully and wickedly, to seduce and encourage his Majesty's sub- 
 
Sedition and Blasphemy, etc. 767 
 
 jeots in the said province, colony or plantation, to resist and oppose 
 his Majesty's government], on the eighth day of June, in the fifteenth 
 year of the reign of our sovereign lord George the Third [with force 
 and arms, at the parish aforesaid, in the county aforesaid], wickedly, 
 maliciously, and seditiously did write and publish, and cause and 
 procure to be written and published, a certain false, wickedj mali- 
 cious, scandalous, and seditious libel, of and concerning [his said 
 Majesty's government and the employment of his troops], according 
 to the tenour and effect following: that is to say, " King's Arms 
 Tavern, Cornhill, June 7, 1775. — At a special meeting this day of 
 several members of the Constitutional Society, during an adjom-n- 
 ment, a gentleman proposed that a subscription should be immedi- 
 ately entered into by such of the members present who might ap- 
 prove the purpose, for raising the sum of one hundred pounds, to be 
 applied to the relief of the widows, orphans, and aged parents of our 
 beloved American fellow-subjects, who, faithful to the character of 
 Englishmen, preferring death to slavery, were, for that reason only, 
 inhumanly murdered by the King's (meaning his said Majesty's) 
 troops at Lexington and Concord, in the province of Massachusetts 
 (meaning the said province, colony, or plantation of the Massachu- 
 setts Bay, in New England, in America), on the nineteenth of last 
 April: which sum being immediately collected, it was thereupon re- 
 solved, that Mr. H. (meaning himself, the said J. H.) do pay to- 
 morrow into the hands of Messrs. B. & C, on account of Dr. P., the 
 said sum of one hundred pounds; and that Dr. F. be requested to 
 apply the same to the above-mentioned purpose. — J. H." (meaning 
 himself, the said J. H.); in contempt of our said lord the King, in 
 open violation of the laws of this kingdom, to the evil and pernicious 
 example of all others in the like case offending, and against the 
 peace of our lord the King, his crown and dignity. There were other 
 counts charging that the defendant '■'"printed and published, and caused 
 and procured to he printed and puhlished" in several newspapers, the 
 same libel ; and other counts, charging the printing and publishing of 
 part of the same libel, setting it out to the words, " the nineteenth of 
 liast April," inclusive; and lastly, a count charging the defendant with 
 having written and published another but similar lihel. — This was the 
 cose of B, V. Horne, Cowp. 672 ; it was in fact an information ex 
 officio ; but I have given it the shape of an indictment, to make it 
 conformable with the other precedents in the volume. The defendant 
 himself moved in arrest of judgment, and made several objections, the 
 principal of which was, that it was not averred that the employment 
 of the troops was by the King's authority ; but the court, after much 
 consideration, declared themselves clearly of opinion that th^ informa- 
 tion was sufficient. See also R. v. Burdelt, i B. 6f Aid. 314. 
 
 The punishment for a seditious lihel is fine and imprisonment. The 
 Stat. 60 Cf . 3, c. 8, «. 4, which inflicted banishment j'lrr the second offence, 
 is repealed. 1 1 6?. 4 ^ 1 TT. 4, c. 73, s. 1 . See 6 ^ 7 Vict. c. 96, post. 
 The offence of' composing, printing, or publishing blasphemous, or sedi- 
 tious, or defamatory libels, is not triable at quarter sessions. 5^6 
 Vict. e. 38, s. 1 i^ante, p. 104). 
 
 We shall now proceed to make a few observations on what is to 
 be deemed sedition, and on the form of the indictment for that 
 offence. 
 
 First, as to what is to be deemed sedition. — Sedition embraces 
 
768 Sedition and Blasphemy, etc. 
 
 all those practices, whether by word, deed, or writing, which hare 
 for their object to excite discontent or dissatisfaction, to create public 
 disturbance, or to lead to civil war; to bring into hatred or contempt 
 the sovereign or the government, the laws or constitution of the 
 realm, and generally all endeavours to promote public disorder, and 
 it is a high misdemeanor, punishable with fine and imprisonment. 
 B. V. Sullivan, M. v. PigoU, 11 Cox, 44, 45, per Fitzgerald, J. A 
 writer may, however, criticise or censure the conduct of the servants 
 of the crown or the acts of the government, — he can do it freely and 
 liberally, but it must be without malignity, and not imputing corrupt 
 or malicious motives ; he may also freely criticise the proceedings of 
 courts of justice and of individual judges. The law does not seek to 
 put any narrow construction on the expressions used, and only in- 
 terferes when plainly and deliberately the limits are passed of frank 
 and candid and honest discussion. Id. 49, 50. Political writings and 
 words may be classed under three heads : those which are overt acts 
 of treason ; those which are seditious ; and those which are allow- 
 able and justifiable. We have seen what political writings and 
 words amount to overt acts of high treason {ante, p. 723). On the 
 other hand, a man may lawfully discuss and criticise the measures 
 adopted by the Queen and her ministers for the government of the 
 country, provided he do it fairly, temperately, with decency and re- 
 spect, and without imputing to them any corrupt or improper motive. 
 See R. V. Lambert & Perry, 2 Camp. 398. All political writings and 
 words between these extremes may be deemed seditious. As, for 
 instance, if a man curse the Queen, wish her ill, give out scandalous 
 stories concerning her (see JR. v. Harvey, 2 B. & C. 257 ; 3 D. d B. 
 464), or do anything that may lessen her in the esteem of her sub- 
 jects, may weaken her government, or may raise jealousies between 
 her and her people ; or if he deny the Queen's right to the throne, 
 in common and unadvised discourse (for if it be by advisedly speak- 
 ing, it amounts to prcemunire'), all these are sedition. 4 Bl. Com, 
 423. In B. V. Tutchin (5 St. Tr. 532 ; Holt, 424), Lord Holt said, 
 that "if men shall not be called to account for possessing the 
 people with an ill opinion of the government, no government can 
 subsist; nothing can be worse to any government than to en- 
 deavom- to procure animosities as to the management of it ; this 
 has always been looked upon as a crime, and no government can 
 be safe unless it be punished." And Lord Ellenhorough, in fl. v. 
 Cohhett {Holt on Libel, 114 ; Stark, on Libel, 522), said that if a 
 publication be calculated to alienate the affections of the people, 
 by bringing the government into disesteem, whether the expedient 
 resorted to be ridicule or obloquy, the writer, publisher, etc., are 
 punishable. And whether the defendant really intended by his pub- 
 lication to alienate the aiFections of the people from the government, 
 or not, is not material ; if the publication be calculated to have that 
 effect, it is a seditious libel. B. v. Burdett, 4: B. <& Aid. 95: B. v. 
 Harvey, supra. See further as to the law relating to sedition and 
 seditious libel, B. v. Sullivan, 11 Cox, 44, 51 : B. v. Pigott, Id. 44^ 
 60. 
 
 Secondly, as to the form of the indictment. — As to the mere formal 
 part, it is sufficient to refer to the precedent, ante, p. 766. 
 
 1. The indictment must charge a publication ; composing or writ- 
 ing a libel merely does not seem to be an off^ence, unless the libel be 
 afterwards published. See R. v. Burdett, 4 B. <& Aid. 95. But if a 
 
Sedition cmd Blasphemy, etc. 769 
 
 man write a libel in the county of L., with intent to publish it, and 
 afterwards publish it in the county of M., he may, it seems, be in- 
 dicted for a misdemeanor in either county. Id., by three judges, 
 Bayley, J., duh. 
 
 2. Such part of the publication as is libellous, or as the prosecutor 
 chooses to set out, must be set out correctly. Wright v. Clements, 3 
 B. & Aid. 503: Tabart v. Tipper, 1 Camp. 352: Cartivright v. 
 Wright, \ D. & R. 230. {See ante, p. 205.) If parts of the publi- 
 cation be selected, they must be set forth thus : "In a certain part 
 
 of which said there were and are contained certain false, wicked, 
 
 malicious, scandalous, seditious, and libellous matters, of and con- 
 cerning, etc., according to the tenor and effect following ; that is to 
 
 say : And in a certain other part," etc., etc. See 1 Camp. 350. 
 
 If the libel be in a foreign language, it must be set out in such lan- 
 guage verbatim, together with a correct translation. Zenobio v. 
 Axlell, 6 T. R. 162. 
 
 3. And besides setting out the libellous passages of the publication, 
 the indictment should also contain such averments and innuendos as 
 may be necessary to render it intelligible, and its application to the 
 Queen or her government, etc., evident. When the statement of an 
 extrinsic fact is necessary in order to render the libel intelligible, or 
 to show its libellous quality, such extrinsic fact must be averred in 
 the introductory part of the indictment ; but where it is necessary 
 merely to explain a word by reference to something which has pre- 
 ceded it, this is done by an innuendo. And an innuendo can explain 
 only in cases where something already appears upon the record to 
 ground the explanation; it cannot, of itself, change, add to, or enlarge 
 the sense of expressions beyond their usual acceptation and meaning. 
 See 2 Salh. 513 ; Cowp. 684. Thus, for instance, in an action on the 
 case against a man for saying of another, " He has burnt my bam," the 
 plaintiff cannot, by way of innuendo, say " meaning my bam full of 
 com:" Barham's case, 4 Co. 20 a; because this is not an explana- 
 tion derived from anything which preceded it on the record, but from 
 the statement of an extrinsic fact which had not previously been 
 stated. But if, in the introductory part of the declaration, it had 
 been averred that the defendant had a barn full of corn, and that, in 
 a discourse about that barn, he had spoken the above words of the 
 plaintiff, an innuendo of its being a barn full of corn would have been 
 good ; for, by coupling the innuendo with the introductoiy averment, 
 it would have made it complete. So, in an action for the words " He 
 is a thief," you cannot explain the defendant's meaning in the use of 
 the word " he," by an innuendo " meaming the said plaintiff," or the 
 like, unless something appear previously upon the record to ground 
 that explanation ; but if you had previously charged the words to 
 have been spoken of and concerning the plaintiff, then such an innu- 
 endo would be correct ; for, when it is alleged that the defendant 
 said of the plaintiff " He is a thief," this is an evident ground for the 
 explanation given by the innuendo, that the plaintiff was referred to 
 by the word ''he." See 1 Rol. Abr. 83, pZ. 7, 9,b,pl. 7 ; 2 Rol. Rep. 
 244 ; Cro. Jac. 39, 126 ; 1 /SmZ. 52 ; 2 Str. 934 ; 1 Saund. 243, n. 3 : 
 Goldstein v. Foss, 9 D. <& R. 197 ; & B. <& C. 154 : Clement v. Fisher, 
 1 Man. & Ryl. 281 ; 1 B. & C. 459 : Alexander v. Angle, 1 C. & J. 
 143 : Tomlinsm v. Brittlebanh, i B. <& Adol. 630 ; 1 Nev. S M. 455 : 
 Sweetapple v. Jesse, b B. & Adol. 27 ; 2 Nev. t6 Jf. 36 : Curtis v. 
 Owrtis, 10 Bing. 447; 4, M.& Scott, 337: Slovman v. Button, 10 Bing. 
 402 ; 4:M.<& Scott, 174 : Day v. Robinson, \ A.& E. 554 ; 4 N&o. & 
 
 W. L L 
 
770 Sedition and Blasphemy, etc. 
 
 M. 884. In R. v. Tutchin, 5 St. Tr. 532, 690, one part of -the libel 
 was thus : " The mismanagements of the navy have been a greater 
 tax upon the merchants than the duties raised by parliament ;" in 
 order to explain what was meant by the navy, the introductory part 
 of the information charged the libel to have been written " of and 
 concerning the royal navy of this kingdom, and the government of 
 the said navy ;" and when, in stating the libel, it came to the word 
 " navy," it explained it by an innuendo, thus : meaning " the royal navy 
 of this kingdom :" which, being coupled with the averment in the 
 introductory part of it, made the sense and the charge complete. In 
 a. V. Matthews, 9 St. Tr. 682, the words of the libel were these : 
 " From the solemnity of the Chevalier's birth, and if hereditaiy 
 right be any recommendation, he has that to plead in his favour." 
 It was there objected — What Chevalier? who is he? what recom- 
 mendation? and to what? But in the introductory part of the in- 
 formation the libel was charged to have been written " of and con- 
 cerning the Pretender, and of and concerning liis right to the crown 
 of Great Britain;" and it was holden that the innuendos in the 
 middle of the libel, explaining the words " Chevalier, etc.," to mean 
 the Pretender, and his hereditary right to the crown of Great Britain, 
 wlien connected with the averment in the introductory part, of its 
 being written " of and concerning the Pretender, and his right to the 
 crown of Great Britain," were a sufficient explanation to make good 
 the charge. But where the words or libel are in the second person, 
 and the slander is spoken or the libel is directed to the party slan- 
 dered or libelled, and it is so alleged in the indictment — as, where 
 a declaration charges that the defendant, in a discourse with the 
 plaintiff, said to him, " You are a thief," it is unnecessary to aver that 
 they were spoken or written of and concerning the,plaintiff; nor is 
 there any need of an innuendo, for it is plain enough without it that 
 '' you" means the plaintiff. Skutt v. Hawkins, 2 Rol. Rep. 243, 244 ; 
 and see 1 Rol. A br. 85, pi. 8. 
 
 See two precedents of indictments for seditious libels, 4 Wemt. 199, 
 200. 
 
 Evidence on the part of the Prosecution. 
 
 On the Eighth day of June, etc."] — The day on which the libel is 
 alleged to have been written and published is not material, and need' 
 not be proved as laid ; but a variance between the indictment and 
 evidence, in any dates alleged and mentioned in the libel would be 
 fatal unless amended. {See ante, p. 198.) And the offence of course 
 must be proved to have been committed in the county named as the 
 venue in the margin, and in which the trial is had. If a letter con- 
 taining the libel reach the party to whom it is directed in the proper 
 county, see R. v. Johnson, 7 East, 65, even though addressed to him 
 at a place out of the county, R. v. Watson, 1 Camp. 215, or even if 
 a sealed letter, containing the libel, be put into the post-office in the 
 proper county, R. v. Burdett, 4 B. <fe AM. 95, by three judges, Bayley, 
 J., dub., it is a sufficient publication of the libel in that county : and 
 in the last case, the three judges held, that if a man write and com- 
 pose a libel in L., with intent to publish it, and afterwards publish it 
 in M., he may be indicted for a misdemeanor in either county. In 
 R. V. Watson, 1 Camp. 215, Lord Ellenborough held that the post- 
 mark of a particular place within the county, upon a letter contain- 
 ing the libel, was no evidence of a publication in that county; for the 
 post-mark might be forged. But it would seem that post-marks are 
 
Sedition and Blasphemy, etc. 771 
 
 evidence that the letters on which they are were in the office to 
 which the post-mark belongs, at the date thereby specified. See B. 
 V. Phmer, M. S R. 264: R. \. Johnson, 7 East, 65: Warrenv. Warren, 
 1 a, M. <& R. 160; 4 Tyrw. 850. 
 
 Wickedly, maliciously, amd seditiously.'] — The malice, etc., may be 
 inferred from the libel itself, without any extrinsic evidence of it. 
 B. V. Oreeoey^ IM.& Sel. 273, 282: R. v. Lord Abingdon, 1 Esp.lid: 
 Bromage v. Prosser, 4: B. <& C. 247, 255 (^ante, p. 237). So, evidence 
 of the defendant's having published other copies of the same libel, 
 Plunheit v. Cobbett, 5 Esp. 136, or other libels, R. v. Pearce, Peake, 
 75, provided they expressly refer to the subject of the libel set out 
 in the indictment, Finnerty v. Tipper, 2 Camp. 72, is receivable, in 
 order to prove the malicious or seditious intent. See Chubb v. Westley, 
 6 as P. 436. 
 
 Did write and publish, e<c.]— Upon a count charging the defendant 
 with having composed, printed and published a libel, proof that he 
 composed and published it, B. v. Williams, 2 Camp. 646, or even 
 that he only published it, R. v. Hunt, 2 Camp. 583, will be sufficient 
 to maintain the count. And proof that he composed it in the county 
 of L., and published it in the county of M., will maintain a count 
 laying the offence in the county of L. R. v. Burdett, i B. d: Aid. 
 95, Bayley, J., dub. But a publication must be proved. 
 
 The publication may be by selling the libel, distributing it gratis, 
 reading it to others (if he knew the tendency of it before), or by 
 sending it and having it delivered to another person, or even to the 
 party Ubelled by it. See Bac. Abr., Libel (B. 2); 1 Hawk. c. 73, 
 s. 11. So, evidence of the defendant's procuring another person to 
 publish the libel, is sufficient to maintain a count charging the de- 
 fendant with having published it; and therefore evidence of the libel's 
 being purchased in a bookseller's shop, or at a newspaper office, or 
 the office of a newsvendor, of a servant there, in the course of busi- 
 ness, will maintain a count charging the master with having pub- 
 lished it, 4 Bac. Abr., Libel (B. 2); R. v. Almond; 5 Burr. 2686, 
 even although it be proved that the master was not privy to it. R. 
 V. Walter, 3 Esp. 21 : R. v. Gutch, M. & M. 433 : Att.-Gen. v. Siddon, 
 IC.&J. 220. But see now the 6 <& 7 Vict. c. 96, «. 7, post. Chap. 111., 
 Sect. 6. 
 
 The delivery of a newspaper to the officer of the stamp office is a 
 sufficient publication to sustain an indictment for a libel in that 
 paper, inasmuch as the officer would at all events have an opportu- 
 nity of reading the libel himself. R. \. Amphlitt, % D. & R. 126 ; 4 
 B. A C. 35. And if the manuscript of a libel be proved to be in the 
 handwriting of the defendant, and it be also proved to have been 
 printed and published, this is evidence to go to the jury that it was 
 published by the defendant, though there be no express evidence that 
 he authorized the printing or publishing. R. v. Beare, 1 Ld. Raym. 
 414: LamVs case, 9 Rep. 59: R. v. Lovett, 2 C. <S> P. 462. 
 
 Where the libel was contained in a newspaper, and the defendant 
 was indicted for having printed and published it, the defendant might 
 formerly have been proved to be the printer, publisher or proprietor 
 of the newspaper in the mode pointed out by 6 <fe 7 1^. 4, c. 7Q, ss. 8, 
 13. These sections of that statute are however repealed by 32 <£.33 
 Vict. c. 24. 
 
 ll2 
 
772 Sedition and Blasphemy, etc. 
 
 A certain false and seditious Libel.'] — The liiiel itself must be pro- 
 duced in evidence, and must correspond in substance with the indict- 
 ment. (See am,te, p. 205.) If the libel be in a foreign language, and 
 be set out in that language, together with a translation {see ante, 
 p. 769), the translation must be proved to be correct. R. v. Peltier, 
 2 Sel. N. P. 1048. A seditious libel does not necessarily consist of 
 written or printed matter, but it may be evidenced by a woodcut or 
 engraving. JR. v. Sullivan, R. v. Pigott, 11 Cox, 44, 51. 
 
 Meaning his said Majesty."] — In strictness all the innuendos must 
 be proved by some persons acquainted with the matter of the_ libel, 
 and who can swear that they understood such and such words to mean 
 so and so, or to have reference to such and such persons, things, or 
 facts, as described by the innuendo. In many cases, however, the 
 truth of the innuendo appears so evident from the context of the 
 libel itself, that farther proof is deemed unnecessary, and it is left to 
 the jury upon a consideration of the libel alone. 
 
 Evidence for the Defemda/nt. 
 
 The defendant may prove that he did not write or publish the libel 
 at all; or he may contend that the publication is not libellous; or 
 that he was justified in publishing it. 
 
 1. He may prove that he was not concerned in the writing or pub- 
 lishing of the libel in question; and in the case of a newspaper, he 
 may prove that he is neither printer, publisher, nor proprietor of it, 
 nor otherwise interested or concerned in it, provided he have not 
 signed the affidavit deposited at the stamp office. He may also prove 
 that he was a mere innocent agent in the publication ; as, for instance, 
 that he carried and delivered the letter containing the libel, without 
 knowing its contents, or delivered one paper by mistake for another 
 (4 T. R. Vil, 128), or the like. He may also, where a presumptive 
 case of publication, by the act of any other person by his authority, 
 has been established, prove that such publication was made without 
 his authority, consent, or knowledge, and that it did not arise from 
 want of due care or caution on his part; 6 <6 7 Vict. c. 96, s. 7; but 
 the act does not say expressly whether such evidence shall be a com- 
 plete defence, or go in mitigation of punishment only. But it is not 
 competent to him to prove that a paper similar to that for the publi- 
 cation of which he is prosecuted was published on a former occasion 
 by other persons who have never been prosecuted for it. R. v. Salt, 
 5 T. R. 436 : B. v. Newmajn, \E.&B. 268. 
 
 2. He may prove that the writing in question is not libellous; and 
 for that purpose a defendant has been allowed to give in evidence 
 other passages in the same newspaper or publication, plainly refer- 
 ring to the subject of the libel in question, or fairly connected with 
 it, though disjoined from it by other matter, and in a diiferent type, 
 in order to prove that his intention was not such as was imputed to 
 him by the prosecution, or that the passage in question would not 
 fairly bear the construction attempted to be given to it. R. v. Lam- 
 hert & Perry, 2 Camp. 400. 
 
 3. He may show that he was justified in publishing the matter 
 alleged to be libellous. As, for instance, that it formed part of a 
 speech delivered by him as a member of parliament (see 4 H. 1, c. 8; 
 IW.&M. St. 2, c. 2) ; but this privilege extends only to his speaking 
 in the house ; for if he afterwards publish his speech, he is amenable 
 
Sedition and Blasphemy, etc. 773 
 
 for it in the same majiner as any other person. R. v. Creevet/, 1 M. 
 & Set 273, 282 : R. v. Lord Abingdon, 1 Esp. 226: Wasonv. Walter, 
 L. R; 4 Q. B. 73; 38 L. J. (Q. B.) 34, 45. But the publication in 
 a public newspaper of a faithful report of a debate in either house of 
 parliament is privileged, so that the publisher is not responsible for 
 defamatory statements made in the course of the debate so reported 
 and published. Wason v. Walter, L. R., 4 Q. B. 73; 38 L. J. 
 (Q. B.) 34; and the publication of articles fairly commenting upon 
 debates so reported and published is equally privileged. Id. Pre- 
 vious to the 3 (§ 4 Vict. c. 9, it was not any defence in law to an 
 action or indictment for publishing a libel, that the defamatory 
 matter is part of a document which was by order of the House of 
 Commons laid before the house, and thereupon became part of the 
 proceedings of the house, and which was afterwards, by order of the 
 house, published by the defendant: and that the house theretofore 
 resolved, declared, and adjudged, " that the power of publishing 
 such of its reports, votes, and proceedings as it shall deem neces- 
 sary, or conducive to the public interests, is an essential incident to 
 the constitutional functions of parliament, more especially to the 
 Commons' House of Parliament as the representative portion of it." 
 Stochdale v. Hansard, 9 A. & E. \; 2 Per. & D. \; hut see now 3 & 
 4 Vict. c. 9: Stochdale v. Hansard, 11 A. & E. 297; 8 P. eg i3. 346. 
 So, he may prove that the matter alleged to be libellous was con- 
 tained in a petition to parliament, and published to its members only, 
 or contained in articles of the peace, or in some other regular pro- 
 ceeding in a court of justice, 1 Hawk. c. 73, s. 8, or the like. See 
 Fairnum v. Ives, \ D. & R. 252 : R. v. Lee, 5 Esp. 123 : M'-Gregor v. 
 Thwaites, 3 S. cfe C. 24 ; 5 Dowl & Ry. 447. 
 
 So, he may prove that it is a fair report of proceedings in a court 
 ofjustice. See Lewis V. Walter, 4: B. ^ Aid. 606: Chalmers-^. Bayne, 
 2 a, M. & R. 156 : Lewis v. Levy, E. B. <& E. 537: Ryalls v. Leader, 
 L. R., 1 Exch. 296 ; 35 L. J. {Ex.) 185. The publication of the 
 history of a trial, consisting of the facts of the case, and of the law 
 of the ease, as applied to those facts, is lawiul. Counsel in the dis- 
 charge of their duty, and in matters relevant to the issue, may make 
 observations injurious to individuals; Hodgson v. Scarlett, 1 B. <& 
 Aid. 232 ; but the publication of such slanderous matter is not justi- 
 fiable, unless it be shown that it was published for the purpose of 
 giving the public information which it was fit and proper for them to 
 receive, and that it was warranted by the evidence. Flint v. Pyke, 
 6 Dowl. & R. 528 ; A:B.& C. 473. In the publication of evidence 
 given on a trial, the evidence itself, and not the result of evidence, 
 should be given. Levns v. Walter, iB.d Aid. 605. The fact that 
 the publication complained of as libellous is a fair report of pro- 
 ceedings in a court of justice must not be considered a justification 
 or excuse in all cases. For instance, in the course of a trial it may 
 become necessary for the purposes of justice to hear or read matter 
 of a scandalous, blasphemous, or indecent nature ; yet it is not lawful, 
 under the pretence of publishing that trial, to re-utter, or circulate 
 such matter. R. v. Carlile, 3 B. d Aid. 167 ; and see I M. & Sel. 
 281, ^er Bayley, J. And the same as to the reports of proceedings 
 (particularly ex parte proceedings) before magistrates. See R. v. 
 Fisher, 2 Camp. 563: -B. v. Fleet, \B.&Ald. 379: Duncan v. Thwaites, 
 5D.&R. 447 ; iB. & a 583 : hut see Lewis v. Leoy, E. B. & E. 
 587: amd Wason v. Walter, L. R., 4 Q. B. 94 ; 38 L. J. (Q. B.) 34, 
 44; where CocJehum, C. J., said, " even in quite recent days judges, 
 
774 Sedition and Blasphemy, etc. 
 
 in holding the publication of the proceedings of courts of justice 
 lawful, have thought it necessary to distinguish what are called ex 
 pm'te proceedings as a probable exception from the operation of the 
 rule. Yet ex parte proceedings before magistrates, and even before 
 this court, as, for instance, on application for criminal informations, 
 are published everyday; but such a thing as an action or indict- 
 ment founded on a report of such an ex parte proceeding is unheard 
 of, and if any such action or indictment should be brought, it would 
 probably be held that the true criterion of the privilege is not whe- 
 ther the report was or was not ex parte, but whether it was a fair 
 and honest report of what had taken place, published simply with a 
 view to the information of the public, and innocent of all intention 
 to do injury to the reputation of the party affected." It is no de- 
 fence to an action or indictment for publishing a libel in a news- 
 paper, that it is a true report of proceedings at a public meeting 
 held under a local improvement act, or the like. Davison v. XJun- 
 can, 1 E.S B. 229; 26 L.J. (Q.B.) 104: Pophara v. Pickbum,T E. 
 (& N. 891; 31 L. J. (Ex.) 133. 
 
 The defendant is in no case allowed to prove the truth of a sedi- 
 tious libel, in justification or excuse of his having published it; see 
 R. V. Burdett, 4:B.d;Ald.%; or even in extenuation of punishment. 
 R. V. Burdett, Id. 314: E. v. Ealpin, 9 B. (& C. 65. See Dmg. 387 : 
 R. V. Gramt, b B. & Ad. 1081. For the stat. 6 <6 7 Vict. c. 96, s. 6 
 {post, Chap. III., Sect. 6), which enables a defendant, in addition to 
 the plea of not guilty, to plead specially the truth of the matters 
 charged, in the manner and with the limitations therein mentioned, 
 applies to private and personal libels only. See R. v. Duffy, 2 Cox, 
 45. The publication in a newspaper of matter which is in itself a 
 seditious libel will not be excused merely on the ground that it is 
 copied from a foreign newspaper as an item of news, although this 
 is matter for the jury in considering the intention of the defendant ; 
 but they must also consider the circumstances under which the matter 
 was copied, the state of the country at the time, the class of persons 
 to whom the newspaper is addressed, and the general tone of the 
 other writings in the newspaper. R. v. Sullivan, 11 Cox, 44. 
 
 The jury may give a general verdict on the whole matter put in 
 issue, and shall not be required by the court to find the defendant 
 guilty merely on proof of the publication, and of the sense ascribed 
 to it in the indictment or information. 32 G. 3, c. 60, s. 1. 
 
 Indictment for Seditious Words. 
 
 Central Criminal Court, to wit: — The jurors for our lady the Queen 
 upon their oath present that J. S., being a wicked, malicious, seditious, 
 and evil-disposed person, and wickedly, maliciously, and seditiously 
 contriving and intending the peace of our lady the Queen and of this 
 realm to disquiet and disturb, and the liege subjects of our said lady 
 the Queen to incite and move to hati-ed and dislike of the person of 
 our said lady the Queen, and of the government established by law 
 within this realm, and to incite, move, and persuade great numbers 
 of the liege subjects of our said lady the Queen to insurrections, 
 riots, tumults and breaches of the peace, and to prevent by force and 
 arms the execution of the laws of this realm and the preservation of 
 
 the public peace, on the day of , in the year of our Lord 
 
 , in the presence and hearing of divers, to wit, 200 of the liege 
 
Sedition and BlaspJiemy, etc, lib 
 
 subjects of our said lady the Queen then assembled together, in a 
 certain speech and discourse by him the said J. S. then addressed to 
 the said liege subjects so then assembled together, as aforesaid, im- 
 lawfuUy, wickedly, maliciously, and seditiously did publish, utter, 
 pronounce, and declare with a loud voice, of and concerning the 
 government established by law within this realm, and of and concern- 
 ing our said lady the Queen and the crown of this realm, and of and 
 concerning the liege subjects of our said lady the Queen, committing 
 and being engaged in divers insurrections, riots, and breaches of the 
 public peace, amongst other words and matter, the false, wicked, 
 seditious, and inflammatory words and matter following, that is to 
 say : — " The late insurrection in Paris has shown how easily a crown 
 can be crumbled. Now is the time to be brave, now is the time to 
 be resolute, and the game's our own. I do not care for those per- 
 sons who wear other persons' clothes; I do not care if what I say is 
 criminal; I shall do all in my power during the next week to put a 
 stop to trade, and urge the Irishmen in London to a rebellion : " — in 
 contempt of our said lady the Queen, in open violation of the laws of 
 this realm, to the evil and pernicious example of all others in the 
 like case offending, and against the peace of our said lady the 
 Queen, her crown and dignity. If there be any doubt of being able 
 to prove this precise form of words, you may vary the statement in 
 different counts. 
 
 Fine and imprisonment. As to tvhat amounts to sedition, see ante, 
 p. 768. 
 
 Ojffences against the Queen's title, prerogative, person, or govern- 
 ment, are not triable at quarter sessions. 5^6 Vict. c. 38, s. 1 (ante, 
 p. 104). 
 
 Evidence. 
 
 Prove that the defendant spoke the words set out in the indict- 
 ment, or at least so much of them as may amount to an indictable 
 offence. See Cro. Jac. 407 ; Maitland v. Goldney, 2 East, 434, per 
 Lawrence, J. . Compagnon v. Martin, 2 W. Bl. 790. Any variance 
 in substance may be fatal : even where the words were set out in the 
 indictment in the third person, "Sis is," etc., and proved to have 
 been spoken in the second person, " You are," etc., the variance was 
 holden fatal; R. v. Berry, 4 T. R. 217; and where the words set out 
 imported they were spoken of a thing then present, and the words 
 were proved to have been spoken of a thing not present at the time, 
 the variance was holden to be fatal. Walters v. Mace, 2 B. d; Aid. 
 756. Prove the innuendos, as in the last precedent, and see the evi- 
 dence under the last precedent, generally. 
 
 BLASPHEMOUS LIBELS. 
 
 Statute. 
 9 d 10 W. 3, c. 32, «. 1 — Penalties.'] — Whereas many persons 
 have, of late years, openly avowed and published many blasphemous 
 and impious opinions, contrary to the doctrines and principles of the 
 Christian religion, greatly tending to the dishonotir of Almighty Grod, 
 and may prove destructive to the peace and welfare of this kingdom ; 
 wherefore, for the more effectual suppressing of the said detestable 
 crimes, be it enacted, etc., that if any person or persons, having been 
 
776 Sedition and Blasphemy, etc. 
 
 educated in, or at any time having made profession of, the Christian 
 religion within the realm, shall by writing, printing, teaching or ad- 
 vised speaking, assert or maintain there are more gods 
 
 than one, or shall deny the Christian religion to be true, or the Holy 
 Scriptures of the Old and New Testament to be of divine authority, 
 and shall, upon an indictment or information in any of his Majesty's 
 courts at Westminster, or at the assizes, be thereof lawfully convicted 
 by the oath of two or more credible witnesses, such person or per- 
 sons, for the first offence, shall be adjudged incapable and disabled 
 in law, to all intents and purposes whatsoever, to have or enjoy any 
 office or offices, employment or employments, ecclesiastical, civil or 
 military, or any part in them, or any profit or advantage appertaining 
 to them or any of them ; and if any person or persons so convicted 
 as aforesaid shall, at the time of his or their conviction, enjoy or 
 possess any office, place or employment, such office, place or em- 
 ployment shall be void, and is hereby declared void. And if such 
 person or persons shall be a second time lawfully convicted as afore- 
 said of all or any of the aforesaid crime or crimes, that then he or 
 they shall from henceforth be disabled to sue, pi-osecute, plead, or use 
 any action or information, in any court of law or equity, or to be 
 guardian of any child, or executor or administrator of any person, or 
 capable of any legacy or deed of gift, or to bear any office, civil or 
 military, or benefice ecclesiastical, for ever, within this realm, and 
 shall also suffer imprisonment for the space of three years, without 
 bail or mainprise, from the time of such conviction. 
 
 Sect. 2 — Limitation of Prosecutions.] — Provides and enacts, that 
 no person shall be prosecuted by virtue of this act, for any words 
 spoken, unless the information of such words shall be given upon 
 oath before one or more justice or justices of the peace, within four 
 days after such words spoken, and the prosecution of such offence be 
 within three months after such information. 
 
 Sect. 3 — Relief from Penalties.] — Provides and enacts, that any 
 person or persons convicted of all or any of the aforesaid crime or 
 crimes in manner aforesaid, shall, for the first offence (upon his, her 
 or their acknowledgment, and renunciation of such offence or erro- 
 neous opinions, in the same court where such person or persons was 
 or were convicted, as aforesaid, within the space of four months after 
 his, her, or their conviction), Idc discharged from all penalties and 
 disabilities incurred by such conviction ; anything in this act con- 
 tained to the contrary thereof in anywise notwithstanding. 
 
 Indictment. 
 Middlesex, to wit : — The jurors for our lady the Queen upon their 
 oath present that J. S., being a wicked and evil-disposed person, and 
 disregarding the laws and religion of the realm, and wickedly and 
 profanely devising and intending to bring the Holy Scriptures and 
 the Christian religion into disbelief and contempt among the people 
 of this kingdom, on the first day of June, in the year of our Lord 
 
 , unlawfully and wickedly did compose, print, and publish, and 
 
 cause and procure to be composed, printed, and published, a certain 
 scandalous, impious, blasphemous, and profane libel, of and concern- 
 ing the Holy Scriptures and the Christian religion, in one part of 
 which said libel there were and are contained, amongst other things, 
 
Sedition and Blasphemy, etc. 777 
 
 certain scandalous, impious, blasphemous, and profane matters and 
 things, of and concerning the Holy Scriptures and the Christian reli- 
 gion, according to the tenour and effect following, that is to say, 
 \here set out the lihellous passage ; and, if there be another such pas- 
 sage in another part of the libel, introduce it thus : and in another 
 pai-t thereof there were and are contained, amongst other things, 
 certain other scandalous, impious, blasphemous, and profane matters 
 and things, of and concerning the said Holy Scriptures and the 
 Christian religion, according to the tenour and effect following, that 
 is to say, etc., etc., and conclude the count thus'] : to the high displea- 
 sure of Almighty God, to the great scandal and reproach of the 
 Christian religion, to the evil example of all others in the like case 
 offending, and against the peace of oiur lady the Queen, her crown 
 and dignity. See the observations upon the form of an indictment for 
 libel, ante, p. 768. 
 
 Fine and imprisonment. See 9 i-J" 1 W. 3, c. 32, s. 1 ; and see R. 
 V. Carlile, 3 B. if Aid. 161 : R. v. Waddington, \ B. Sf C. 26 
 
 Blasphemy and offences against religion, and composing, printing, 
 or publishing blasphemous libels, are not triable at any quarter ses- 
 sions. 5^6 Vict. c. 38, s. 1 {ante, p. 104). 
 
 The evidence is the same as that mentioned ante, p. 770, under the 
 first precedent in this section. The disputes of learned men upon 
 particular controverted points of religion are not punishable as blas- 
 phemy. Per cur. inR. v. Woolstam, 2 Str. 834. The cases upon this 
 subject are, R. v. Atwood, Oro. Jac. 421 : -B. v. Taylor, Vent. 293 : 
 R. V. Clendon, 2 Str. 789: R. v. Hale, 1 Str. 416 : R. v. Annett, 2 
 Bum, E. L. 781 : R. v. Wilhes, 2 Stark. SI. 141 : R. v. Williams, 
 Id.: R. V. Eaton, Id. 142 : R. v. Carlile, 3 B. S Aid. 161 : R. v. 
 Waddington, X B. <& C. 26 : R. v. Taylor, 2 Stairh. SI. 143. It is 
 immaterial whether the publication be oral or written. 2 Starh. SI. 
 141. The statutes relating to blasphemy are, 1 Ed. 6, c. 1 ; 1 Eliz. 
 ec. 1,2; 12 Elis. c. 12 ; 3 Jac. 1, c. 21, s. 9 ; 9 (6 10 W. 3, c. 32 ; 53 
 G. 3, c. 160 ; but these do not alter the common law, 1 B. & C. 26. 
 
 Indictment fin- Selling an obscene Print. 
 
 Middlesex, to wit : — The jurors for our lord the King upon their 
 oath present that J. S. [late of the parish of B., in the county of M., 
 bookseller], being a scandalous and evil-disposed person, and devis- 
 ing, contriving, and intending the morals as well of youth as of divers 
 other_ liege subjects of our said lord the King to debauch and corrupt, 
 and to raise and create in their minds inordinate and lustfiil desires, 
 and the clergy of this kingdom to bring into great contempt, hatred, 
 scandal, infamy, and disgrace, on the third day of April, in the thir- 
 teenth year of the reign of our sovereign Lord George [with force 
 and arms, at the parish aforesaid, in the county aforesaid], in a certain 
 open and public shop of him the said J. S. [there situate], unlaw- 
 fully, wickedly, maliciously, and scandalously did sell and utter to 
 one J. N., a certain lewd, wicked, scandalous, and obscene print, or 
 paper, intituled " The Parson receiving Tithes in Kind," represent- 
 ing a man in the habit of a clergyman, in an obscene, impudent, and 
 indecent posture with a woman ; and which said lewd, wicked, scan- 
 dalous, and obscene print or paper is contained in a certain printed 
 pamphlet then and there uttered and sold by him the said J. S. to the 
 said J. N., intituled " The Covent Garden Magazine, or Amorous Re- 
 
 L L 5 
 
778 Unlawful Oaths. 
 
 pository, calculated solely for the Entertainment of the Polite World, 
 for April, 1773 ;" to the manifest corruption of the morals as well of 
 youth as of other liege subjects of our said lord the King, to the 
 great scandal, infamy, and disgrace of the clergy of this kingdom, in 
 contempt of our said lord the King and his laws, to the evil example 
 of all others in the like case offending, and against the peace of our 
 lord the King, his crown and dignity. 
 
 Fine or imprisonment (with or without hard labour, 14 6^ 15 Vict, 
 c. 100, s. 29, ante, p. 175), or both. See R. v. Sedley, 2 Str. 791 : 
 Ji. V. Hilt, Id. 790 : K. v. Read, Post. Rep. 98 : R. v. Curl, 2 itr. 
 788 : R. V. Wilkes, 4 Bun: 2527, 2574. See also 3 G. 4, c. 40, s. 3. 
 
 Emdence. 
 
 Give the print in evidence, and prove that J. N. purchased it of 
 the defendant, or of his servant, at his shop. 
 
 The obtaining and procuring of obscene prints, with intent to sell 
 them, is equally a misdemeanor; but the mere keeping of them with 
 that intent is not. Dugdale v. R., Dears. 64; 22 L. J. {M. C.) 50. 
 See, however, the stat. 20 <& 21 Vict. c. 83, giving summary powers for 
 the searching of houses, etc., in which obscene books, etc., are suspected 
 to be kept, and for the seizure a/nd destruction of such books, etc. 
 
 The indiscriminate publication of a pamphlet, half of which re- 
 lates to controversial questions, which are not obscene, but the other 
 half of which is obscene, as relating to impure acts and words, is a 
 misdemeanor, and proper to be prosecuted as such, although the 
 publisher does not sell the pamphlet for the purposes of gain, nor to 
 prejudice good morals, — although the indiscriminate sale of it is cal- 
 culated to have that effect, — but sells it as a member of a politico- 
 religious society, to promote the objects of that society, and to ex- 
 pose what he deems to be the errors of the Church of Rome, and 
 particularly the immorality of the confessional. R. v. Hicklin, 
 L. R., 3 Q. B. 360; 37 L. J. {M. C.) 89. 
 
 Sect. 7. 
 unlawful oaths. 
 
 Statutes. 
 37 G. 3, c. 123, s. 1 — Pimishmmt.'] — " Whereas divers wicked and 
 evil-disposed persons have of late attempted to seduce persons 
 serving in his Majesty's forces by sea or land, and others of his 
 Majesty's subjects, from their duty and allegiance to his Majesty, and 
 to incite them to acts of mutiny and sedition, and have endeavoured 
 to give effect to their wicked and traitorous proceedings, by imposing 
 upon the persons whom they have attempted to seduce the pretended 
 obligation of oaths unlawfully administered;" be it enacted, etc., that 
 any person or persons who shall, in any manner or form whatso- 
 ever, administer or cause to be administered, or be aiding or assist- 
 ing at, or present at and consenting to, the administering or taking 
 of any oath or engagement purporting or intending to bind the per- 
 son taking the same to engage in any mutinous or seditious purpose, 
 or to disturb the public peace, or to be of any association, society or 
 
Unlawful Oaths. 779 
 
 confederacy formed for any such purpose, or to obey the orders or 
 commands of any committee or body of men not lawfully constituted, 
 or of any leader or commander or other person not having authority 
 by law for that purpose, or not to inform or give evidence against 
 any associate, confederate or other person, or not to reveal or dis- 
 cover any unlawful combination or confederacy, or not to reveal or 
 discover any illegal act done or to be done, or not to reveal or dis- 
 cover any illegal oath or engagement which may have been adminis- 
 tered or tendered to or taken by such person or persons, or to or 
 by any other person or persons, or the impoxi; of any such oath or 
 engagement shall, on conviction thereof by due course of law, be 
 adjudged guilty of felony, and may be transported for any term of 
 years not exceeding seven years ; and every person who shall take 
 any such oath or engagement, not being compelled thereto, shall, on 
 conviction thereof by due course of law, be adjudged guilty of felony, 
 and may be transported for any term of yeai-s not exceeding seven 
 years. 
 
 20 & 21 Vict. c. S.'J—AnUjp. 172. 
 
 27 d 28 Vict. c. 47, s. i.}— Ante, p. 173. 
 
 37 G. 3, c. 123, s. 3 — Aiders and Abettors.']— Fersons aiding and 
 abetting at, or present at, and consenting to, the administering or 
 taking of any such oath or engagement as aforesaid, and persons 
 causing any such oath or engagement to be administered or taken, 
 though not present at the administering or taking thereof, shall be 
 deemed principal offenders, and shall be tried as such, although the 
 person or persons who actually administered such an oath or engage- 
 ment, if any such there shall be, shall not have been tried or con- 
 victed. 
 
 Sect. 4 — Form of Indictment."] — It shall not be necessary in any 
 indictment against any person or persons administering or causing 
 to be administered or taken, or taking, any such oath, or engage- 
 ment as aforesaid, or aiding, or assisting at, or present at and con- 
 senting to, the administering or taking thereof, to set forth the 
 words of such oath or engagement ; and that it shall be sufficient to 
 set forth the purport of such oath or engagement, or some material 
 part thereof. 
 
 Sect. 5 — Form of Oath.] — Any engagement or obligation whatso- 
 ever, in the nature of an oath, shall be deemed an oath within the 
 intent and meaning of this act, in whatever form or manner the 
 same shall be administered or taken; and whether the same shall be 
 actually administered by any person or persons to any other person 
 or persons, or taken by any person or persons without any adminis- 
 tration thereof by any other person or persons. 
 
 Sect. 6 — Venue.] — Any offence committed against this act on the 
 high seas or out of this realm, or within that part of Great Britain 
 called England, shall and may be prosecuted, tried and determined, 
 before any court of oyer and terminer or gaol delivery for any county 
 in that part of Great Britain called England, in such manner and 
 form as if such oflfence had been therein committed; and, if com- 
 mitted in that part of Great Britain called Scotland, shall and may 
 
780 Unlawful Oaths. 
 
 be prosecuted, tried and determined, either before the Justiciary 
 Court at Edinburgh, or in any of the circuit courts in that part of the 
 United Kingdom. 
 
 [By 57 O. 3, c. 19, s. 25, all societies, the members whereof shall 
 be required to take any oath or engagement which shall be unlawful 
 within the 37 G. 3, c. 123, or the 52 G. 3, c. 104, or to take any oath 
 not required or authorized by law, etc., are to be deemed guilty of an 
 unlawiul combination within the stat. 39 G. 3, c. 79. See R. v. 
 Dixon, ^C&P. 601.] 
 
 Indictment for Administering an Unlawful Oath. 
 
 Middlesex, to wit ;— The jurors for our lady the Queen upon their 
 oath present that J. S., on the first day of June, in the year of our 
 
 Lord , did feloniously and unlawfully administer and cause to be 
 
 administered to one J. N. a certain oath and engagement, purport- 
 ing, and then intended, to bind the said J. N. not to inform or give 
 evidence against any associate, confederate or other person of or 
 belonging to a certain unlawful association and confederacy : and 
 which said oath and engagement was then taken by the said J. N. ; 
 against the form [as ante, p 347]. If the offence have been committed 
 on the high seas, or out of the realm, or in England, the venue may be 
 laid in any county in England. 37 G. 3, c. 123, s. 6. 
 
 Felony : penal servitude for not mare than seven nor less than five 
 years. 37 G. 3, c. 123, s. 1 ; 20 ^ 21 Vict. c. 3 (ante, p. 172) ; 27 
 ^ 28 FW. c. 47, s. 2 (an<e, p. 173j. 
 
 The offence of administering or taking unlawful oaths is not triable 
 at quarter sessions. 5^6 Vict. c. 38, s. 1 (ante, p. 104). 
 
 It is not necessary to set out the words of the oath; stating the 
 purport, or some material part of it, is all that is required. 37 G. 8, 
 c. 123, s. 4. The oath described by the statute must purport or be 
 intended to bind the party taking it to one or other of the following 
 things : — viz. 1. To engage in some mutinous or seditious purpose ; 
 2. To disturb the public peace ; 3. To be of some association, society 
 or confederacy formed for any such purpose ; 4. To obey the orders 
 or commands of a committee or body of men not lawftiUy constituted, 
 or of a leader or commander or other person not having authority by 
 law for that purpose ; 5. Not to inform or give evidence against any 
 associate, confederate or other person ; 6. Not to reveal or discover 
 any unlawful combination or confederacy ; 7. Not to reveal or dis- 
 cover any illegal act done, or to be done ; 8. Not to reveal or discover 
 any illegal oath or engagement which may have been administered 
 or tendered to or taken by such person or persons, or to or by any 
 other person or persons, or the import of any such oath or engage- 
 ment. 37 G. 3, c. 123, s. 1. If the purport of the oath be doubtftil, 
 you should set it out in different ways in several counts, taking care 
 to bring it within some of the descriptions above mentioned. See 
 R. V. Moors, 6 East, 419, n. (a). 
 
 Ekidence. 
 
 Prove that J. S. administered to J. N. an oath or engagement (it is 
 no matter in what form, 37 G. 3, c. 123, s. 5 ; see R. v. Lovelass, 1 
 M. <& Rob. 349 ; 6 C. <& P. 596) of the purport stated in some one 
 count in the indictment. If read from a paper at the time it was 
 administered, still it is not necessary to produce such paper, or give 
 
Unlawful Oaths. 781 
 
 the defendant notice to produce it ; but parol evidence of its purport, 
 without such notice, will be sufficient. R. v. Moors, 6 East, 421, n. 
 So, parol evidence of any declarations made by the defendant at the 
 time he administered the oath will be received in proof of the nature 
 of the oath, if that do not sufficiently appear from the words of the 
 oath itself Id. And where it appeared that an oath was unlawfully 
 administered by an associated body of men, purporting to bind the 
 party not to reveal such unlawful combination or conspiracy, or any 
 illegal act done by them, the judges seemed to have no doubt of its 
 being a felony within this act, although it appeared that the object 
 of the association was a conspiracy to raise wages and make regu- 
 lations in a particular trade, and not to stir up mutiny or sedition. 
 B. V. Uarles, 3 East, 167 : see B. v. Bull, 6 C. d; P. 563 : M. v. Brod- 
 ribb. Id. 671. 
 
 An association, the members of which are bound by oath not to 
 disclose its secrets, is an unlawful combination and confederacy (un- 
 less expressly declared by some statute to be legal), for whatever 
 purpose or object it may be formed; and the administering an oath 
 not to reveal anything done in such association is an offence within 
 the statute 37 G. 3, c. 123, s. 1. B. v. Lovelass, 1 M. <& Bob. 349 ; 
 6C.(&P. 696. 
 
 Indictment for tahing such an Oath. 
 
 Commencement as ante, p. 780] — did feloniously and unlawfully 
 take a certain oath and engagement, purporting [etc., as in the last 
 precedent'] : he the said J. S. not being then compelled to take the 
 said oath and engagement; against the form [as amte,p. 347]. 
 
 Felony: 37 G. 3, c. 123, s. 1. See the last precedent. 
 
 This offence is not triable at quarter sessions. 5^6 Vict. c. 38, s. 1 
 (ante, p. 104). 
 
 As to the evidence, vide supra. It is not necessary to prove that 
 any person administered the oath. 37 G. 3, c. 123, s. 5. Nor is it 
 necessary for the prosecutor to prove that the defendant was not 
 compelled to take the oath ; compulsion is matter of excuse, and must 
 come in evidence from the other side. And in order to make it a 
 legal excuse, the defendant must prove that he disclosed the whole 
 affair upon oath to a magistrate (or, if a soldier or seaman, to his 
 commanding officer) within four days after, unless prevented by 
 actual force or sickness, and then within four days after such force 
 and sickness ceased. Id. s. 2. 
 
 OATHS TO COMMIT TKEASON OE FELONY. 
 
 Statutes. 
 
 52 G. 3, c. 104, s. 1.] — " Whereas an act passed in the thirty-seventh 
 year of the reign of his present Majesty, intituled ' An Act for more 
 effectually preventing the administering or taking of Unlawful 
 Oaths ;' and whereas it is expedient that more effectual provisions 
 should be made as to certain oaths ;" be it therefore enacted, that 
 every person who shall, in any manner or form whatsoever, admi- 
 
782 Unlawful Oaths. 
 
 nister, or cause to be administered, or be aiding or assisting at the 
 administering of any oath, or engagement, purporting or intending 
 to bind the person taking the same to commit any treason or murder, 
 or any felony punishable by law with death, shall, on conviction 
 thereof by due course of law, be adjudged guilty of felony, and suffer 
 death as a felon, without benefit of clergy ; and every person who 
 shall take any such oath or engagement, not being compelled thereto, 
 shall, on conviction thereof by due course of law, be adjudged guilty 
 of felony, and shall be transported as a felon for the term of his 
 natural life, or for such term of years as the court before which the 
 said offender or offenders shall be tried shall adjudge. 
 
 Sect. 7 — Venue.] — Provided, that any offence committed against 
 this act on the high seas, or out of this realm, or within that part of 
 Great Britain called England, shall and may be prosecuted, tried 
 and determined before any court of oyer and terminer or gaol de- 
 livery for any county in that part of Great Britain called England, 
 in such manner and form as if such offence had been therein com- 
 mitted ; and, if committed in that part of Great Britain called Scot- 
 land, shall and may be prosecuted, tried and detennined, either 
 before the Justiciary Court at Edinburgh, or in any of the circuit 
 courts in that part of the United Kingdom. 
 
 7 TF. 4 (6 1 Vict. c. 91, s. 1 — CormnutaHon of Punishment.'] — Recites 
 (inter alia) the 52 0. 3, c. 104, s. 1, so far as it relates to administering 
 the oaths therein mentioned, and enacts, that if any person shall, after 
 the commencement of this act, be convicted of any of the offences 
 hereinbefore mentioned, such person shall not suffer death, or have 
 sentence of death awarded against him or her for the same, but shall 
 be liable, at the discretion of the court, to be transported beyond the 
 seas for the term of the natural life of such person, or for any term 
 not less than fifteen years, or to be imprisoned for any term not 
 exceeding three years. 
 
 9 cfc 10 Vict. c. 24, s. 1.]— Ante, p. 174. 
 
 20 d; 21 Vict. c. 3.]— Ante, p. 172. 
 
 27 <& 28 Vict. c. 47, s. 2.]— Ante, p. 173. 
 
 7 TT. 4 <6 1 Vict. c. 91, s. 2 — Place and Mode of Imprisonment.'] — 
 In awarding the punishment of imprisonment for any offence punish- 
 able under this act, it shall be lawful for the court to direct such 
 imprisonment to be with or without hard labour, in the common gaol 
 or house of correction, and also to direct that the offender shall be 
 kept in solitary confinement for any portion or portions of such im- 
 prisonment, or of such imprisonment with hard labour, not exceeding 
 one month at any one time, nor three months in one year, as to the 
 court in its discretion shall seem meet. 
 
 Indictment for Administering. 
 
 Commencement as ante, p. 780] — a certain oath and engagement 
 purporting and then intended to bind the said J. N. to commit high 
 treason \or, to commit murder, that is to say, feloniously and of his 
 malice sUorethought to kill and murder one A. B., or, to commit a 
 certain felony punishable by law with death, that is to say, feloni- 
 
Inciting to Mutiny. 783 
 
 ously to set fire to a certain dwelling-house of one A. B., the said 
 A. B. being therein]; and which said oath and engagement was then 
 taken by the said J. N. ; against the form [as ante, p. 347]. 
 
 Felony: 52 O. 3, c. 104, s. 1 : penal servitude for life or for not less 
 than five years, or imprisonment not exceeding three years, 1 W. i Sf I 
 Vict. c. 91, s. 1 ; 9 ^ 10 Yict. c. 24, s. 1 (an<e, p. 174) ; 20 ^ 21 Vict, 
 c. 3 {ante, p. 172) ; 27 ^ 28 Vict. c. 47, s. 2 (ante, p. 173) ; the impri- 
 sonment being with or without hard labour, and with or without 
 solitary confinement, such confinement not exceeding one month at any 
 one time, nor three months in any one year. 7 H'. 4 ^ 1 Vict. c. 91, 
 s. 2. T'a.king such an oath, felony : penal servitude for life or for such 
 term [not being less than five years, 27 ^ 28 Vict. c. 47, ». 2] as the 
 court shall adjudge. o2 O. 3, c. 104, s, 1. As to the evidence, see 
 the proofs under the precedent, ante, p. 780. If the offence be com- 
 mitted on the high seas, or out of the realm, the venue may be laid in 
 any county. 52 G. 3, c. 104, s. 7. 
 
 This offence is not triable at quarter sessions. 5^6 Vict. c. 38, 
 s. 1 {ante, p. 104). 
 
 Sect. 8. 
 inciting to mutiny. 
 
 Statutes. 
 
 37 G. 3, c. 70, s. 1.]— "Whereas divers wicked and evil-disposed 
 persons, by the publication of written or printed papers, and by ma- 
 licious and advised speaking, have of late industriously endeavoured 
 to seduce persons serving in his Majesty's forces by sea and land 
 from their duty and allegiance to his Majesty, and to incite them to 
 mutiny and disobedience ;" be it enacted, that any person who shall 
 maliciously and advisedly endeavour to seduce any person or persons 
 serving in his Majesty's forces by sea or land from his or their duty 
 and allegiance to his Majesty, or to incite or stir up any such person 
 or persons to commit any act of mutiny, or to make or endeavour to 
 make any mutinous assembly, or to commit any traitorous or muti- 
 nous practice whatsoever, shall, on being legally convicted of such 
 oflFence, be adjudged guilty of felony, and shall suffer death, as in 
 cases of felony, without benefit of clergy. 
 
 Sect. 2 — Venue.'] — Provided, that any offence committed against 
 this act, whether committed on the high seas or within that part of 
 G-reat Britain called England, shall and may be prosecuted and tried 
 before any court of oyer and terminer or gaol delivery for any county 
 in that part of Great Britain called England, in such manner and 
 form as if the said offence had been therein committed. 
 
 7 TF. 4 cfc 1 Vict. c. 91, s. l.]— Recites {inter alia) the 37 G. 3, c. 70, 
 s. 1 ; and enacts, that if any person shall, after the commencement of 
 this act, be convicted of any of the offences hereinbefore mentioned, 
 such person shall not suffer death, or have sentence of death awarded 
 against him or her for the same, but shall be liable, at the discretion 
 of the court, to be transported beyond the seas for the term of the 
 
784 Inciting to Mutiny. 
 
 natural life of such person, or for any term not less than fifteen years, 
 or to be imprisoned for any term not exceeding three years. 
 
 9 (6 10 Viet. c. 24, s. 1.]— Ante, p. 174. 
 
 20 <& 21 Vict. c. 3.']— Ante, p. 172. 
 
 27 £ 28 Vict. e. 47, s. 2.}— Ante, p. 173. 
 
 7 TF. 4 <fe 1 Vict. c. 91, s. 2— Place aiid Mode of Imprisonmemt.'] — 
 Ante, p. 782. 
 
 Indictment for endeavouring to seduce a Soldier from his A llegiance. 
 
 Middlesex, to wit : — The jurors for our lady the Queen upon their 
 oath present that J. S., being a wicked and evil-disposed person, on 
 the first day of June, in the year of our Lord , feloniously, ma- 
 liciously, and advisedly did endeavour to seduce one J. N. (he the 
 said J. N. then being a person serving in her Majesty's forces by 
 land) from his duty and allegiance to her said Majesty ; he the said 
 J. S., at the time he so endeavoured to seduce the said J. N. from his 
 duty and allegiance as aforesaid, well knowing that the said J. N. 
 was then a person serving in her Majesty's forces by land ; against 
 the form [as ante, p. 347]. The venue may be laid in any county. 37 
 G. 3, c. 70, s. 2. 
 
 Felony : penal servitude for life or for not less titan five years, or 
 imprisonment for not more than three years, 1 W.iSf 1 Vict, c, 91 , «. 1 ; 
 9*10 Vict. c. 24. s. 1 {ante, p. 174) ; 20 ^ 21 Vict. t. 3 {ante, p. 172; 
 27 ^ 28 Vict. c. 47, s 2 {ante, p. 173) ; the imprisonment being with 
 or without hard labour, and with or without solitary confinement, such 
 confinement not crceeding one month at any one time, niir three months 
 in any oneyear, 7 PT. 4 ^' 1 Vicf. c 91, s. -2 (ante, p. 782). The offence 
 described in the statute is an endeavour to seduce any person serving in 
 his Mdjesty's forces by sea or land, from his duty or allegiance to his 
 Majesty : or to incite or stir him up to commit any act of mutiny, or to 
 make or endeavour to make any mutinous assembly, or to commit any 
 traitorous or mutinous practice whatsoever. It is not necessary to 
 allege the means by which the defendant endeavoured to seduce him. 
 E. v. Fuller, 1 Bos. Sf P. 180. The allegation that J. S. "felo- 
 niously, maliciously and advisedly did endeavour to seduce, Sec," has 
 been held sufficient without the averment contained in the above pre- 
 cedent that J. S. knew that J. N. was a person serving in her Ma- 
 jesty' s forces. Id. As to inducing soldiers to desert, see 6 G. 4, 
 c. 5. 
 
 This offence is not triable at quarter sessions. 5^6 Vict. c. 38, 
 s. 1 {ante, p. 104). 
 
 Evidence. 
 Although in the indictment it is not necessary to state the means 
 by which the defendant endeavoured to Seduce J. N. firom his duty 
 and allegiance, they must be detailed in evidence. It must be 
 proved, also, that J. N. was at the time serving in her Majesty's land 
 forces; and that J. S. was aware of that fact. A sailor who has been 
 in the sick hospital for thirty days, and therefore is not entitled to 
 pay, nor liable to answer before a court-martial for what he does, is 
 nevertheless a person serving in her Majesty's navy, within this act. 
 R. V. Tiemey, R. & R. 74. 
 
Illegal Training and.Drilling. 785 
 
 Sect. 9. 
 illegal training and drilling. 
 
 Statutes. 
 
 60 G. 3 4" 1 G. i, e. 1, ». 1.] — Eeeites, thai in some parts of the 
 United Kingdom, men clandestinely and unlawfully assembled have 
 practised military training and exercise, to the great terror and alarm 
 of his Majesty' s peaceable and loyal subjects, and the imminent danger 
 of the ■public peace ; and enacts, that all meetings and assemblies of 
 persons for the purpose of training or drilling themselves, or of being 
 trained or drilled, to the use of arms, or for the purpose of practising 
 military exercise, movements, or evolutions, without any lawful au- 
 thority from his Majesty, or the lieutenant or two justices of the 
 peace for any county or riding, or of any stewartry, by commission or 
 otherwise, for so doing, shall be and the same are hereby prohibited, 
 as dangerous to the peace and security of his Majesty's liege sub- 
 jects and of his government; and every person who shall be present 
 at or attend any such meeting or assembly, for the purpose of train- 
 ing and drilling any other person or persons to the use of arms, or 
 the practice of military exercise, movements or evolutions, or who 
 shall train or drill any other person or persons to the use of arms, or 
 the practice of military exercise, movements or evolutions, or who 
 shall aid or assist therein, being legally convicted thereof, shall be 
 liable to be transported for any term not exceeding seven years, or 
 to be punished by imprisonment not exceeding two years, at the 
 discretion of the court in which such conviction shall be had ; and 
 every person who shall attend or be present at any such meeting or 
 assembly as aforesaid, for the purpose of being, or who shall at any 
 such meeting or assembly be, trained or drilled to the use of arms, 
 or the practice of military exercise, movements or evolutions, being 
 legally convicted thereof, shall be liable to be punished by fine and 
 imprisonment not exceeding two years, at the discretion of thfc court 
 in which such conviction shall be had. 
 
 20 & 21 Vict. c. 3.]— Ante, p. 172. 
 
 27 (& 28 Vict. c. 47, s. 2.]— Ante, p. 173. 
 
 &0 G. 3 d 1 G. 4, c. 1, s. 2— Dispersion of Meetings, etc."] — It shall 
 be lawM for any justice of the peace, or for any constable or peace 
 officer, or for any other person acting in their aid or assistance, to 
 disperse any such unlawful meeting or assembly as aforesaid, and to 
 arrest and detain any person present at, or aiding, assisting, or abet- 
 ting any such assembly or meeting as aforesaid; and it shall be 
 lawful for the justice of the peace who shall arrest any such person, 
 or before whom any person so arrested shall be brought, to commit 
 such person for trial for such offence, under the provisions of this act, 
 unless such person can and shall give suflBcient bail for his appear- 
 ance at the next assizes or general or quarter sessions of the peace, 
 to answer to any indictment which may be preferred against him for 
 any such offence against this act, in England and Ireland ; and in 
 Scotland every such person shall be aiTested and dealt with according 
 to the law and practice of that part of the United Kingdom in the 
 case of a bailable offence. 
 
786 Illegal Training and Drilling. 
 
 Sect. 7 — Limitation of Prosecutions.'] — No person shall be prose- 
 cuted by virtue of this act for anything done or committed contrary 
 to the provisions hereinbefore contained, unless such prosecution 
 shall be commenced within six calendar months after the fact com- 
 mitted. 
 
 Indictment. 
 
 Yorkshire, to wit : — The jurors for our lady the Queen upon their 
 oath present, that heretofore, to wit, on the first day of June, in the 
 
 year of our Lord , divers, to wit, 500 persons, were unlawfully 
 
 met and assembled together, for the purpose of being trained and 
 drilled to the use of arms, and for the pui-pose of practising militaiy 
 exercise, movements and evolutions, without auy lawful authority 
 from her Majesty, or the lieutenant or two justices of the peace of 
 any county or riding, or of any stewartry, by commission or other- 
 wise, for so doing, contrary to the form of the statute in such case 
 made and provided. And the jurors aforesaid, upon their oath afore- 
 said, do further present that J. S., on the day and year aforesaid, im- 
 lawfuUy was present at and attended the said meeting and assembly, 
 for the purpose of training and drilling the said persons so then and 
 there met and assembled together as aforesaid to the use of arms, and 
 the practice of military exercise, movements, and evolutions ; against 
 the form [as ante, p. 347]. Add counts stating the meeting in similar 
 terms, and, 1 , that the defendant did then and there train and drill the 
 persons so assembled, (or certain persons named or unknown) ; 2, that he 
 aided and assisted in so doing. You may also add a count charging 
 jjenerally that the defendant trained and drilled to the use of arms, etc- , 
 without stating any meeting or assembly. An indictment for being present 
 at such meeting for the purpose of being trained or drilled, or for being 
 there trained or drilled, may easily be framed from the above. The in- 
 dictment must show that the meeting was heldfor the purpose of training 
 or drilling, etc., as described in the statute: it is not svfficierit to allege 
 ttiat it was a meeting dangerous to the public peace, and that the de- 
 fendant attended it for the purpose of training and drilling, etc. 
 Gogarty v. R., 3 Cox, 306. 
 
 Misdemeanor: penal servitude for not more than seven nor less than 
 five years, or imprisonment not exceeding two years : 60 G. 3 ^ I O. 
 4, c. 1, «. 1 ; 20 |- 21 Vict. c. 3 [ante, p. 172) ; 27 ^ 28 Vict. c. 47, s. 2 
 (ante, p. 173). 
 
 This offence is not triable at quarter sessions. 5^6 Vict. c. 38, 
 X. 1 (ante, p. 104). 
 
 Evidence. 
 
 _ Prove that the meeting was held as stated in the indictment, under 
 circumstances tending to show that it was unauthorized and unlaw- 
 ful; that it was held for the purpose of training and drilling to the 
 use of arms, etc. : and that the defendant attended it for the purpose 
 of training and drilling others, or of being himself trained and drilled, 
 as the case may be. The jury will of course have to infer the intent 
 from the circumstances (see <mt&,p. 208). 
 
Unlawful Possession, etc., of Naval Stores. 787 
 
 Sect. 10. 
 unlawful possession, etc., of naval stoees. 
 
 Statute. 
 32 Vict. c. 12, s. 1— Short Title.']— This act may be cited as " The 
 Naval Stores Act, 1869." 
 
 Sect. 2— Interpretation of Terms.']— In this act— the term " the 
 Admiralty" means the lord high admiral of the raiited kingdom, or 
 the commissioners for executing the office of lord high admiral : the 
 term " stores " includes all goods and chattels and any single store 
 or article. 
 
 Sect. 3 — 30 <6 31 Vict. c. 119, repealed, but such repeal not to ap 
 to offences before passing this Act] — "The Naval Stores Act, 1867,' 
 is hereby repealed ; but this repeal shall not apply or have effect to 
 or in respect of any oflFence, act or thing committed or done before 
 the passing of this act, or affect the revivor of any enactment revived 
 by the act hereby repealed. See 30 d; 31 'Fict. c. 119, s. 20, post, 
 p. 788. 
 
 Sect. A—Marhs in Schedule appropriated for Naval Stores.] — The 
 marks described in the schedule to this act may be applied in or on 
 stores therein described in order to denote her Majesty's property in 
 stores so marked; and it shall be lawful for the Admu'alty, their 
 contractors, oflScers and workmen, to apply those marks or any of 
 them in or on any such stores ; and if any person, ^without lawful 
 authority (proof of which authority shall lie on the party accused), 
 applies any of those marks in or on any such stores, he shall be 
 guilty of a misdemeanor, and shall, on conviction thereof, be liable 
 to be imprisoned for any term not exceeding two years, with or with- 
 out hard labour. 
 
 Sect. 5 — Obliteration with intent to conceal, etc.. Felony.] — If any 
 person, with intent to conceal her Majesty's property in any stores, 
 takes out, destroys or obliterates, wholly or in part, any such mark 
 as aforesaid, he shall be guilty of felony, and shall, on conviction 
 thereof, be liable, in the discretion of the court before which he is 
 convicted, to be kept in penal servitude for any term not exceeding 
 five years, or to be imprisoned for any term not exceeding two 
 years, with or without hard labour, and with or without solitary con- 
 finement. 
 
 Sect. 10— Sections 98, 99, 100, 103, 107 to 113, amd 115 to 121 of 
 24 (& 25 'Fict. c. 96, incorporated with this Act.] — The following sec- 
 tions of the act of the session of the 24th and 25th years of her Ma- 
 jesty's reign (chap. 96), " to consolidate and amend the statute law 
 of England and Ireland relating to larceny and other similar offences," 
 are hereby incorporated with this act, and shall for the purposes of 
 this act be read as if they were here re-enacted, namely, ss. 98 to 
 100, 103, 107 to 113, and 115 to 121, all inclusive ; and for this 
 purpose the expression " this act," where used in those sections, 
 shall be taken to include the present act. 
 
788 
 
 Unlamfvil Possession, etc., of Naval Stores. 
 
 Sect. 12 — Not to prevent Persons being indicted under this Act, ete.l 
 — Nothing in this act shall prevent any person from being indicted 
 under this act or otherwise for any indictable offence made punish- 
 able on summary conviction by this act, or prevent any person from 
 being liable under any other act or otherwise to any other or higher 
 penalty or punishment than is provided for any offence by this act, 
 so that no person be punished twice for the same offence. 
 
 Sect. 13— Amendment of Sect. 45 o/28 S 29 Vict. c. 89.]— Sect. 46 
 of " The Greenwich Hospital Act, 1865," shall be read and have 
 effect as. if this act instead of " The Naval and Victualling Stores 
 Act, 1864," were referred to in that section. 
 
 Sect. li—Extent of Act.'] — This act shall not extend to Scotland 
 or Ireland. 
 
 Schedule. 
 Marks appropriated for Her Majesty's use in or on Stores. 
 
 Stores. 
 
 Marks. 
 
 Hempen cordage and wire rope 
 
 Canvas, fearnought, hammocks, 
 
 and seamen's bags. 
 Buutin 
 Candles 
 
 Timber, metal, and other stores 
 not before enumerated. 
 
 White, black or coloured worsted 
 threads laid up with the yarns 
 and the wire respectively. 
 
 A blue line in a serpentine form. 
 
 A double tape in the warp. 
 Blue or red cotton threads in each 
 
 wick, or wicks of red cotton. 
 The broad arrow. 
 
 30(631 Vict. c. 119, s. 20— Amendment of 28 d 29 Vict. c. 112, as to 
 Repeal of certain Sections o/ 9 (6 10 W. 3, c. 41.]— The repeal by 
 " The Admiralty Acts Repeal Act, 1865," of sects. 1, 2, 4, 5 and 8 of 
 the act of the session of the 9th and 10th years of the reign of King 
 William the Third (chap. 41), " for the better preventing the imbezle- 
 ment of his Majesty's stores of war, and preventing cheats, frauds and 
 abuses in paying seamen's wages," is hereby repealed as far as those 
 sections relate to any stores except naval or victualling stores, or 
 other stores belonging to or under the charge or control of the Ad- 
 miralty, or to Scotland or Ireland, and to that extent those sections 
 are hereby revived; but nothing herein contained shall interfere with 
 the operation of any other act of the present session. 
 
 {Sects. 1, 2, 4, 5 and 8 ofQ ^ 10 PT. 3, c. 41, are, however, now 
 repealed (30 ^ 31 Vict. c. 128, s. 4, post, p. 790), " so far as they 
 relate to military or ordnance stores, or other her Majesty's stores 
 under the charge or control of the Secretary of State far War."^ 
 
 Indictment for vjrongfully applying Marks on Naval Stores. 
 County of Southampton, to wit : — The jurors for our lady the 
 Queen upon their oath present that J. S., on the first day of June, 
 
Unlawful Possession, etc., of War Departmeni Stores. 789 
 
 in the year of our Lord , unlawfully and without lawful autho- 
 rity applied a certain mark, to wit, a double tape in the warp, in and 
 on certain stores, to wit, 500 yards of buntin ; against the form of the 
 statute in such case made and provided. 
 
 Misdemeanor : impi-inonment for any term not exceeding two years, 
 with or without hard labour. 3i Vict. c. 12, s. 4. 
 
 Evidence. 
 
 Prove that the defendant applied the mark to the stores mentioned 
 in the indictment. It is not necessary to show that he did so without 
 lawful authority. If the defendant had such authority he must prove 
 it. Sect. 4. 
 
 Indictment for obliterating Marks on Naval Stores. 
 
 County of Southampton, to wit : — The jurors for our lady the 
 Queen, upon their oath present that J. S., on the first day of June, 
 
 in the year of our Lord , feloniously and with intent to conceal 
 
 her Majesty's property therein, took out (" takes out, destroys or 
 obliterates wholly or in part") from 100 yards of canvas, which said 
 canvas was then naval stores of and belonging to her Majesty, a 
 certain mark, to wit, a blue line in a serpentine form, which said 
 mark was then applied thereon in order to denote her said Majesty's 
 property in naval stores so marked ; against the form of the statute 
 in such case made and provided. 
 
 Add counts charging " destroying" and " obliterating." 
 Felony: penal servitude for any term not exceeding five years, or 
 imprisonment for any term not exceeding two years, with or without 
 hard labour, and with or without solitary confinement (such confine- 
 ment not exceeding one month at any one time, nor three months in 
 any one year; 1 W. id: \ Vict. c. 90, s. 5). — 32 Vict. c. 12, s. 5. 
 
 Evidence. 
 
 Prove that the defendant took out the mark from the stores, and 
 circumstances from which it may be inferred that his intent in so 
 doing was to conceal her Majesty's property therein. As, however, 
 a man is presumed to intend the necessary and reasonable conse- 
 quences of his own acts {R. v. Dixon, 3 M. t& Selw. 15 : -B. v. Par- 
 rington, JR. <& M. 207, ante, p. 208), the mere fact of the defendant's 
 having taken out the mark will be sufficient evidence to go to the 
 jury, that in doing so he intended to conceal her Majesty's property 
 in the stores. 
 
 Sect. 11. 
 unlawful possession, etc., op war department stores. 
 
 Statute. 
 
 30 (& 31 Vict. c. 128, s. 1— Short Title.]— This act may be cited as 
 " The War Department Stores Act, 1867." 
 
 Sect. ^—Extent of Act.] — This act shall not extend to Scotland or 
 Ireland. 
 
790 Unlawful Poisession, etc., of War Department Stores. 
 
 Sect. 3 — Interpretation of Terms.'] — In this act — the term " the 
 secretary of state for war" means such one of her Majesty's principal 
 secretaries of state as her Majesty is for the time being pleased to 
 intrust with the seals of the war department : the terra " dealer in 
 marine stores" means a person bound to conform with the regulations 
 of " The Merchant Shipping Act, 1854," section 480 : the term 
 " dealer in old metals" has the same meaning as in " The Old Metal 
 Dealers Act, 1861:" the term "stores" includes all goods and 
 chattels and any single store or article. 
 
 Sect. 4 — Repeal of Enactments in Schedule to this Act.] — The 
 enactments described in the schedule to this act are hereby repealed 
 as far as they relate to military or ordnance stores, or other her 
 Majesty's stores under the charge or control of the secretary of state 
 for war; but this repeal or anything in this act shall not apply to or 
 in respect of any offence, act or thing committed or done before the 
 passing of this act, save that this act shall apply to stores bearing 
 any such mark or part of a mark as in this act mentioned, whether 
 applied before or after the passing of this act. 
 
 Sect. 5 — Marks appropriated for War Department Stores.] — The 
 following marks, namely, the broad arrow with or without the letters 
 W. D., or the letters B. 0., may be applied in or on stores to denote 
 her Majesty's property in stores so marked. It shall be lawful for 
 the secretary of state for war and the contractors, officers and work- 
 men of the war department to apply those marks or any of them in 
 or on stores. If any person without lawful authority (proof of which 
 authority shall lie on the party accused) applies any of those marks 
 in or on any stores, he shall be deemed guilty of a misdemeanor, and 
 shall, on conviction thereof, be liable to be imprisoned for any term 
 not exceeding two years, with or without hard labour. 
 
 Sect. 6 — Obliteration with intent to conceal, etc.. Felony.] — If any 
 person, with intent to conceal her Majesty's property in any stores, 
 takes out, destroys, or obliterates wholly or in part any such mark as 
 aforesaid, he shall be deemed guilty of felony, and shall on conviction 
 thereof be liable, in the discretion of the court before which he is 
 convicted, to be kept in penal servitude for any term not exceeding 
 five years, or to be imprisoned for any term not exceeding two 
 years, with or without hard labour, and with or without solitary 
 confinement. 
 
 Sect. 7 — Knowingly receiving, etc., marked Stores a Misdemeanor.] — 
 If any person without lawful authority (proof of which authority 
 shall lie on the party accused), receives, possesses, keeps, sells, or 
 delivers any stoi-es bearing any such mark as aforesaid, or any part 
 of any such mark, knowing them to bear such mark or part of a 
 mark, he shall be deemed guilty of a misdemeanor, and shall on 
 conviction thereof be liable to be imprisoned for any term not ex- 
 ceeding one year, with or without hard labour. 
 
 Sect. 8 — Knowledge of Stores ieing marked presumed against Dealers, 
 ete.]— Where a person charged with such a misdemeanor as last 
 aforesaid was, at the time at which the offence is charged to have 
 been committed, in her Majesty's service or a dealer in marine stores 
 or in old metals, or a pawnbroker, knowledge on his part that the 
 
Unlawful Possession, etc., of War Depdrtmemt Stores. 791 
 
 stores to which- the charge relates bore such a mark or part of a 
 mark as aforesaid shall be presumed until the contrary is shown. 
 
 Sect. 9 — Summary Conviction in certain Cases.'] — A person charged 
 with such a misdemeanor as last aforesaid in relation to stores the 
 yalue whereof does not exceed bl. shall be liable, on summary con- 
 viction before a justice of the peace, to a penalty not exceeding bl., 
 or in the discretion of the justice to be imprisoned for any term not 
 exceeding six months, with or without hard labour. 
 
 Sect. 13 — Provision for Segimental Necessaries, etc.l — The provisions 
 of this act relative to the taking out, destroying or obliterating of 
 marks, or to the receiving, possessing, keeping, selling or delivering 
 of marked stores, or to the possessing of unmarked stores, shall not 
 apply to stores issued as regimental necessaries or otherwise for any 
 soldier, militiaman or volunteer; but nothing herein shall relieve 
 any person from any obligation or liability to which he may be 
 subject under any other act in respect of any such stores. 
 
 Sect. 14 — Criminal Possession explained.] — For the purposes of this 
 act stores shall be deemed to be in the possession or keeping of any 
 person if he knowingly has them in the actual possession or keeping 
 of any other person, or in any house, building, lodging, apartment, 
 field or place, open or inclosed, whether occupied by himself or not, 
 and whether the same are so had for his own use or benefit, or for the 
 use or benefit of another. 
 
 Sect. IQ—SecHons 98, 99, 100, 103, 107 to 113, and 115 to 121 of 
 24 <& 25 Vict. c. 96, incorporated with this Act.] — The following 
 sections of the act of the session of the 24th and 25th years of her 
 Majesty's reign (chap. 96), " to consolidate and amend the statute 
 law of England and Ireland relating to larceny and other similar 
 offences;" shall be incorporated with this act, and shall for the pur- 
 poses of tliis act be read as if they were here re-enacted, namely, 
 sections 98 to 100, 103, 107 to 113, and 115 to 121 (aU inclusive), 
 and for this purpose the expression " this act " where used in the 
 sections herein incorporated shall be taken to include the present 
 act. 
 
 Sect. 19 — Provision for Indictments, eic.]— Nothing in this act shall 
 prevent any person from being indicted under this act or otherwise 
 for any indictable offence made punishable on summary conviction 
 by this act, or prevent any person from being liable under any other 
 act or otherwise to any other or higher penalty or punishment than 
 is provided for any offence by this act, so that no person be punished 
 twice for the same offence. 
 
 Sect. 20 — Power for Secretary of State to sue, etc.] — The secretary 
 of state for war may institute and prosecute any action, suit or pro- 
 ceeding, civil or criminal, concerning military or ordnance stores, or 
 other her Majesty's stores under the charge or control of the secre- 
 tary of state for war, or any stores sold or contracted to be delivered 
 to or by the secretary of state for war for the use or on account of 
 her Majesty, or the price to be paid for the same, or any loss or in- 
 jury of or to any such stores as aforesaid, and may defend any action, 
 
792 Unlawful Possession, etc., of War Department Stores. 
 
 suit or proceeding concerning any such stores, matter or thing as 
 aforesaid ; and in every such action, suit or proceeding the secretary 
 of state for war may be so described, without more ; and anjr such 
 action, suit or proceeding shall not be affected by any change in the 
 person for the time being holding the office of secretary of state for 
 war : Provided always, as follows : — (1.) Nothing herein shall take 
 away or abridge in or in relation to any such action, suit, or proceed- 
 ing, any legal right, privilege or prerogative of the crown ; and in 
 all such actions, suits and proceedings, and in all matters and pro- 
 ceedings connected therewith, the secretary of state for war may 
 exercise and enjoy all such rights, privileges and prerogatives as are 
 for the time being exercised and enjoyed in any proceeding in any 
 court of law or equity by the crown, as if the crown were actually 
 a party to such action, suit or proceeding ; (2.) It shall be lawfiil for 
 her Majesty, her heirs and successors, if and when it seems fit, to pro- 
 ceed by information in the court of Exchequer, or by any other crown 
 process, legal or equitable, in any case in which it would have been 
 competent for her Majesty, her heirs or successors, so to proceed if 
 no provisions respecting procedure had been inserted in this act. 
 
 Schedule. 
 
 Enactments repealed with respect to War Department Stores, except 
 as to Scotland and Ireland. 
 
 9 cfc 10 TT. 3, c. 41. 
 in part. 
 
 9(?.l, C.8. 
 in part. 
 
 17ff.2,c.40. 
 in part. 
 
 39 (6 40 (?. 3,0.89. 
 
 54 G. 3, c. 60. 
 55 G. 3, c. 127. 
 
 4 0.4,0.53. 
 
 I in part, 
 [namely : 
 
 An Act for the better preventing the"* 
 ImbezlementofHis Majesty's Stores 
 of War, and preventing Cheats, ' 
 Frauds, and Abuses in paying Sea- 
 men's Wages - ■ - -, 
 Sects. 1, 2, 4, 5 and 8. 
 
 An Act, the title whereof hegins with\ 
 the words An Act for continuing I in part, 
 some Laws, and ends with the vjords | namely : 
 Stuflfs to be exported - -) 
 
 Sects. 3, 4 and 5. 
 
 An Act, the title whereof begins ii}ith\ 
 the words An Act to continue the I in part, 
 several Laws, and ends with i^e| namely: 
 words England without Licence -J 
 Sect. 10. 
 
 An Act for the better preventing the Embezzle- 
 ment of His Majesty's Naval, Ordnance, and 
 Victualling Stores. 
 
 An Act for the better preventing the Embezzle- 
 ment of His Majesty's Cordage. 
 
 An Act to repeal an Act of the Fifty-third Tear 
 of His present Majesty, for preventing the Em- 
 bezzlement of Stores, and to extend the Provi- 
 sions of the several Acts relating to His Ma- 
 jesty's Naval, Ordnance, and Victualling Stores 
 to all other public Stores. 
 
 An Act for extending the Benefit of Clergy to 
 several Larcenies therein mentioned. 
 
Unlaviful Possession, etc., of War Department Stores, 793 
 
 Indictment for being in unlawful possession of War Department Stores. 
 
 County of Southampton, to wit : — The jurors for our lady the 
 Queen upon their oath present, that J. S., on the first day of June, in 
 the year of our Lord , without lawful authority unlawfully pos- 
 sessed (" receives, possesses, keeps, sells, or delivers ") 600 yards of 
 canvas, which said canvas was then war department stores of and 
 belonging to her Majesty, and then bore a certain mark (" any such 
 mark as aforesaid, or any part of any such mark"), to wit, the broad 
 arrow, then applied thereon, in order to denote her Majesty's pro- 
 perty in war department stores so marked, the said J. S., then well 
 knowing the said canvas to bear the said mark ; against the form of 
 the statute in such case made and provided. 
 
 Add counts charging " receiving," " keeping," " selling," and " de- 
 livering." 
 
 Misdemeanor: imprisonment for any term not exceeding one year, 
 with or without hard labour. 30 Sj: 31 Vict. c. 128, a. 7. 
 
 Evidence. 
 
 Prove that the defendant was in possession of stores marked as 
 alleged in the indictment, and circumstances from which it may be 
 inferred that he knew them to bear such mark. 
 
 By sect. 14, stores shall be deemed to be in the possession or 
 keeping of any person, if he knowingly has them in the actual pos- 
 session or keeping of any other person or in any house, building, 
 lodging, apartment, field or place, open or inclosed, whether occu- 
 pied by himself or not, and whether the same are so had for his own 
 use or benefit, or for the use or benefit of another. 
 
 Sect. 7 expressly makes the knowledge by the defendant, that the 
 stores bore the mark, a necessary ingredient in the oflFence, and, 
 therefore, if the jury negative such knowledge the defendant must 
 be acquitted. The repealed stat. 9 S W W. 3, c. 41, s. 2, contained 
 no express provision to that effect ; but it was nevertheless held, 
 even under that statute, that such knowledge was essential to con- 
 stitute guilt. JR. V. Cohen, 8 Coa> 41 : S. v. Sleep, L. cfc C. 44 ; 30 
 L. J. (M. C.) 170. Such knowledge will, however, be presumed 
 against the defendant, until the contrary be shown, where he comes 
 under any one of the descriptions mentioned in sect. 8. 
 
 And where marked stores are found in the possession of a person 
 not coming under any one of these descriptions, and it cannot be 
 proved that he knew that the stores were marked, he is liable, by 
 sect. 12, under certain circumstances, to be summarily convicted. 
 
 When the prosecution have proved the possession by the defend- 
 ant of the marked stores, and his knowledge that they bore the mark, 
 the case is complete. It is then for the defendant to prove, if he 
 can, that his possession was by lawful authority (sect. 7). And, even 
 if he cannot show such lawful authority, yet, as it is a principle of 
 our law that to constitute an offence there must be a guilty mind 
 [see the judgment of Cockbum, C. J., in R. v. Sleep, ubi supra'], it 
 would appear that, although the case for the prosecution is complete, 
 where the circumstances mentioned in sect. 7 are proved, yet the 
 defendant may explain his possession by evidence showing that, 
 although it was without lawful authority, it was not a guilty pos- 
 session. Thus, where a woman was indicted for having naval stores, 
 namely, canvas, in her possession, and she proved that it was in 
 •W. MM 
 
794 Unlawful Possession, etc., of War Department Stores. 
 
 common use in her family during her, husband's lifetime, and came 
 to her upon his death, and was constantly used by her as table-linen 
 afterwards ; this was holden to be a sufficient excuse ; and the de- 
 fendant was acquitted. Fast. 439 ; 2 East, P. C. 765. So, where 
 the defendant proved that he bought the stores in question from 
 a person who was in the habit of purchasing at the navy sales, and 
 who he was therefore led to presume had the regular certificate, it 
 was held sufficient excuse. R. v. Bamhs, 1 Esp. 145. It is true that 
 these cases were decided on the repealed enactment of 9 (6 10 W. 3, 
 c. 41, s. 2, but the principles of the decision appear equally appli- 
 cable to cases falling within this section. 
 
 As to forms of indictments for offences against ss. 5 and 6 of 
 30 (& 31 Vict. c. 128, and the evidence necessary to support them, 
 see ante, pp. 788, 789. Sects. 5 and 6 of 30 tfc 31 Vict. c. 128, corre- 
 spond respectively with ss. 4 and 5 of 32 Vict. c. 12, upon which 
 those indictments are framed. 
 
 As to stores used or intended to be used for the purposes of 
 Greenwich Hospital, see 28 d 29 Vict. c. 89, s. 45 and 32 Viet. c. 12, 
 s. 13. 
 
 Sect, 12. 
 
 concealment of teeastjeb trove. 
 
 For the form of indictment for this rare offence, which is a misde- 
 meanor at common law, and the evidence requisite to support it, see 
 E. V. Thomas, L. & C. 313; 33 L. J. (M. C.) 22: R. v. Took, 11 
 Cox, 16. . V -- 
 
(795 ) 
 
 CHAPTER II. 
 
 OFFENCES AGAINST PUBLIC JUSTICE. 
 
 Sect. 1. Escape, p. 795. 
 
 2. Breach of Prism, p. 798. 
 
 3. Bescue, p. 803. 
 
 4. Returning from Transportation, p. 805. 
 
 5. Perjury, p. 808. 
 
 6. Voluntary Oaths, p. 829. 
 
 7. Bribery, p. 830. 
 
 8. Extortion, p. 832. 
 
 9. Misconduct of Officers of Justice, p. 832. 
 
 10. Not oheying the Orders of a Magistrate, p. 834. 
 
 11. Compounding Felony, p. 835. 
 
 12. Libels reflecting on the Administration of Justice, p. 838. 
 
 Sect. 1. 
 
 ESCAPE. 
 
 Indictment against a Constable for a Negligent Escape. 
 Middlesex, to wit : — The jurors for our lady the Queen upon their 
 oath present, that on the first day of June, in the year of our Lord 
 
 , J. S., then being one of the constables of the parish of B. in 
 
 the county of M., brought one J. N. before A. C, esquire, then and 
 yet being one of the justices of our said lady the Queen assigned to 
 keep the peace for our said lady the Queen in and for the county 
 aforesaid, and also to hear and determine divers felonies, trespasses 
 and other misdeeds committed in the said county, and the said J.N. 
 was then charged before the said A. C, by one Catherine Hope, 
 spinster, upon the oath of the said Catherine, that he the said J. N. 
 had then lately before violently, and against her will, feloniously 
 ravished and carnally known her the said Catherine; and the said 
 J. N. was then examined before the said A. C, the justice aforesaid, 
 touching the said offence so to him charged as aforesaid; upon which 
 the said A. C, the justice aforesaid, did then make a certain warrant 
 under his hand and seal, in due form of law, bearing date the said 
 first day of June in the year aforesaid, directed to the keeper of 
 Newgate or his deputy, commanding him the said keeper or Ms 
 deputy, that he should receive into his custody the said J. N., 
 brought before him and charged upon the oath of the said Catherine 
 
 M M 2 
 
796 Escape. 
 
 Hope, with the premises above specified; and the said justice, by 
 the said warrant, did command the said keeper of Newgate or his 
 deputy, to safely keep him the said J. N. there until he by due course 
 of law should be discharged; which said warrant afterwards, to wit, 
 on the day and year aforesaid, was delivered to the said J. S., then 
 being one of the constables of the said parish as aforesaid, and then 
 having the said J. N. in his custody for the cause aforesaid; and the 
 said J. S. was then commanded by the said A. C, the justice afore- 
 said, to convey the said J. N., without delay, to the said gaol of 
 Newgate, and to deliver him the said J. N. to the keeper of the said 
 gaol or his deputy, together with the warrant aforesaid." And the 
 jurors aforesaid, upon their oath aforesaid, do further present, that 
 the said J. S. afterwards, to wit, on the day and year last aforesaid, 
 then being one of the constables of the said parish as aforesaid, and 
 then having the said J. N. in his custody for the cause aforesaid, the 
 said J. N. out of the custody of him the said J. S. unlawfully and 
 negligently did permit to escape, and go at large whithersoever he 
 would, whereby the said J. N. did then escape, and go at large 
 whithersoever he would; to the great hinderance of justice, to the 
 evil example of all others in the like case offending, and against the 
 peace of our lady the Queen, her crown and dignity. 
 
 Fine. 2 Haioh. c. 19, s. 31. Where a private person is guilty of 
 a negligent escape, the punishment is fine or imprisonment, or both. 
 Id. c. 20, s. 6. The imprisonment must he for some criminal matter, 
 otherwise the escape is not punishable criminally. 
 
 Evidence. 
 Prove that J. N. was charged with rape, as alleged in the indict- 
 ment. Prove the warrant of commitment in substance as set out.in 
 the indictment, either by producing the warrant itself, or, after prov- 
 ing the service of a notice upon the defendant to produce it, by parol 
 or other secondary evidence of its contents. Prove a delivery of the 
 warrant to the defendant. Prove that he had J. N. in actual custody 
 under the warrant. See 2 Hawk. c. 19, ss. 1, 4. And lastly, prove 
 the escape. It is not necessary to prove negligence in the defend- 
 ant; the law implies it; see 1 HaU, 600; but if the escape were not 
 in fact negligent, if the defendant by force rescued himself, or were 
 rescued by others, and the defendant made fresh suit after him, but 
 without effect; all this must be shown upon the part of the defend- 
 ant. Also, it is immaterial whether J. N. were guilty of the rape or 
 not, provided the warrant were such as would justify J. S. in detain- 
 ing him. (See ante, p. 640.) 
 
 Indictment for Escaping out of the Custody of a Constahle. 
 State the charge before the magistrate, the warrant of commitment, 
 and the defendant's being in the custody of J. S. as in the last prece- 
 dent, to the *; and then proceed thus']: and the jurors afoi-esaid, upon 
 their oath aforesaid, do further present, that the said J. N- so being 
 in the custody of the said J. S., under and by virtue of the warrant 
 aforesaid, afterwards, and whilst he continued in such custody, and 
 before he was delivered by the said J. S. to the said keeper of New- 
 gate or his deputy, to wit, on the day and year last aforesaid, out of 
 the custody of the said J. S. unlawfully did escape, and go at large 
 
Escafi. 797 
 
 whithersoever he would; to the great hinderance of justice, to the 
 evil example of all others in the like case offending, and against the 
 peace of our lady the Queen, her crown and dignity. 
 
 FinR and imprisonment (with or without hard Idbov/r, 14 tfc 15 Vict. 
 e. 100, s. 29, amte,p. 175). See 2 Hawk. c. 17, s. 5. See the evidence 
 under the last precedent. 
 
 Indictment against a Gaoler for a Volvmiary Escape, 
 
 Berkshire, to wit : — The jurors for our lady the Queen upon their 
 oath present, that heretofore, to wit [at the general quarter sessions 
 
 of the peace, holden at , so conUnuaig the record of the conviction 
 
 of the pa/rty who escaped, stating it, however, in the past and not in the 
 present tense; then proceed thml : which said judgment still remains 
 in full force and effect, and not in the least reversed or made void. 
 And the jurors first aforesaid, upon their oath aforesaid, do further 
 present, that afterwards, to wit, at the said general quarter sessions 
 of the peace above mentioned, he the said J. N. was committed to the 
 cai'e and custody of J. S., he the said J. S. then and still being keeper 
 of the common gaol in and for the said county of Berks, there to be 
 kept and imprisoned in the gaol aforesaid, according to and in pur- 
 suance of the judgment and sentence aforesaid ; and the said J. S. 
 him the said J. N. then had in the custody of him the said J. S., for 
 the cause aforesaid in the gaol aforesaid. And the jurors first afore- 
 said, upon their oath aforesaid, do further present that the said J. S. 
 afterwards, and before the expiration of the six calendar months for 
 which the said J. N. was so ordered to be imprisoned as aforesaid, 
 and whilst the said J. N. was so in the custody of the said J. S. as 
 such keeper of the said common gaol as aforesaid, to wit, on the first 
 day of August, in the year last aforesaid, feloniously \jf the offence 
 for which J. N. was convicted were a felony], unlawfiiUy, voluntarily 
 and contemptuously, did permit and suffer the said J. N. to escape, 
 and go at large whithersoever he would; whereby the said J. N. did 
 then escape out of the said prison, and go at large whithersoever he 
 would ; in contempt of our said lady the Queen and her laws, con- 
 traiy to the duty of the said J. S., so being keeper of the gaol afore- 
 said, in manifest hinderance of justice, to the evil example of all 
 others in the like case offending, and against the peace of our lady 
 the Queen, her crown and dignity. 
 
 A voluntary escape a/mmmts to the same offence, and is punishable 
 in the same degree] as the offence of which the prisoner was guilty, and 
 for which he was in custody, whether treason, felony, or trespass. The 
 officer, however, cannot he thus punished until afteir the original delin- 
 quent has been convicted; but before such conviction he may be fined 
 and imprisoned as for a misdemeanor. 4 Bl. Com. 130 ; 1 Male, 234; 
 2 Hawh. c. 19, s. 22. 
 
 Prove the conviction of J. N., and that, upon his conviction, he 
 was remanded or committed to the custody of the defendant, as 
 keeper of the common gaol of the county of Berks. The conviction 
 may be proved in the manner pointed out by 14 & 15 Vict. c. 99, «. 13, 
 ante, p. 241. Prove him afterwards to have been in the custody of 
 the defendant, in pursuance of his sentence. And, lastly, prove the 
 
798 Breach of Prison. 
 
 escape. It does not seem to be necessary to prove that the escape 
 was voluntary; the law, it should seem, will presume that, until the 
 contrary appear. 
 
 Sect. 2. 
 breach op prison. 
 
 Statutes. 
 1 Ed. 2, St. 2, c. 1, in Suffhead's edition of the Statutes; 23 Ed. 1, 
 Stat, defrang. pris., in " The Statutes of the Realm" edited hy the Re- 
 cord Commissioners. '\ — Concerning prisoners which break prison, our 
 lord the king willeth and commandeth, that none from henceforth 
 that breaketh prison shall have judgment of life or member for 
 breaking of prison only, except the cause for which he was taken 
 and imprisoned did require such judgment, if he had been convicted 
 thereupon according to the law and custom of the realm, albeit in 
 times past it hath been used otherwise. 
 
 Indictment for Breaking Prison. 
 
 Proceed as in the precedent, ante, p. 795, to the words " until he by 
 due course of law should be discharged," in the description of the 
 warramt of commitment, and then proceed thus'] : by virtue of which 
 said warrant afterwards, to wit, on the day and year aforesaid, the 
 said J. N. was taken and conveyed to the said gaol of Newgate, and 
 then delivered to one W. S., the keeper of the said gaol, and the said 
 W. S., keeper of the said gaol, then and there received him the said 
 J. N., in his custody in the gaol of Newgate aforesaid*. And the 
 jurors aforesaid, upon their oath aforesaid, do further present, that 
 . the said J. N. afterwards, and whilst he so remained in custody of 
 the said W. S., keeper of the said gaol, under and by virtue of the 
 warrant aforesaid, to wit, on the third day of September, in the year 
 last aforesaid, feloniously [if he was committed for treason orfeUmy'], 
 unlawfully, wilfully and injuriously did break the gaol of Newgate 
 aforesaid, by then cutting and sawing two iron bars of the said gaol, 
 and also by then breaking, cutting and removing a great quantity of 
 stone, parcel of the wall of the gaol aforesaid; by means whereof he 
 the said J. N. did then escape and go at large whithersoever he 
 would ; to the great hinderance and obstruction of justice, in contempt 
 of our lady the Queen and her laws, to the evil example of all others 
 in the like case offending, and against the peace of our lady the 
 Queen, her crown and dignity. 
 
 Felony, if the defendant were in custody for treason or felony, 1 Ed. 
 2, st.1; 1 Hale, 612; penal servitude for not more than seven nor less 
 than five years, or imprisonment not exceeding two years, with or vnth- 
 out hard labour for the whole or any part of the imprisonment, and 
 with or without solitary confinement, 7 <fe 8 (?. 4, i;. 28, «. 9 (ante, 
 p. 173), such confinement not exceeding one month at any one time, nor 
 three months in any one year, 7 W.i&l Vict. c. 90, «; 5 (ante, p. 174); 
 and, if a male, to be once, tunce or thrice publicly or privately whipped, 
 in addition to the imprisonment, if the court shall think fit; 7 <fe 8 
 
Breach of Prison. 799 
 
 G. 4, c. 28, s. 8 (ante, p. 173); 20 <& 21 Fic«. c. 3 (flmte,jp. 172); 27 S 
 28 F«c«. c. 47, s. 2 (ante, ^. 173). Fine and imprisonment, if the de- 
 fmdant were in mstodyfor any other offence. 2 Hawk. c. 18, s. 21. 
 
 Eaidence. 
 
 Prove the charge before the magistrate, and the warrant, as di- 
 rected ante, p. 796. Prove that the defendant was afterwards lodged 
 in the gaol mentioned in the indictment, in the custody of the keeper; 
 and prove that, while in custody there under the warrant, he broke 
 the gaol and escaped. 
 
 The escape must be proved, if the breaking be charged as a 
 felony; 2 Hawh. c. 18, s. 12; but otherwise, it should seem, if it be 
 a misdemeanor only. And the breaking proved must be an actual 
 breaking; merely getting over the walls, or passing out through a 
 door, or the like, is an escape only, and not a breach of prison ; 
 1 Hale, 611; amd see R. v. Burridge, 3 P. Wms. 439; and on this 
 account, it should seem that the manner of the breaking should be 
 stated in the indictment, as in the above precedent, in order that the 
 court may see that it was such as is necessary in law to constitute a 
 breach of prison. But the breaking need not be intentional; and 
 therefore where a prisoner, in effecting his escape, by accident threw 
 down some loose bricks at the top of the prison wall, placed there 
 to impede escape and give alarm, it was holden to be a prison breach. 
 R. V. Haswell, R. & R. 458. 
 
 Every place where a man's person is lawfully imprisoned, whether 
 upon accusation or after conviction, such as the common gaol, the 
 constable's house, the stocks, etc., is a prison within the meaning of 
 the statute ; 2 Hawk. c. 18, s. 4; and as described in the indictment, 
 so it must be proved. 
 
 Although it is not material, in this case, whether the defendant 
 were guilty of the offence for which he was imprisoned or not, 2 Hawk. 
 V. 18, s. 16, yet if he can prove that no such offence was ever actually 
 committed, or that he was arrested and detained without any reason- 
 able cause of suspicion against him, 1 Hale, 610, 611, or if he have 
 been subsequently indicted for the offence and acquitted, this will be 
 a sufficient defence to the indictment for breach of prison. 
 
 AIDING PRISONERS TO ESCAPE. 
 
 Statutes. 
 
 28 S 29 Vict. c. 126, s. 37 — Assisting Prisoners to escape.'] — Every 
 person who aids any prisoner in escaping or attempting to escape 
 from any prison, or who, with intent to facilitate the escape of any 
 prisoner, conveys or causes to be conveyed into any prison any mask, 
 dress or other disguise, or any letter, or any other article or thing, 
 shall be guilty of felony, and on conviction be sentenced to imprison- 
 ment with hard labour for a term not exceeding two years. 
 
 Sect. 3 — Application of Act.] — This act shall not extend to Scot- 
 land or Ireland, and shall not apply to the prisons for convicts under 
 the superintendence of the directors of convict prisons, or to any 
 military or naval prison. 
 
80O Breach, of Prison. 
 
 Sect. 4 — Meaning of word Frison.2 — "Prison'' shall mean gaol, 
 house of correction, bridewell, or penitentiary; it shall include the 
 airing grounds, or other grounds or buildings occupied by prison 
 officers for the use of the prison and contiguous thereto. 
 
 16 G. 2, c. 31, s. 1 — Aiding Escapes.'} — For the further punishment 
 •of persons who shall aid or assist prisoners to attempt to escape out 
 of lawful custody; if any person shall, from and after the 24th day 
 of June, 1743, by any means whatsoever, be aiding or assisting to 
 any prisoner to attempt to make his or her escape from any gaol, 
 although no escape be actually made, in case such prisoner then was 
 attainted or convicted of treason, or any felony except petty larceny, 
 or lawfully committed to or detained in any gaol for treason, or any 
 felony, except petty larceny, expressed in the warrant of commitment 
 or detainer, every person so offending, and being thereof lawfully 
 convicted, shall be deemed and adjudged guilty of felony, and shall 
 be transported to one of his Majesty's colonies or plantations in 
 America, for the term of seven years; and in case such prisoner then 
 was convicted of, committed to or detained in any gaol for, petty 
 larceny, or any other crime not being treason or felony, expressed 
 in the warrant of his or her commitment or detainer as aforesaid, or 
 then was in gaol upon any process whatsoever for any debt, damages, 
 costs, sum or sums of money amounting in the whole to the sum of 
 one hundred pounds, every person so offending as aforesaid, and 
 being thereof lawfully convicted, shall be deemed and adjudged to be 
 guilty of a misdemeanor, for which he or she shall be liable to a fine 
 and imprisonment. 
 
 Sect. 2 — Conveying into Prison the means of Escape.} — If any per- 
 son shall, from and after the said 24th day of June, 1743, convey, or 
 cause to be conveyed, into any gaol or prison, any visor, or other 
 disguise, or any instrument or arms proper to facilitate the escape of 
 the prisoners, and the same shall deliver or cause to be delivered to 
 any prisoner in any such gaol, or to any other person there, for the 
 use of any such prisoner, without the consent or privity of the keeper 
 or under-keeper of any such gaol or prison, every such person, al- 
 though no escape or attempt to escape be actually made, shall be 
 deemed to have delivered such visor, or other disguise, instrument 
 or arms, with an intent to aid and assist such prisoner to escape or 
 attempt to escape ; and in case such prisoner then was attainted or 
 convicted of treason, or any felony except petty larceny, or lawfully 
 committed to or detained in any such gaol for treason, or any felony 
 except petty larceny, expressed in the warrant of commitment or 
 detainer, every person so offending, and being thereof lawfully con- 
 victed, shall in like manner be deemed and adjudged guilty of felony, 
 and shall be transported to one of his Majesty's colonies or planta- 
 tions in America for the term of seven years; but in case the 
 prisoner to whom, or for whose use, such visor or disguise, instru- 
 ment or arms shall be so delivered, then was convicted, committed, 
 or detained for petty larceny, or any other crime not being treason or 
 felony, expressed in the warrant of commitment or detainer, or upon 
 any process whatsoever for any debt, damages, costs, sum or sums of 
 money, amounting in the whole to the sum of one hundred pounds, 
 every such person so offending, and being thereof lawfully convicted, 
 shall be deemed and adjudged to be guilty of a misdemeanor, for 
 which he or she shall be in like manner liable to a fine and imprison- 
 ment. 
 
Breach of Prisoh. 801 
 
 Sect. 3 — Aiding Escape from Constahle.'} — If any person shall, from 
 and after the 24th day of June, 1743, aid or assist any prisoner to 
 attempt to make his or her escape from the custody of any constable, 
 headborough, tithingman, or other officer or person, who shall then 
 have the lawful charge of such prisoner, in order to cany him or her 
 to gaol, by virtue of a warrant of commitment for treason or any 
 felony (except petty larceny) expressed in such warrant ; or if any 
 person shall "be aiding or assisting to any felon to attempt to make 
 his escape from on board any boat, ship or vessel, carrying felons for 
 transportation, or from the contractor for the transportation of such 
 felons, his assigns, or agents, or any other person to whom such felon 
 shall have been lawfully delivered in order for transportation ; then 
 every person so offending, and being lawfully convicted thereof, shall 
 be deemed and adjudged to be guilty of felony, and shall be trans- 
 ported to one of his Majesty's colonies or plantations in America, for 
 the term of seven years. 
 
 Sect A — Limitation.'] — Provided that there shall be no prosecution 
 for any of the said offences, unless such prosecution be commenced 
 within one year after such offence committed. 
 
 9 (fe 10 Vict. c. 24, s. 1.1— Ante, p. 174. 
 
 20 & 21 Vict. c. S.]- Ante, p. 172. 
 
 27 <& 28 Vict. c. 47, s. 2.]— Ante, p. 173. 
 
 Indictment for conveying Files into a Prison, with intent to facilitate 
 Escape of Prisoner. 
 
 Berkshire, to wit : — The jurors for our lady the Queen upon their 
 oath present, that before and at the time of the committing of the 
 felony hereinafter mentioned, to wit, on the first day of June, in the 
 
 year of our Lord , one J. N. was a prisoner, in the common gaol 
 
 in and for the county of Berks ; and that J. S. afterwards, and whilst 
 the said J. N. was such prisoner as aforesaid, to wit, on the day and 
 year aforesaid, with intent to facilitate the escape of the said J. N., 
 so then being such prisoner as aforesaid, from and out of the said 
 gaol, feloniously did convey and cause to be conveyed into the gaol 
 aforesaid two steel files ; against the form [as ante, p. 347]. An 
 indictment on the 28 ^ 29 Vict. c. 126, s. 37, for aiding a prisoner 
 to escape or in attempting to escape, need not set forth the means em- 
 ployed by the defendant for that purpose. Holloway v. 2?., 2 Den, 
 387; 17 Q. B. 317. 
 
 Felony : imprisonment with hard labour for a term not exceeding 
 two years, 28 ^ 29 Viet. e. 126, s. 37. This statute applies to all 
 prisons in England and Wales, except prisons for convicts, under the 
 superintendence of the directors of convict prisons and any military 
 or naval prison, ss. 3, 4. As to escapes from the Penitentiary at 
 Millbank, see 6 Sf 7 Viet. c. 26, ss. 22, 23, 26. As to escapes from 
 Pentonville Prison, see 5 if 6 Vict. c. 29, ss. 24, 25, 28. As to escapes 
 from Parkhurst Prison, see I Sj- 2 Vict. c. 82, ss. 12, 13, 14. As to 
 escapes from asylums for criminal lunatics, see 23 Sc 24 Vict. c. 75, 
 s. 12. As to escapes from naval prisons, see 10 ^ 1 1 Viet. c. 62, s. 8 ; 
 29 if 30 Vict. c. 109, s. 82. As to escapes from military prisons, tee 
 the Annual Mutiny Acts. It is not very easy to say how far the pro- 
 
 M M 5 
 
802 Breach of Prison. 
 
 visions of 16 G. 2, c 31, so far as they relate to escapes from prisons, 
 are still in force. The 4 G. 4, c. 64, s. 1, repealed that statute so far 
 '■ as relates to the escape of any prisoner from any gaol or prison to 
 which this act (4 G. 4, c. 64) shall extend." The 4 G. 4, c. 64, seems 
 to have extended to all prisons excepting Bethlehem, Bridewell, the 
 King's Bench and Fleet Prison, the prison of the Marshalsea and Pa- 
 lace Courts, the MUlbank Penitentiary .and Gloucester Penitentiary, 
 and vessels provided for the reception and employment of convicts 
 sentenced to transportation. As to these prisons and places of de- 
 tention, therefore, the punishment for escapes, provided by 16 G. 2, 
 c 31, was left unaffected by 4 G. 4. c. 64. The 4 G. 4, c. 64, was 
 itself repealed 6y 28 ^ 29 Vict. c. 126, s. 73, but this repeal would 
 not aj/ect the repeal of the 16 6f. 2, c. 31. It would seem, therefore, 
 that the 16 G. 2, c. 31, so far as it relates to escapes from prison, is 
 now merely in force with regard to escapes from the prisons above 
 mentioned, Bethlehem, Brideioell, etc. And even with regard to these 
 prisons — three of which, the Fleet and the prisons of the Marshalsea 
 and Palace Courts, are now abolished, whilst the Queen's Bench 
 became the Queen's Prison, which was discontinued by 25 ^ 26 Vict. 
 c, 104 — it may be doubted whether resort should now be had to the 
 provisions of the 16 Cr. 2, c 31, since the passing of the 28 ^ 29 Vict. 
 c. 126, s. 37 ; the 23 ^ 24 Vict. c. lf>, s. 12, and the 6^-7 Vict. c. 26, 
 ss. 23, 26. The first named of these enactments would appear to pro- 
 vide for escapes from Whitecross Street Prison, substituted for the 
 Queen's Prison by 25 Sf 26 Vict. c. 104, the second for escapes from 
 Bethlehem, and the third for escapes from Millbank. It is a misde- 
 meanor, indictable at common law, to aid a person to escape from 
 eu'itody, who is confined under the remand of the Insolvent Debtors' 
 Court. R. V. Allan, C. if Mar. 295. And aiding and assisting a 
 prisoner, in custody for treason or felony, to make his escape from the 
 constable or officer conveying him, under a warrant, to prison is a 
 felony: penal servitude for not more than seven nor less than five 
 years. 16 G. 2, c. 31, s. 3 ; 20 ^ 21 Vict. e. 3 ; 27 ^ 28 Vict. c. 47, 
 .1. 2. Aiding and assisting prisoners of war to escape is felony : penal 
 servitude for life or for not less than five years. 52 G. 3, e. 156 ; 20 
 ^ 21 Vict. c. 3 ; 27 ^ 28 Vict. c. 47, s. 2 ; see R. v. Martin, R. &■ 
 IR. 196. 
 
 Evidence. 
 
 To support this indictment, prove that J. N. was in custody, and a 
 prisoner in the gaol mentioned in the indictment. The words of the 
 statute are, " any prisoner." Prove that whilst J. N. was so in cus- 
 tody, the defendant conveyed to him one or more files ; and prove 
 that such files were calculated to facilitate his escape, by filing his 
 irons, or the window bars, or the like. The mere delivery of such 
 instruments to the prisoner is a fact from which the jury may well 
 infer the intent, and it is immaterial, upon this statute, whether an 
 escape be actually made or not. 28 d 29 Vict. c. 126, s. 37. A 
 crowbar is an " article or thing" within the meaning of this sec- 
 tion. R. V. Payne, L. R., 1 C. C. R. 27 ; 35 L. J. (M. C.) 170 
 No time is limited for the prosecution of offences against this statute. 
 
 To support an indictment upon the stat. 16 G.2, c. 31, prove tlie 
 charge before the magistrate, the warrant, and that J. N. was in 
 custody in gaol, under the warrant. Where the commitment was on 
 suspicion of felony, it was holden not to be within that act, which 
 extends only to cases where the offence is clearly and plainly ex- 
 
Rescue. 803 
 
 pressed in the warrant, or where the prisoner stands convicted of it. 
 B. V. Walker, 1 Leach, 97 ; and see Id. 98, «., 363. If a prisoner be 
 convicted, it is an offence within this statute to deliver infetruments 
 to him to facilitate his escape, though he be pardoned of the offence 
 of which he was convicted, on condition of transportation, and even 
 though the party delivering the instruments did not know of what 
 specific offence the prisoner was convicted. R. v. Shaw, R. & R. 626. 
 Prove the delivery of the files, as above ; and lastly, prove the 
 offence to have been committed within one year next before the 
 commencement of the prosecution. 16 O. 2, c. 31, «. 4. This statute 
 does not extend to cases where an actual escape is made.. R. v. 
 ra%, 2 Leach, 662. 
 
 Sect. 3. 
 
 RESCUE. 
 
 Statutes. 
 
 1 (£ 2 & 4, c. 88, s. I.] — " Whereas divers daring attempts have of 
 late been made to effect the rescue or prevent the detention of per- 
 sons charged with or committed for or on suspicion of felony ; and 
 whereas it might tend more effectually to prevent the commission 
 of such offences, if such further provisions were made for the punish- 
 ment of persons who may hereafter be convicted thereof, as are here- 
 inafter enacted:" be it therefore enacted, that from and after the 
 passing of this act, if any person shall rescue, or aid and assist in 
 rescuing, from the lawful custody of any constable, officer, head- 
 borough, or other person whomsoever, any person charged with, or 
 suspected of, or committed for any felony, or on suspicion thereof, 
 then, if the person or persons so offending shall be convicted of 
 felony, and be entitled to benefit of clergy, and be liable to be im- 
 prisoned for any term not exceeding one year, it shall be lawful for 
 the court, by or before whom any such person or persons shall be 
 convicted, to order and direct, in case it shall think fit, that such 
 person or persons, instead of being so fined and imprisoned as afore- 
 said, shall be transported beyond the seas for seven years, or be im- 
 prisoned only, or be imprisoned and kept to hard labour, in the com- 
 mon gaol, house of correction, or penitentiary house for any term 
 not less than one and not exceeding three years. 
 
 26 G. % c. 37, s. 9 — Rescuing Murderers while proceeding to Execu- 
 tion.'] — If any person or persons whatsoever shall by force set at 
 liberty or rescue, or attempt to rescue or set at liberty, any person 
 out of prison, who shall be committed for or found guilty of murder, 
 or rescue, or attempt to rescue any person convicted of murder, 
 going to execution, or during execution, eveiy person so offending 
 shall be deemed, taken, and adjudged to be guilty of felony, and 
 shall suffer death, without benefit of clergy. 
 
 7 W. id; 1 Vict. c. 91, s. 1 — Punishment for Rescuing Murderers.'] 
 — Recites 26 G. 2, c. 37, s. 9, and enacts, that if any pei-son shall 
 after the commencement of this act (1st Oct. 1837), be convicted of 
 
804 Rescue. 
 
 ■the offence thereinbefore mentioned, such person shall not suffer 
 death, or liave sentence of death awarded against him or her for the 
 same, but shall be liable, at the discretion of the court, to be trans- 
 ported beyond the seas for the term of the natural life of such per- 
 son, or for any term not less than fifteen years, or to be imprisoned 
 for any term not exceeding three years. 
 
 9 tfe 10 Vict. c. 24, s. 1.2— Ante, p. 174. 
 
 20 <& 21 Vict. c. B.]— Ante, p. 172. 
 
 27 <& 28 Vict. c. 47, s. 2.2— Ante, p. 173. 
 
 7 TF. 4 c6 1 Viet. c. 91, s. 2 — Place and Mode of Imprisonment.} — 
 Ante, p. 182. 
 
 Indictment for the Rescue of a Felon from a Constable. 
 
 State the charge hefore the magistrate, the warrant, the delivery of it 
 to the constable, and J. N.'s being in his custody vmder it, as in the 
 precedent, ante, p. 19b, to the words, " together with the warrant afore- 
 said," inclusive. Then proceed thus} — And the, jurors aforesaid, upon 
 their oath aforesaid, do further present, that the said J. N. and J. T. 
 afterwards, and whilst the said J. N. was in the custody of the said 
 J. S., under the said warrant as aforesaid, and whilst the said J. S. 
 was conveying the said J. N., under and by virtue of the said warrant, 
 to the said gaol of Newgate, to wit, on the day and year last afore- 
 said, in and upon the said J. S., then being a constable as aforesaid, 
 and then lawfully having the said J. N. in his custody, by virtue of 
 the said warrant, for the cause aforesaid, in the due execution of his 
 said office then being, did make an assault, and him the said J. S. did 
 then beat, wound, and ill-treat; and that the said J. T., the said J. N. 
 out of the custody of the said J. S., and against the will of him the 
 said J. S., then unlawftilly and forcibly did rescue and put at large, to 
 go whithersoever he would: and that the said J.N. himself out of the 
 custody of the said J. S., and against the will of him the said J. S., 
 then unlawfully and forcibly did rescue and put at large, to go whither- 
 soever he would : to the great hinderance of justice, in contempt of 
 our lady the Queen and her laws, to the evil example of all others in 
 the like case offending, and against the peace of our lady the Queen, 
 her crown and dignity. 
 
 Fine and imprisonment {with or without hard labour, 14 Sf 15 Vict, 
 c. 100, s. 29, ante, p. 175), as for a misdemeanor, if the party rescued 
 be not convicted of' the offence for which he was in custody ; 2 Hawk. 
 c. 21, s. 8 ; but if he be convicted, then, if for high treason, tlie rescue 
 is high treason; if for felony, felony ; if for a misdemeanor, amis- 
 demeanor, 1 Sahs, 607. If the rescuers be convicted qfjielony, the 
 court, at its discretion, may adjudge them to be kept to penal servi- 
 tude for not exceeding seven, or less than five years, or to be impri- 
 soned, or imprisoned and kept to hard labour, fm- not less than one 
 year, nor more than three years. 1 ^2 O. i, c. 88, «. 1 ; 20 (!)• 21 
 Vict. c. 3 ; 27 ^ 28 Vi<:t. c. 47, s. 2. See 7 Sf 8 G. 4, c. 28, s. 10 
 (ante, p. 173). Rescuing or attempting to rescue a person convicted 
 of murder, xchiht proceeding to execution, or rescuing out of prison a 
 person committed or convicted for murder, isfehmy, 25 G. 2, c. 37, 
 s. 9, penal servitude for life or for not less than five years, or impri- 
 sonment not exceeding three years. 7 W. 4 ^ 1 Vict. c. 91, «. 1; 
 
Being at large during a Sentence of Transportation, etc. 805 
 
 9 ^ 10 Vict. c. 24, s. 1 (ante, p. 174) ; 20 §• 21 Vict. c. 3 (ante, p. 
 172); 27 Sf 28 Vict. c. 47, s. 2 [ante, p. 173) ; */ie imprisonment being 
 with or without hard labour, and with or without solitary confine- 
 ment, not exceeding one month at any one time, nor three months in 
 any one year. 7 Ir . 4 ^ 1 Vict. c. 91, «. 2 {ante, p. 7«2). Rescuing 
 offenders under sentence of transportation from the custody of the 
 superintendent, etc. , conveying them, is punishable in the same manner 
 as if the party had been confined in gaol. 5 O. 4, c. 84, s. 22, infra. 
 Hee a precedent of an indictment for rescuing a distress far rent, 
 Cro. dr. Com. 198 ; and for rescuing cattle, taken damage feasant, 
 out of a pound. Id. 199 ; R. v. Bradshaw, 7 C. Sj- P. 233. 
 
 Evidence. 
 
 Prove the charge before the magistrate, the warrant, and that J. N. 
 was in the custody of J. S. under the warrant. If the party was 
 convicted, the conviction may be proved by a certificate of the proper 
 officer. 14 S 15 Vict. c. 99, s. 13, ante, p. 241. And prove that 
 whilst so in custody the defendant forcibly rescued him, as stated in 
 the indictment. A warrant of a justice of the peace to apprehend a 
 party, founded on a certificate of the clerk of the peace, that an in- 
 dictment for a misdemeanor had been found against such party, is 
 good ; and therefore, if upon such warrant the party be arrested and 
 afterwards rescued, those who are guilty of the rescue may be con- 
 victed of a misdemeanor. .B. v. Stokes, 6 C. & P. 148. 
 
 As to evidence for the defendant, it maybe observed, that any cir- 
 cumstances that will excuse a breach of prison will excuse a rescue. 
 (See ante, p. 799.) 2 Hawk. c. 21, ss. 1, 2. 
 
 Sect. 4. 
 
 BEING AT LARGE DTJEING A SENTENCE OP TKANSPOETATION OE 
 PENAL SEEVITUDE. 
 
 Statutes. 
 
 5 G. 4, c. 84, «. 22— Punishment — Venue."] — If any offender who 
 shall have been or shall be sentenced or ordered to be transported 
 or banished, or who shall have agreed or shall agree to transport or 
 banish himself or herself, on certain conditions, either for life, or any 
 number of years, under the provisions of this or any former act, shall 
 be afterwards at ,large, within any part of his Majesty's dominions, 
 without some lawful cause, before the expiration of the term for 
 which such offender shall have been sentenced or ordered to be 
 transported or banished, or shall have so agreed to transport or 
 banish himself or herself, every such offender so being at large, being 
 thereof lawfully convicted, shall suffer death as in cases of felony, 
 without the benefit of clergy ; and such offender may be tried either 
 in the county or place where he or she shall be apprehended, or in 
 that from whence he or she was ordered to be transported or banished^ 
 and if any person shall rescue or attempt to rescue, or assist in 
 rescuing or attempting to rescue any such offender from the custody 
 of such superintendent or overseer, or of any sheriff or gaoler or other 
 
806 Being at large during a Sentence of Transportation, etc. 
 
 person conveying, removing, transporting or reconveying him or her, 
 or shall convey or cause to be conveyed any disguise, instrument 
 for effecting escape, or arms, to such offender, every such offence 
 shall be punishable in the same manner as if such offender had been 
 confined in a gaol or prison in the custody of the sheriff or gaoler, 
 for the crime of which such offender shall have been convicted; and 
 whoever shall discover and prosecute to conviction any such offender 
 so being at large within this kingdom, shall be entitled to a reward 
 of twenty pounds for every such offender so convicted. 
 
 Sect. 23 — Indictment.'} — In any indictment against any offender for 
 being found at large contrary to the provisions of this or of any 
 other act now made or hereafter to be made, and also in any indict- 
 ment against any person who shall rescue or attempt to rescue, or 
 assist in rescuing any such offender from such custody, or who shall 
 convey or cause to be conveyed any disguise, instrument for effect- 
 ing escape, or arms, to any such offender, contrary to the provisions 
 of this or any other act now made or hereafter to be made, whether 
 such offender shall have been tried before any court or judge within 
 or without the United Kingdom, or before any naval or military 
 court-martial, it shall be sufficient to charge and allege the order 
 made for the transportation or banishment of such offender, without 
 charging or alleging any indictment, trial, conviction, judgment, or 
 sentence, or any pardon or intention of mercy, or signification there- 
 of, of or against, or in any manner relating to such offender. 
 
 Sect. 24 — Euidence of Conviction.'] — The clerk of the court or other 
 officer having the custody of the records of the court where such 
 sentence or order of transportation or banishment shall have been 
 passed or made, shall, at the request of any person on his Majesty's 
 behalf, make out and give a certificate in writing, signed by him, 
 containing the effect and substance only (omitting the formal part) 
 of every indictment and conviction of such offender, and of the sen- 
 tence or order for his or her transportation or banishment (not taking 
 for the same more than six shillings and eightpence), which certifi- 
 cate shall be sufficient evidence of the conviction, or sentence or 
 order for the transportation or banishment of such offender; and 
 every such certificate, if made by the clerk or officer of any court in 
 Great Britain, shall be received in evidence, upon proof of the sig- 
 nature and official character of the person signing the same ; (see 
 8S9 Vict. c. 113, s. 1, ante, p. 263; 14 (& 15 'Vict. c. 99, s. 13, ante, 
 p. 241;) and every such certificate, if made by the clerk or officer of 
 any court out of Great Britain, shall be received in evidence, if 
 verified by the seal of the court, or by the signature of the judge, or 
 one of the judges of the court, without further proof. 
 
 4 (6 5 Tf. 4, c. ei.']— Recites 5 G. 4, c. 84, s. 22, and enacts, that 
 so much of the recited act as inflicts the punishment of death upon 
 persons convicted of any offence therein, and hereinbefore specified, 
 shall be and the same is hereby repealed; and that from and after 
 the passing of this act, any person convicted of any offence above 
 specified in the said act of the fifth year of the reign of his late Ma- 
 jesty King George the Fourth, or of aiding or abetting, counselling 
 or procuring the commission thereof, shall be liable to be transported 
 beyond the seas for his or her natural life, and previously to trans- 
 portation shall be imprisoned, with or without hard labour, in any 
 
Being at large during a Sentence of Transportation, etc. 807 
 
 common gaol, house of correction, prison or penitentiary, for any 
 term not exceeding four years. 
 
 9 <e 10 Vict. c. 24, s. 1.]— Ante, p. 174. 
 
 20 <& 21 Vict. c. 3.]— Ante, p. 172. 
 
 27 (& 28 Vict. c. 47, s. 2.]— Ante, p. 173. 
 
 Indictment. 
 
 Middlesex, to wit : — The jurors for our lady the Queen upon their 
 oath present, that heretofore, to wit, [at the general quarter sessions 
 of the peace, holden at , so continuing the caption of the indict- 
 ment to the words " county committed" (see ante, p. 37) ; then proceed 
 thus] : it was ordered that J. S. should be transported for the term of 
 seven years, to such place beyond the seas as our said lady the 
 Queen," by and with the advice of her privy council, should appoint, 
 [or should be kept in penal servitude for the term of seven years, as 
 the case may 6e], which said order still remains in full force and 
 effect, and not in the least reversed or made void. And the jurors 
 aforesaid, upon their oath aforesaid, do further present, that the said 
 J. S. afterwards, that is to say, after he the said J. S. was so ordered 
 to be transported \or kept in penal servitude] as aforesaid, and be- 
 fore the expiration of the term of seven years for which he the said 
 J. S. was so ordered to be transported [or kept in penal servitude] as 
 aforesaid, to wit, on the first day of June, in the year of our Lord 
 , feloniously and unlawfully and without any lawful cause or ex- 
 cuse whatsoever, was at large within the United Kingdom of Great 
 Britain and Ireland, to wit, at the parish of B., in the county of M. ; 
 against the form [as ante, p. 347]. 
 
 It is suficient in the indictment to charge and allege the order made 
 for the sentence of the offender, withou} charging or alleging any indict- 
 ment, trial, conviction, judgment, or sentence, or any pardon, or intention 
 of mercy, or signification thereof, of, or against, or in any manner re- 
 lating to such offender. 5 G. 4, c. 84, s. 23. See B. v. Fitzpatrick, 
 R. & R. 512. The venue may he laid either in the county where the 
 defendant was apprehended, or in the county whence he was ordered to 
 he transported or kept in penal servitude. 5 (?. 4, c. 84, s. 22. 
 
 Felony : 6 (?. 4, c. 84, s. 22 : penal servitude for life or for not less 
 than five years; with previous imprisonment, mth or without hard 
 lahour, for any term not exceeding four years; or imprisonment, with 
 or without hard lahour, not exceeding two years. 4 c6 5 PF. 4, c. 67 ; 
 9 (§ 10 Vict c. 24, s. 1 (ante, p. 174) ; 20 <& 21 Vict c. 3 (ante, p. 172) ; 
 27 S 28 Vict. c. 47, s. 2 (ante, p. 173). This offence is not triahle at 
 any quarter sessions. 6 S 6 Vict. c. 38, s. 1 (ante, p. 104). There are 
 several other statutes in particular cases. See 59 G. 3, c. 113, s. 17 ; 
 56 G. 3, c. 64, s. 44; 56 G. 3, c. 63, s. 45, as to the Penitentiary ; 6 
 G. 4, c. 85, s. 18, and 4 <6 5 Vict. c. 56, s. 1, as to offenders trans- 
 ported from St. Helena; also the Mutiny Act and Marine Mutiny Act 
 (Annual). 
 
 Evidence. 
 
 Although, since the statute 20 db 21 Vict. c. 3 (ante, p. 172), no 
 sentence of transportation can lawfully be passed, yet inasmuch as 
 >y the third section of that statute, all acts and provisions then ap- 
 
808 Perjury. 
 
 plicable to the punishment of offenders under sentence or orders of 
 transportation, if at large without lawful cause before the expiration 
 of their sentence, and all provisions then applicable to and in the case 
 of persons under sentence or order of transportation, are to apply to 
 and in the case of persons under sentence or order of penal servitude, 
 as if they were persons under sentence or order of transportation, it 
 is necessary to retain in this place the provisions of the 5 G. 4, c. 84, 
 s. 22, and the 4 (6 5 W. 4, c. 67, and to state the evidence by which 
 the offence of being so at large is to be established. 
 
 Prove the sentence or order of transportation or penal servitude by 
 a certificate in writing, which the clerk of the court, or other officer 
 having the custody of the records of the court where such order was 
 made (see R. v. Jones, 2 C. <& K. 524 : jS. v. Parsons, L. J{., 1 C. C. 
 B. 24; 35 L. J. (M. C.) 167), must give upon application, and which 
 is made evidence if it purport to be signed by the person having the 
 custody of the records of the. courts, without any proof of the signa- 
 ture or official character of such person; 8 d 9 Vict. c. 113, s. 1, 
 ante, p. 263; or if it be a court out of Great Britain, if verified by the 
 seal of the court, or by the signature of the judge or one of the 
 judges of the court, without further proof 5 G. 4, c. 84, s. 24 ; see 
 also 14 <& 16 Vict. c. 99, s. 13, ante, p. 241. The certificate must 
 contain the effect and substance of the indictment and conviction of 
 such offender, and of the sentence or order for transportation or 
 penal servitude. Merely stating that the prisoner was convicted of 
 felony, without stating the nature of the felony, is insufficient. R. 
 V. Watson, R. & R. 468. You must also prove the prisoner's 
 identity. 
 
 Prove also that the defendant was at large before the expiration of 
 the term for which he was ordered to be transported or kept in penal 
 servitude; and it is for the defendant to show that he was justified in 
 being at large, as, for instance, that he was pardoned, or the like. 
 The fact of the sentence being in force when the defendant was found 
 at large is sufficiently proved by the certificate of the conviction and 
 sentence — the judgment remaining unreversed; although it appear 
 on the face of the certificate, that the sentence was one which could 
 not legally have been inflicted on the defendant for the offence of 
 which, according to the certificate, he had been convicted. R. v. 
 Finney, i C. & K. 774. 
 
 The judge at the trial has power to order the county treasurer to 
 pay the prosecutor the reward under the 5 G. 4, c. 84, s. 22. R. v. 
 Emmons, 1 M. & Rob. 279. 
 
 Sect. 5. 
 
 PERJURY. 
 
 Statutes. 
 
 2 G. 2, c. 25, «. 2— P«m«Amew*.] — The more effectually to deter per- 
 sons from committing wilful and corrupt perjury, or subornation of 
 perjury, besides the punishment already to be inflicted by law for so 
 great crimes, it shall and may be lawful for the court or judge before 
 
Perjury. 809 
 
 -whom apy person shall be convicted of wilful and corrupt peqnry or 
 subornation of perjury, according to the laws now in being, to order 
 such person to be sent to some house of correction within the same 
 county, for a time not exceeding seven years, there to be kept to 
 hai'd labour during all the said time, or otherwise to be transported 
 to some of his Majesty's plantations beyond the seas, for a term not 
 exceeding seven years, as the court shall think most proper; and 
 thereupon judgment shall be given, that the person convicted shall 
 be committed or transported accordingly, over and besides such 
 punishment as shall be adjudged to be inflicted on such person, agree- 
 able to the laws now in being ; and if transportation be directed, the 
 same shall be executed in such manner as is or shall be provided by 
 law for the transportation of felons ; and if any person, so committed 
 or transported, shall voluntarily escape or break prison, or return 
 from transportation, before the expiration of the time for which he 
 shall be ordered to be transported as aforesaid, such person, being 
 thereof lawfully convicted, shall suffer death as a felon, without 
 benefit of clergy, and shall be tried for such felony in the county 
 where he so escaped, or where he shall be apprehended. 
 
 1 W.i& 1 Vict. c. 23 — Pillory abolished.'] — Judgment shall not 
 be given or awarded against any person or persons convicted of any 
 offence, that such person or persons do stand in or upon the pillory, 
 any law, statute, or usage to the contrary notwithstanding; provided 
 that nothing herein contained shall extend or be construed to extend 
 in any manner to change, alter, or affect any punishment whatsoever 
 which may now by law be inflicted in respect of any offence, except 
 only the punishment of pillory. 
 
 14 <6 15 Vict. c. 100, s. 19 — Prosecution hy direction of Judge.l — 
 " Whereas by an act of parliament passed in England in the twenty- 
 third year of the reign of his late Majesty King G-eorge the Second, 
 intituled ' An Act to render Prosecutions for Perjury and Subornation 
 of Perjury more easy and effectual,' and by a certain other act of 
 parliament made in Ireland, in the thirty-first year of the reign of his 
 late Majesty King George the Third, intituled ' An Act to render 
 Prosecutions for Perjxny and Subornation of Peijury more easy and 
 effectual, and for affirming the Jurisdiction of the Quarter Sessions 
 in cases of Perjuiy,' certain provisions were made to prevent persons 
 guilty of perjuiy and subornation of perjury, from escaping punish- 
 ment by reason of the difficulties attending such prosecutions : and 
 whereas it is expedient to amend and extend the same :" be it 
 enacted, that it shall and may be lawful for the judges or judge of 
 any of the superior courts of common law or equity, or for any of her 
 Majesty's justices or commissioners of assize, Nisi Prius, oyer and 
 terminer, or gaol delivery, or for any justices of the peace, recorder 
 or deputy recorder, chairman, or other judge, holding any general or 
 quarter sessions of the peace, or for any commissioner of bankruptcy 
 or insolvency, or for any judge or deputy judge of any county court 
 or any court of record, or for any justices of the peace in special or 
 petty sessions, or for any sheriff or his lawful deputy before whom 
 any writ of inquiry or writ of trial from any of the superior courts 
 shall be executed, in case it shall appear to him or them that any 
 person has been guilty of wilful and corrupt perjur/in any evidence 
 given, or in any affidavit, deposition, examination, answer, or other 
 proceeding made or taken before him or them, to direct such person 
 
810 Perjury. 
 
 to be prosecuted for such perjury, in case there shall appear to him 
 or them a reasonable canse for such prosecution, and to commit such 
 person so directed to be prosecuted until the next session of oyer 
 and terminer or gaol delivery for the county or other district within 
 which such perjury was committed, unless such person shall enter 
 into a recognizance, with one or more sufficient surety or sureties, 
 conditioned for the appearance of such person at such next session of 
 oyer and terminer or gaol delivery, and that he will then surrender 
 and take his trial, and not depart the court without leave, and to 
 require any person he or they may think fit to enter into a recogni- 
 zance, conditioned to prosecute or give evidence against such person 
 so directed to be prosecuted as aforesaid, and to give to the party so 
 bound to prosecute a certificate of the same being directed, which 
 certificate shall be given without any fee or charge, and shall be 
 deemed sufficient proof of such prosecution having been directed as 
 aforesaid ; and upon the production thereof the costs of such pro- 
 secution shall and are hereby required to be allowed by the court 
 before which any person shall be prosecuted or tried in pursuance of 
 such direction as aforesaid, unless such last-mentioned court shall 
 specially otherwise direct ; and when allowed by any such court in 
 Ireland, such sum as shall be so allowed shall be ordered by the said 
 court to be paid to the prosecutor by the treasurer of the county in 
 which such offence shall be alleged to have been committed, and the 
 same shall be presented for, raised, and levied in the same manner 
 as the expenses of prosecutions for felonies are now presented for, 
 raised, and levied in Ireland ; provided always, that no such direc- 
 tion or cej.'tificate shall be given in evidence upon any trial to be had 
 against any person upon a prosecution so directed as aforesaid. 
 
 Bed. 20— i^'onre of Indictment for Perjury 7\—\ti every indictment 
 for perjury, or for unlawfully, wilfully, falsely, fraudulently, deceit- 
 fully, maliciously, or corruptly taking, making, signing, or subscribing 
 any oath, affirmation, declaration, affidavit, deposition, bill, answer, 
 notice, certificate, or other writing, 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, affirmation, declaration, affidavit, de- 
 position, bill, auswex', notice, certificate, or other writing was taken, 
 made, signed, or subscribed, without setting forth the bill, answer, 
 information, indictment, declaration, or any part of any proceeding 
 either in law or in equity, and without setting forth the commission 
 or authority of the court or person before whom such offence was 
 committed. 
 
 Se,ct. 21— Form of Indictment for Subornation of Perjury."] — In 
 every indictment for subornation of perjury, or for corrupt bargain- 
 ing or contracting with any person to commit wilful and corrupt 
 perjury, or for inciting, causing, or procuring any person unlawfully, 
 wilfully, falsely, firaudulently, deceitfully, maliciously, or corruptly 
 to take, make, sign, or subscribe any oath, affirmation, declaration, 
 affidavit, deposition, bill, answer, notice, certificate, or other writing, 
 it shall be sufficient, wherever such peijury or other offence aforesaid 
 shall have been actually committed, to allege the offence of the 
 person who actually committed such perjury or other offence in the 
 manner hereinbefore mentioned, and then to allege that the defend- 
 ant unlawfully, wilfully and corruptly did cause and procure the said 
 person the said offence, in manner and form aforesaid, to do and 
 
Perjury. 811 
 
 commit; and whenever such perjury or other offence aforesaid shall 
 not have been actually committed, it shall be sufficient to set forth 
 the substance of the offence charged upon the defendant, without 
 setting forth or averring any of the matters or things hereinbefore 
 rendered unnecessary to be set forth or averred in the case of wilful 
 and corrupt perjury. 
 
 Sect. 22 — Certificate of Trial of Indictment on which Perjury was 
 committed.'] — A certificate containing the substance and effect only 
 (omitting the formal part) of the indictment and trial for any felony 
 or misdemeanor, purporting to be signed by the clerk of the court or 
 other officer having the custody of the records of the court where 
 such indictment was tried, or by the deputy of such clerk or other 
 officer (for which certificate a fee of six shillings and eightpence and 
 no more shall be demanded or taken), shall, upon the trial of any 
 indictment for perjury or subornation of perjury be sufficient evidence 
 of the trial of such indictment for felony or misdemeanor, without 
 proof of the signature or official character of the person appearing to 
 have signed the same. 
 
 20 & 21 Vict. c. 3.]— Ante, p. 172. 
 
 27 d 28 Vict. c. 47, «. I.]— Ante, p. 173. 
 
 Indictment for Perjury in an Affidavit to hold to Bail. 
 
 Central Criminal Court, to wit: — The jurors for our lady the Queen 
 upon their oath present, that J. S., wickedly and maliciously contriving 
 and intending unjustly to aggrieve one J. N., and to put him the said 
 J. N. to great expense, and also unjustly and maliciously to cause him 
 the said J. N. to be arrested by virtue of a certain writ of our lady 
 the Queen, called a capias, to be sued out and prosecuted at the in- 
 stance of him the said J. S., on the first day of June, in the year of our 
 
 Lord , at London aforesaid, came in his proper person before Sir 
 
 C. C, knight, then being one of the justices of the court of our lady 
 the Queen, before the Queen herself, and then produced a certain 
 affidavit in writing of him the said J. S., and then before the said Sir 
 C. C, knight, in due form of law was sworn, and took his corporal 
 oath upon the Holy Gospel of G-od concerning the truth of the matters 
 contained in the said affidavit; and that the said J. S., being so sworn 
 as aforesaid, then and there, upon his oath aforesaid, before the said 
 C. C, knight, so being such judge as aforesaid, falsely, corruptly, 
 knowingly, wilfully, and maliciously, in and by his said affidavit in 
 writing, did depose and swear (amongst other things) in substance 
 and to the effect following, that is to say, that J. N. (meaning the 
 said J. N. above mentioned) was then justly and truly indebted unto 
 him the said J. S. in the sum of fifty pounds, for goods sold and de- 
 livered by the said J. S. to the said J. N., and at his (meaning the 
 said J. N.'s) request; as in and by the said affidavit of the said 
 J. S., filed in the said court of our said lady the Queen, before the 
 Queen herself, more fully and at large appears : Whereas, in truth 
 and in fact, the said J. N., at the time the said J. S. took his said 
 oath and made his affidavit aforesaid, was not indebted to him the 
 said J. S. in the sum of fifty pounds for goods sold and delivered by 
 the said J. S. to the said J. N.; and whereas, in truth and in fact, the 
 said J. N. was not then indebted to the said J. S. in the sum of fifty 
 
812 Perjury, 
 
 pounds on any account whatsoever ; and whereas, in truth and in 
 fact, the said J. N. was not then indebted to the said J. S. in any 
 sura whatsoever, on any account whatsoever :' And so the jurors 
 aforesaid, upon their oath aforesaid, do say, that the said J. S., on the 
 first day of June, in the year last aforesaid, before the said Sir C. C, 
 knight, so being such judge as aforesaid, by his own act and consent, 
 and of his own most wicked and corrupt mind, in manner and form 
 aforesaid, falsely, wickedly, wilfully and corruptly did commit wilM 
 and corrupt perjury ;" to the great displeasure of Almighty God, in 
 contempt of our lady the Queen and her laws, to the evil and per- 
 nicious example of all others in the like case offending, and against 
 the peace of our lady the Queen, her crown and dignity. See the 
 precedents, 4 Went. 230, 249, 271 ; €ro. Cir. Com. 339, 340, 356. Two 
 or more cannot be jointly indicted for perjury. ' R. v. PhiUips, 2 Str. 
 921. It is not necessary to set out the jurat of the affidavit; R. v. 
 JEmden, 9 East, 437 ; nor is it necessary to state or prove that the affi- 
 davit was affiled in or exhibited to the court, or in any manner used by 
 the defendant or others. R. v. Crossley, 1 T.R.S\6, But the indict- 
 ment must show a proceeding pending, in order to give jurisdiction to 
 the person administering the oath, R.v, Pearson, 8 CSf- P, 119. See 
 R. V. Koops, e A.ij- £1. 198: R.-v, Gardiner, 2 Mood. C. C. 93; 8 
 C. Sr P. 737. Where the perjury was charged to have been committed 
 in an affidavit sworn on an interpleader rule, and the indictment set 
 forth the circumstances of the previous trial, the verdict, judgment, and 
 execution, the notice by the defendant to the sheriff not to sell the goods, 
 and his affidavit that they were his property, but omitted to state that a 
 rule had been obtained under the Interpleader Act, it was held bad, as 
 not showing that the affidavit was made in a judicial proceeding, R. v. 
 Bishop, C Sj- Mar. 302. And whei<e the indictment stated that certain 
 persons tnere commissioners acting in the execution of certain acts of 
 parliament relating to the duties of assessed taxes ; and that at a meeting 
 held by them for the purpose of hearing and determining appeals against 
 the certificate of supplementary charges made by J. L., crown surveyor, 
 in pursuance of the said acts, a certain appeal of one W. H, came on 
 in due form of law to he heard; and that the defendant appeared before 
 the said commissiotiers as a witness for W. H. on the hearing of the 
 said appeal, and took his corporal oath, etc., it was held bad, as not 
 sufficiently showing that the oath was tahen in a judicial proceeding, 
 Overton v. 2?., 4 Q. B. 83; 3 G, <^ D. 133: R. v. Overton, 12 L. J, 
 (M. C.) 61, S. C. See also R. v. Bartlett, 1 Dowl. Sf i. 95; 12 
 L. J. (M. C.) 127. But where the indictment alleged, that in the 
 county court of Middlesex, holdenat,etc., in the county of Middlesex, 
 before J. M., then being the judge of the said court, a certain action 
 of contract then pending in the said court, between A. B., plaintiff, 
 and C. D., defendant, came on to be tried, upon rohieh trial J. S. was 
 duty sworn, etc, before the said J, M., then beingjudge<fthe saidcourt, 
 and thenhaving sufficient and competent authority to administer the said 
 oath to the said J, S. in thai belialf: this was held to show sufflcienily 
 that the court in which the action was tried was held in pursuance of 
 the Stat. 9^10 Vict. c. 95; and also that the proceeding was one over 
 which that court had jurisdiction, Lavey v. JS., 2 Den'. 504; 17 Q.B. 
 496; 21 X. J. {M. C.) 10. In an indictment for perjury on t/ie 
 trial of a cause under a writ of trial directed to the sheriffs of London, 
 the oath is properly alleged to have been tahen before the sheriffs, 
 though in fact the trial was had before the secondary, R, v. 
 Schlesinger, 10 Q. B. 670; 17 L, J. (M, C.) 29. The indictment 
 must allege that the defendant swore wilfully and corruptly; R, v. 
 
Perjury. 813 
 
 Siemens, 5 B. Sc C. 246; and also that he swore falsely ; and where 
 the word "feloniously" was inserted instead of "falsely," the indict- 
 ment (though it alleged that the defendant swore wi^'ully, corruptly, 
 and maliciously) was held bad in substance, and not amendable, i?. v. 
 Oxley, S C. Sj- K. 317. The allegation between the * * — " And so the 
 jurors aforesaid," etc., is surplusage and may be refected. Ryalls v. 
 R., 11 Q. B. 781; 17 L. J. (M. C.) 92: B. v. Hodgkiss, L. R., 1 
 C. C. R. 212; 39 L.J. (M. C.) 14. Where a true bill fin- petyury 
 ibas found, and thejwdffe at the assizes having refused to try it on 
 account of manifest imperfections in the record, a new bill was pre- 
 ferred, whereupon the defendant was found guilty; but a new trial 
 was granted; and then the prosecutor, instead of taking down the old 
 record again, preferred a new indictment (for the same offence), and 
 removed it into the Court of King's Bench by certiorari, the court 
 refused to stay proceedings upon that indictment until the prosecutor 
 paid the costs of the former proceedings. R. v. Tremeame, o B. &■ 
 C. 761 ; 7 Dowl. ^ Ry. 684. 
 
 It is the practice of the Central Criminal Court not to try an indict- 
 ment for peryury arising out of a civil action until that action is deter- 
 mined, unless the civil action be postponed by the court, that the in- 
 dictment may be tried first. R. v. Ashburn„ 8 C. £/■ P. 50. And 
 where justices refused to hear a charge of perjury, alleged to have 
 been committed in a suit pending at the time when the charge was 
 made, on the ground that the suit was still pending, the Queen's Bench 
 refused to mandamus them to hear the charge, and expressed an 
 opinion that the course taken by the justices was the most likely one to 
 answer the ends of justice. R. v. Ingham, li Q. B. 396:, 19 L. J. 
 (M. C.) 69. 
 
 Perjury is punishable at common law with fine and imprisonment 
 (to hard labour, 3 G. 4, c. 1 1 4), at the discretion of the court ; and by 
 Stat. 2 0. 2, c. 25, s. 2, the judge may order the party to be transported, 
 or to be imprisoned and kept to hard labour in the house of correction, 
 for any term not exceeding seven years. And by 20 ^ 21 Vict: c. 3, 
 and 27 ^ 28 Vict. c. 47, s. 2, a sentence of penal servitude for any term 
 not exceeding seven years nor less than five is substituted for the sen- 
 tence of transportation. The judge may also require the offender to 
 find sureties to keep the peace and be of good behaviour for a further 
 period. R. v. Hart, 30 St. Tr. 1344: tlunn v. R., 12'Q. B. 1026; 
 18 1. J. (M. C.) 41. The false affirmation of a Quaker, Moravian, 
 or Separatist, or of a person who shall have been a Quaker, or a 
 Moravian, or of any person who by law is authorized to make an 
 affirmation or declaration in lieu of an oath, is punishable in the same 
 manner. 22 G. 2, e. 46, s. 36 ; 9 G. 4, c. 32, *. 1 ; 3^4 W. 4, c. 49 ; 
 3 ^ 4 Tf. 4, c. 82; 14-2 Vict. c. 77 ; 24 A- 25 Vict. c. 66 ; 32 ^ 33 
 Vict. c. 68, s. 4. See 5 ^ 6 W. 4, c. 62, as to false declaratiojts in 
 lieu of oaths; and 1^2 Vict. c. 105, as to the form of administering 
 oaths (ante, p. 285). 
 
 No indictment can be preferred for perjury, unless one or other of 
 the preliminary steps, required by 22 Sf 23 Viet. c. 17, s. 1, has been 
 taken (ante, p. 4). 
 
 The offences of perjury and subornation of perjury, etc., are not 
 triable at any quarter sessions. See 5^6 Vict. c. 38, s. 1 (ante, p. 
 104). Nor, as it seems, had justices oj' the peace cognizance of the 
 offence of perjury at common law, so as to apprehend or commit a 
 person charged with it, until the statute 11 Sf 12 Vict. c. 42, s. 1, gave 
 them power to grant a warrant for any indictable offence. See R, v. 
 
814 Perjury. 
 
 Sartlelt, 1 Dowl Sj-L.Qo; 12 L. J. {M. C.) 127 ; 2 Hawk. c. 8, ». 64 ; 
 
 1 Brod. ^ B. 548 ; 3 6?. ^ X». 210. 
 
 An oath or affirmation, to amount to perjury, must be taken in a 
 judicial proceeding before a competent jurisdiction ; it must also 
 be material to the question depending, and false. B. v. Aylett, 1 T. 
 R. 69. 
 
 1. It must be taken in a judicial proceeding. — As if the defendant 
 swear falsely, when examined as a witness at a trial; or in an answer 
 to a bill in equity, 5 Mod. 348 ; 3 Inst. 166 ; or in depositions in a 
 court of equity, 6 Mod. 348 ; or in an affidavit in the courts of 
 Queen's Bench, Common Pleas, Chancery, etc., 5 Mod. 348 ; 1 Sham. 
 835, 397 ; 1 Rol. Rep. 79, per Coke, C. J. ; or upon a commission for 
 the examination of witnesses. Ore. Car. 99 ; see 1 Bos. & P. 240 ; or 
 in justifying bail in any of the courts ; or upon an examination be- 
 fore a magistrate; or in a judicial proceeding in a court baron, 5 Mod. 
 348 ; 1 Mod. 55, per Twisden, J., or ecclesiastical court, 5 Mod. 348 ; 
 or before a local marine board, ^. v. Tomlinson, L. R., 1 C. G. R. 49; 
 36 L. J. (M. C.) 41 ; or before a judge trying an election petition, 
 31 d 32 Vict. c. 125, s. 31 ; or any other court, whether of record or 
 not. See 1 Hawh. c. 69, s. 3. It has been doubted whether perjury 
 could be assigned upon the oath made for the purpose of obtaining a 
 marriage licence ; R. v. Alexander, 1 Leach, 63 ; hut see 1 Vent. 370; 
 and in R. v. Foster, R. <& R. 459, a false oath taken before a surro- 
 gate, to procure a marriage licence, was holden not sufficient to sup- 
 port a prosecution for perjury. In such a case it has been usual to 
 indict as for a mere misdemeanor at common law, and such an 
 indictment is certainly sustainable ; see R. v. Chapman, 1 Den. 432 ; 
 
 2 a (6 .ff. 846 ; 18 L. J. (M. C.) 152 : iJ. v. Hodghiss, L. R., 1 C. C. R. 
 212; 39 L. J. {M. C.) 14. And if an indictment for such a common 
 law misdemeanor contains the words " and so the defendant did 
 commit wilful and aoxrocgt perjury," this allegation may be rejected 
 as surplusage, and the defendant may nevertheless be convicted of 
 the common law misdemeanor ; R. v. Hodghiss, ubi supra; in which 
 case it was held that making a false affidavit before a commissioner 
 for taking oaths in the Queen's Bench for the purpose of getting a 
 bill of sale filed under the Bills of Sale Act, 1854, was a misde- 
 meanor though not perjury. If on a prosecution for taking a false 
 oath before a surrogate to procure a marriage licence, the indictment 
 only charges the taking the false oath, without stating that it was 
 for the purpose of procuring a licence, or that a licence was thereby 
 procured, the party cannot (at common law) be punished thereon as 
 for a misdemeanor; but if tlie purpose is to obtain a licence, and the 
 licence is obtained, and the marriage had, the party may be indicted 
 as for a misdemeanor. R. v. Foster, R. & R. 459. See now stat. 
 6 <& 7 W. 4c, c. 85, s. 38, which subjects a false declaration made for 
 the purpose of procuring a marriage, to the penalties of perjury. 
 Perjury may, it seems, be assigned upon the oath against simony, 
 taken by clergymen at the time of their institution. R. v. Lm>is, 1 
 Str. 70. 
 
 The judge of the Sheriffs' Court in London has no power to amend 
 a summons issued upon a judgment recovered in a plaint by a single 
 woman, by adding the name of a man whom she had married subse- 
 quently to obtaining the judgment, and therefore the person against 
 whom such judgment had been recovered cannot be convicted of 
 perjury committed by him upon the hearing of such an amended 
 judgment summons, he having been sworn in a cause which has in 
 
Ferjwry. 815 
 
 fact no existence. R. v. Pearce, B B. S S. 531 ; 32 L. J. {M. C.) 
 75. 
 
 2. It must be taken hefore a oompetmt jurisdiction. — For, if it 
 appear to have been taken before a person who had no lawful autho- 
 rity to administer it, 3 Inst. 165, 166, or who had no jurisdiction of 
 the cause, S Inst. 166; Yelv. Ill, the defendant must be acquitted. 
 See R. V. Orossley, 7 T. R. 316; 1 Hawk. c. 69, ss. 3, 4; Bac. Ahr. 
 Peijury (A) : R. v. Dunn, ID.&R.IQ: R. v. Hanks, 3 C. <& P. 419 : 
 R. V. Townsend, 10 Cox, 356 ; 4 F. d F. 1089. But it is not neces- 
 sary in the indictment to show the nature of the authority of the 
 party administering the oath. R. v. Callanan, 6 B. S C. 102. An 
 indictment for peijury upon the hearing of an information for penal- 
 ties under the Beer Act, 1 W. 4, c. 64, s. 15, did not allege that the 
 magistrates were acting for the division in which the house was 
 situated, and upon that ground was held to be bad. R. v. Rawlins, 
 8 C. & P. 439. The decision in that case was on the ground that 
 such justices alone had jurisdiction under the statute to hear the 
 information, but where the statute creating the offence gave the 
 jurisdiction to justices of the county, it was held sufficient to state 
 that the hearing, out of which the charge of perjury arose, took place 
 before justices of the county. jR. v. Shaw, L. & C. 579 ; 34 L. J. 
 (M. C) 169. Commissioners of bankruptcy, acting under a fiat 
 grounded on an insufficient petitioning creditor's debt, have autho- 
 rity to take examinations in order to the adjudication that the party 
 is a bankrupt, but not afterwards ; and therefore a person swearing 
 falsely before them, after the adjudication, is not guilty of peijury. R. 
 V. Emngton, 2 Mood. C. C. 223 ; C. & Mar. 319. See the 12 <fe 13 Vict, 
 c, 106, s. 254. An affidavit of debt filed in the Court of Bankruptcy, 
 under 1 c§ 2 Vict. c. 100, s. 8, for the purpose of causing a person to 
 be adjudged bankrupt, was held to be properly sworn before a regis- 
 trar of that court, by virtue of the 5 c§ 6 Vict. c. 122, s. 67. Dunn v. 
 R., 12 Q. B. 1026 ; 18 L. J. (M. C.) 41. A person is indictable who 
 gives false evidence before a grand jury on a bill of indictment, and 
 the false swearing may be proved by the evidence of other witnesses 
 examined before them on the same bill. R. v. Hughes, \ C. d> K. 
 519. An arbitrator to whom a cause is referred under the provisions 
 of the County Courts Act, 9 ^6 10 Vict. c. 95, s. 77, had formerly no 
 authority to administer an oath : for the statute 3 i£ 4 TF. 4, c. 42, 
 s. 41, giving such power to arbitrators, applies only to proceedings 
 in the superior courts. Perjury could not therefore be assigned on 
 a false oath taken before such an arbitrator. R. v. Hallett, 2 Den. 
 237 ■,3C.&K. 130 ; 20 L. J. (M. C) 197. But such arbitrator now 
 has power under the 14 <& 15 Vict. c. 99, s. 16, to administer an oath. 
 Under the 7 c6 8 Vict. c. 101, justices of the peace have power to 
 entertain a second application for an order in bastardy, after the first 
 application has been dismissed on the merits : therefore, perjury may 
 be well assigned on a false oath taken before them on the hearing of 
 such second application. R. v. Cooke, 2 Den. 462 ; 21 L. J. {M. C.) 
 136 : see R. v. Brisiy, 1 Den. 416 ; 18 L. J. {M. C.) 157. Under the 
 24th section of the 7 tfe 8 G. 4, c. 30, which gave a magistrate juris- 
 diction to convict summarily in cases of malicious injury to property 
 {see now 24 <& 25 Vict. c. 97, s. 52), it was held that he might adju- 
 dicate and convict, although there was not an information on oath, 
 notwithstanding s. 30. R. v. Millard, Dears. 167: 22 L.J. (Jf. C.) 108. 
 To sustain an indictment for perjury committed on the hearing of an 
 affiliation summons, it must appear that the woman's residence was 
 within the petty sessional division in which the summons is heard ; 
 
816 Perjury. 
 
 seel S^ Vict. c. 101, s. 2. R. v. Hughes, Dears. t6 B. 188. Assuming 
 that such summons ought to issue only upon evidence given on oath 
 of the payment of money by the putative father within twelve months 
 before, the objection is waived by his appearing on the summons, 
 and submitting to the jurisdiction of the petty sessions ; for this is 
 not a proceeding in pomam, but is in the nature of a civil suit. R. v. 
 Berry, Bell, 46 ; 28 L. J. (if. C.) 86 : see R. v. Lightfoot, 6E.& B. 
 822 : R. V. Simmons, Bell, 168 ; 28 L. J. {M. C.) 183. _ Upon an in- 
 dictment for perjury committed at the hearing of an information in 
 bastardy, which indictment alleged the application for a summons, 
 the issuing thereof, and the hearing upon it, proof of the information, 
 of the appearance of the defendant, of the hearing, of evidence being 
 given on both sides, and of no objection being made of the want of 
 a summons, is sufficient to show jurisdiction in the justices, without 
 proof of the summons. R. v. Smith, L. R., 1 C. C. R. 110; 37 L. J. 
 (M. C.) 6. And if a party is before a magistrate, and he is then 
 charged with the commission of an offence within the jurisdiction of 
 that magistrate, the latter has jurisdiction to proceed to hear the 
 charge without any information or summons having been previously 
 issued, (unless the statute creating the offence imposes the necessity 
 of taking some such step,) and the witnesses, if they swear falsely, 
 will be liable to an indictment for perjury. R. v. Shaw, L. & C. 
 579 ; 34 L. J. (M. C.) 169. On an indictment for perjury on the 
 hearing of a complaint for trespass in pursuit of game, it appeared 
 that the complaint alleged that the defendant was in the close for 
 the purpose of destroying game, but it did not allege that it was for 
 the purpose of destroying game there; the complaint was held to be 
 sufficient in form to give the justices jurisdiction so as to make false 
 evidence on the hearing perjury. R. v. Western, L. R., 1 C. C. R. 
 122 ; 37 L. J. {M. C.) 81. A master extraordinary in Chancery has 
 no power to administer an oath in a suit in the Court of Admiralty. 
 R. V. Stone, Dears. 251 ; 23 L. J. (M. C.) 14. 
 
 On an indictment for perjury committed by an insolvent on his 
 examination before the Insolvent Court, where proof is given of the 
 filing of the petition, it will be presumed that the sittings of the 
 court are lawfully holden, it being a court of record, and having 
 jurisdiction by the filing of the petition to institute an examination 
 of the insolvent. Therefore no evidence need be given that due 
 notice of the filing of the petition had been inserted in the G-azette, 
 or that a day had been appointed for the examination of the insol- 
 vent, and had been duly adjourned, though these facts are alleged in 
 the indictment. R. v. Westley, Bell, 193 ; 29 L. J. (M. C.) 35. 
 
 3. That part of the oath upon which the perjury is assigned must 
 be material to the matter then under the consideration of the court, 
 3 Inst. 167 : R. v. Giriepe, 1 Ld. Raym. 256 : R. v. Nichol, IB.&Ald. 
 21 : R. V. Toimsend, 10 Cox, 366 ; iF.d F. 1089.— As, for instance, 
 if a witness be asked whether goods were paid for on a particular 
 day, and he answer in the affirmative — if the goods were really paid 
 for, though not on that particular day, it will not be perjury, 2 Rol. 
 Rep. 41, 42, unless the day be material. So, if a man swear that 
 J. S. beat another with a sword, and it turn out that he beat him 
 with a stick, this is not perjury ; for all that was material was the 
 battery. Metley,97. SeelEawh.c.69,s.8. But perjury may be as- 
 signed upon a man's testimony as to the credit of a witness. 2 Salh. 
 514. So, every question in cross-examination which goes to the 
 witness's credit (as, whether he has before been convicted of felony ;. 
 
Perjury. 817 
 
 B. V. Lawy, 3 C.<&K. 26) is material for tliis purpose. E. v. Overton, 
 2 Mood. C. C. 263 ; C. & Mar. 655. In R. v. Tyson, 11 Cox, 1, 4, a 
 doubt was, however, expressed by Kelly, C. B., and Byles and Lush, 
 33., whether a false statement which goes only to the credit of the 
 person making it can be the subject of an assignment of perjury. On 
 the hearing of an application for an affiliation order against H., in 
 respect of a full-grown bastard child born in March, the mother, in 
 answer to questions put to her in cross-examination, denied having 
 had connexion with G-. in the September previous to the birth. G. 
 was called to contradict her, and he wilfully and falsely swore that 
 he had had connexion with her at the time specified. It was held, 
 that although the evidence of Gr. ought not to have been admitted to 
 contradict the mother on a matter which went only to her credit, 
 still, as it was admitted, it was evidence material to her credit ; and, 
 consequently, so far material in the inquiry before the justices as to 
 be capable of being made the subject of an indictment against G. 
 for pequry. R. v. Gibhom, L. & C. 109 ; 31 L. J. (M. C.) 98. Upon 
 an indictment for robbery committed on the night of the 13th April, 
 a witness swore, not only (1) that the prisoner was at home on that 
 night, but (2) that the prisoner had lived in the same house for two 
 years previous, and (3) that during the whole of that time he had 
 not been absent from home for more than three nights. The last 
 two statements were proved to be false, and it was held that they 
 were material, and the proper subjects of assignments of perjury, 
 inasmuch as they tended to render more probable the statement that 
 the prisoner was at home on the night of the 13th April. R. v. 
 Tyson, L. R., 1 C. G. R. 107 ; 37 L. J. (M. C.) 7. Evidence of the 
 payment of money by the putative father of a bastard child, within 
 twelve months before the issuing of an affiliation summons against 
 him, is material on the hearing of such summons. R. v. Berry, Bell, 
 46 ; 28 L. J. {M. C.) 86. Where a prisoner charged with robbery 
 before a magistrate, having cross-examined the prosecutor whether 
 he had not, the day before that of the alleged robbery, met him (the 
 prisoner) in company with M., and proposed to him to commit a 
 burglary, and the prosecutor having denied this, the prisoner called 
 M. to prove it, it was held that M.'s evidence was not material to 
 the issue, so as that it could be made the subject of an indictment for 
 perjury. B. v. Murray, 1 F.S F. 80. On the trial of A. for perjury, 
 in an affidavit made by him, and used on the taxation of costs, the 
 signature to the affidavit was proved to be in A.'s handwriting, but 
 the commissioner who had administered the oath was unable to 
 identify A. as the person who made the affidavit. B. was thereupon 
 called as a witness, and swore that the affidavit was used before the 
 taxing-master when A. was present, and that it was then publicly 
 said that it was A.'s affidavit. B. was afterwards indicted for per- 
 jury on A.'s trial, and it was held that the above evidence given by 
 him on that trial was material as corroborative evidence of the affi- 
 davit having been made by A. R. v. Alsop, 11 Cox, 264 (C. C.R.). 
 On the trial of an action of trover, the plaintiff's case was that the 
 defendant had tricked him out of the goods, the subject of the action, 
 while the plaintiff was drunk. The defendant's case was that he had 
 fairly bought the goods from the plaintiff, who had sent for the goods 
 from a railway station where they were lying, had signed a delivery 
 note for them, and had then sold them to the defendant. The de- 
 fendant, who was called as a witness in support of his own case, 
 swore that the plaintiff's name on the dcliveiy note was plaintiff's 
 
 W. N N 
 
818 Peijurg. 
 
 ■writing, and that he saw him write it. It was held that this was 
 evidence material to the issue, and upon which, therefore, perjury 
 might be assigned, the question in the action being whether the 
 plaintiff had been imposed on by a fraud while drunk, and it there- 
 fore became essential to ascertain whether the handwriting on the 
 delivery note was his, as a step in ascertaining whether or not he 
 was drunk at the time of the transaction. B. v. Nay lor, 11 Cox, 13 
 (C. a R.) 
 
 On the trial of a plaint in the county court, the judge having 
 decided that a debt was due from the defendant, while considering 
 how it was to be paid, asked defendant what was his christian name. 
 Defendant wilfully and falsely swore that his name was " Edward," 
 and not " Bernard," he being called in the summons " Bernard Ed- 
 ward Mullany," and the judge thereupon struck out the cause. It 
 was held that the answer was relevant to the inquiry, and that de- 
 fendant was liable to be indicted for perjury. R. v. Mullany, L. & C. 
 693; 34 L. J. (M. C.) 111. 
 
 A man may be perjured in his answer to a bill in equity, though it 
 be in a matter not charged by the bill. 6 Mod. 348; semb. 1 Sid. 
 274, 106. False evidence, whereby, on the trial of a cause, the judge 
 is induced to admit other material evidence — even though the latter 
 evidence be afterwards withdrawn by the counsel, or though it was 
 not legally receivable — is indictable as perjury. R. v. PhilpaUs, 
 2 Dm. 302 ; 3 C. S K. 135 ; 21 L. J. {M. C.) 18. See R. v. Pe^s,; 
 Peake, 138 : R. v. Beneseck, Peake, Add. Ca. 93 : R.\ Dumton, By. 
 & M. 109 : R. V. Meek, 9 C. <& P. 513 : R. v. Yates, C. <& Mar. 132: 
 Ryalls V. R., 11 Q. B. 781; 17 L. J. (M. C.) 92. It is still a moot 
 point, whether, on an indictment for perjury, the materiality of the 
 matter in which the false swearing is proved is a question of fact for 
 the jury, or a question of law for the judge ; but, according to the 
 better opinion, it ought to be regarded in the latter light. 1 Tayl. 
 Ev. 53 (4:th ed.); 3 Russ. C. & M., by Greaoes, 22 (4<A ed.): R. v. 
 Courtney, 7 Cox, 111 ; 5 Ir. L. R. , N. S. 434 : R. v. Dmston, Ry. & 
 M. 109. But see R. v. Lavey, 3 C. <fe X. 26: R. v. Goddard, 2F. & F. 
 361, contra. 
 
 Although it has long been regarded as law that that part of the 
 oath upon which the perjury is assigned must be material to the 
 matter then under the consideration of the court, Erie, C. J., in pro- 
 nouncing judgment in R. V. Mullany, L. <& C. 593; 34 L. J. (M. C.) 
 Ill, said: — "Whenever the question arises whether a person may 
 not be guilty of perjury, who, with intent to mislead the court, wil- 
 fully swears falsely on a matter which, in the opinion of the judges, 
 is of doubtful admissibility, or immaterial to the inquiry, it will be 
 one well worthy the careful consideration of all the judges." 
 
 4. The matter sworn must be either false in fact, or, if true, the 
 defendant must not have known it to be so. 1 Hawk. c. 69, s. 6 ; 
 3 Inst. 166; Palmer, 294. As, for instance, if a man swear that J. N. 
 revoked his will in his presence — if he really had revoked it, but it 
 were unknown to the witness that he had done so, it is perjury. 
 Hetley, 97. And a man may be indicted for perjury, in swearing that 
 he believes a fact to be true which he must know to be false. Per 
 Lord Mansfield, in R. v. Pedley, 1 Leach, 327: R. v. Schlesinger, 10 
 Q. B. 670; 17 L. J. {M. C.) 29. See 1 Hawk. c. 69, s. 7; 3 Inst. 166; 
 1 Sid. 419, cont. 
 
 5. The false oath must be taken deliberately and intentionally, for 
 if done from inadvertence or mistake, it cannot amount to voluntary 
 
Perjury. 819 
 
 and corrupt peijury. 1 Hawk. u. 69, s. 2. Therefore where peijury 
 is assigned on an answer in equity, or an afEdavit, etc., the part on 
 which the perjury is assigned may be explained by another part, or 
 even by a subsequent answer, etc. 1 Sid. 419; Com. Dig., Just, of 
 Peace (B), 102. 
 
 Now all these things must appear upon the face of the indictment, 
 and must be proved as laid. In the introductory part of the indict- 
 ment, circumstances are stated which show that the oath was taken 
 in a judicial proceeding, before a competent jurisdiction, and was 
 material to the matter then before the court ; the oath is then set 
 out; and the peijury is then assigned upon it, that is, some one or 
 more of the affirmative assertions in it are negatived, or the negative 
 assertions contradicted by the opposite affirmative. 
 
 If it appear sufficiently from the oath itself, that it was material to 
 the matter then before the court, it is unnecessary to aver that fact : 
 (see 2 Starh. N. P. C. 423, n.:) but if it do not appear, then the 
 materiality of that part of the oath upon which perjuiy is assigned 
 must be averred ; R. v. M^Keron, 5 T. R. 316, cit.: R. v. Nichol, 1 
 B. & Ad. 21 ; as, for instance, if the perjury were committed upon 
 the trial of a cause, it should be averred that it then and there be- 
 came a material question whether J. N. was at B. on such a day, and 
 then it may be stated that J. S. swore at the trial that J. N. was not 
 at B. on that day; and, lastly, proceed to assign the perjury. This 
 mode of pleading will at once show the materiality of the evidence ; 
 and it is deemed sufficient, without setting out so much of the pro- 
 eeedings of the former trial as might otherwise be necessary to show 
 that it was material. R. v. DowUn, 5 T. R. 318. 
 
 An averment that " it became and was material to ascertain the 
 truth of the matter hereinafter alleged to have been sworn to by the 
 said J. S. on his oath," is not a good averment of materiality. R. v. 
 Goodfellow, C. & Mar. 569. Where the indictment stated, that 
 A. B. stood charged before a justice with having committed a tres- 
 pass by entering in the day time on certain land in pursuit of game, 
 on the 12th of August, 1843, that the justice proceeded to the 
 hearing of the charge, and that upon the hearing of the charge the 
 defendant swore falsely that he did not see A. B. during the whole 
 of the said 12th day of August ; and that, at the time he the defend- 
 ant swore as aforesaid, it was material and necessary for the justice to 
 inquu-e of and be informed by the defendant, whether he did see 
 the said A. B. at all during the said 12th day of August: this 
 averment was held insufficient, because, consistently with it, it 
 might have been material for the justice to have put this question, 
 and received the answer to it in some other matter, and not in the 
 matter then in issue before him. R. v. Bartholomew, 1 C.&K. 366. 
 The oath is next set out, together with such innuendoes as may be 
 necessary to render the matter of it intelligible, and to connect it 
 clearly with the assignments of perjury contained in the subsequent 
 part of the indictment. As to the use and necessity of an innuendo 
 generally, see ante, p. 769; and see 1 T. R. 70; R. v. Virrier, i P. d 
 D. 161. 
 
 And, lastly, as to the assignments of perjury. — They must be by 
 special averment, negativing the oath, or some part or parts of it ; 
 merely saying that the defendant falsely swore so and so, would be 
 bad, and even perhaps error. See R. v. Perrott, 1 M. & Sel. 379 
 {ante, p. 478). Where a man swore to a fact before a committee of 
 the House of Commons, and afterwards swore directly the contraiy 
 
 N N 2 
 
820 Perjury. 
 
 before a committee of the House of Lords ; an information setting 
 out tlie substance of his evidence upon both occasions, and conclud- 
 ing " and so, etc., the said did commit wilful and corrupt per- 
 jury"— was holden bad: because it did not appear from it which 
 oath was false, which true. R. v. Harris, 9iD.&R. 578; hB.&AU. 
 926: see R. v. Wheatland, S C. <& P. 238; ante, p. 288. 
 
 As to the certainty with which the offence must be set out in the 
 indictment. — Formerly such a degree of nicety was required that it 
 was difficult to obtain a conviction. But by stat. 23 G. 2, c. 11, g. 1, 
 (which has since been repealed by 30 S 31 Vict. c. 59,) it was de- 
 clared to be sufficient to set forth the substance of the offence 
 charged upon the defendant, and by what court, or before whom the 
 oath was taken (averring such court or person to have a competent 
 authority to administer the same), together with the proper averment 
 or averments to falsify the matter whereon the perjury is assigned, 
 without setting forth the bill, answer, information, indictment, decla- 
 ration, or any part of any record or proceeding, either in law or in 
 equity, other than as aforesaid, and without setting out the commis- 
 sion or authority of the court or person before whom the perjury 
 was committed. And now by 14 (£ 15 Vict. c. 100, s. 20 (ante, p. 810), 
 " in every indictment for perjury, or for unlawfully, wiuiiUy, falsely, 
 fraudulently, deceitfully, maliciously or corruptly taking, making, 
 signing or subscribing any oath, affirmation, declaration, affidavit, 
 deposition, bill, answer, notice, certificate or other writing, 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, affirmation, de- 
 claration, affidavit, deposition, bill, answer, notice, certificate, or other 
 writing was taken, made, signed, or subscribed, without setting forth 
 the bill, answer, information, indictment, declaration, or any part of 
 any proceeding either in law or in equity, and without setting forth 
 the commission or authority of the court or person before whom such 
 offence was committed." It will be observed that this section omits 
 the clause in the repealed stat. 23 O. 2, c. 11, «. 1, which rendered 
 it necessary to aver that the court or person before whom the oath 
 was taken had a competent authority to administer the same, and 
 also the words rendering it necessary to insert a proper averment or 
 averments to falsify the matter whereon the perjury is assigned. 
 And by the 21st section of 14 S 15 Vict. c. 100 (ante, p. 810), the 
 like provisions are extended to the offence of subornation of perjury. 
 If however the prosecutor undertake to set out more of the proceed- 
 ings than he need under these statutes, he must do it correctly, and a 
 variance will be fatal, unless amended. R. v. Dowlin, 5 T. R. 817. 
 (See. ante, p. 206.) Wbere perjury is assigned upon several parts of 
 an affidavit, those parts may be set out in the indictment as if con- 
 tinuous, although they are in fact separated by the introduction of 
 other matter. R. v. Callanan, 9 Dowl. & Ry. 97; (iB.&C. 102. See 
 R. V. Solomon, Ry. & M. 262: R. v. Virrier, i^P.&T). 161; 9 L. J. 
 (M. C.) 120: R. V. Bennett, 2 Den. 240; Z C. & K. 124; 20 i. J. 
 (M. C.) 217. 
 
 Eoidence. 
 
 1. In this particular indictment there happens to be nothing in the 
 introductory part of it that requires proof; but in other cases it may 
 be laid down as a general rule, that every statement in the introduc- 
 tory part of the indictment, which cannot be rejected as surplusage, 
 must be proved in substance as laid. It should also be proved dis-. 
 
Perjury. 821 
 
 tinctly, where the perjury is alleged to have taken place on a 
 judicial inquiry, what the charge was, on the hearing of which the 
 false evidence was given, as otherwise it would be impossible to 
 ascertain whether it was material to the issue. R. v. Carr, 10 Cox, 
 b6i(aC.R.). 
 
 2. The matter sworn must be proved. — If in writing, and in ex- 
 istence, it must be produced. To support the present indictment, 
 get the filacer or other officer in whose custody the affidavit is, to 
 produce it at the trial; and prove, either directly or circumstan- 
 tially, that it was sworn to by the defendant; as, for instance, that the 
 name subscribed to it is of the defendant's handwriting, and that it 
 was at his suit J. S. was holden to bail, or the like. Where perjury 
 was assigned on an affidavit of service of notice of application for 
 leave to issue execution against a shareholder in a joint stock com- 
 pany, the production of the affidavit alone without the notice annexed 
 (to which the affidavit referred as being annexed) was held insuf- 
 ficient. R. v. Hudson, 1 F. & F. 56. Upon proof that the affidavit 
 has been lost or destroyed, secondary evidence may be given of its 
 contents, and of the defendant's signature to it. R. v. Milnes, 2 F. 
 & F. 10. Upon an indictment for perjury in falsely swearing that 
 there was no draft of a statutory declaration which had been pre- 
 pared by the defendant, the materiality of the existence of such 
 draft turned upon its contents, and the fact of certain alterations 
 having been made in it. Parol evidence of the contents of the draft 
 and of the alterations made in it was held inadmissible, no notice to 
 produce such draft having been given to the defendant. R. v. El- 
 worthy, L. R., 1 a C. R. 103; 37 L. J. (M. C.) 3. Where perjury 
 is assigned upon an answer to a bill in equity, it is sufficient, after 
 producing the bill or a copy of it (see R. v. Laycoch, ^ G. & P. 326), 
 to produce the answer, and prove either that the defendant was 
 sworn to it, or that the signature to it is of the defendant's hand- 
 writing, and that the name subscribed to the jurat is the name and 
 handwriting of a master, or other person having authority for that 
 purpose. R. V. Morris, 2 Burr. 1189: R. v. Benson, 2 Carnp. 608. 
 And the same as to depositions in equity (see ante, p. 244), and other 
 similar eases, so at least as to throw upon the defendant the onus of 
 proving that he was personated. 2 Burr. 1189. On an indictment 
 for perjury, in the usual form, setting forth, with proper innuendoes, 
 a copy of a deposition before a magistrate, written in the English 
 language, and signed by the defendant, he may be convicted on 
 proof of a verbal deposition in the Welsh language, of which the 
 written deposition, signed by him, is the substance. R. v. Thomas, 
 2 C. <& K. 806. On the trial of an indictment for perjury alleged to 
 have been committed before justices on the hearing of a case punish- 
 able by summary conviction, the conviction is not evidence, for it is 
 irrelevant to the issue. R. v. Goodfellow, C. & Mar. 569. On an 
 indictment for perjury committed in the county court, the proceed- 
 ings there should be proved by the production of the clerk's book, 
 or a certified copy of entries therefrom; 9 (fc 10 Vict. c. 95, a. 111. 
 R. V. Rowland, 1 F. S F. 72. It is necessary to prove in substance 
 the whole of what is set out in the indictment as having been sworn 
 by the defendant ; proving a part only, it seems, is not sufficient. 
 R. V. Jones, PeaJce, 37. Also it must be proved literally or substan- 
 tially as set out ; R. v. Leafe, 2 Camp. 134 ; any variance in sub- 
 stance between the indictment and evidence in this respect will be 
 fatal : see R. v. Taylor, 1 Camp. 404 ; omd see 2 Camp. 509; 1 Starh. 
 
822 Perjury. 
 
 N. P. a 518; 1 T. R. 237, 240, n.; 14 East, 218, w.; 1 C. & P. 559; 
 unless the record be amended at the trial. (See amie, p. 205 et seq.) 
 So, if it be stated that the defendant was sworn on the Gospels, and 
 it be proved that he was sworn in a, different manner, according to 
 the custom of his country, the variance will be fatal, unless amended. 
 R. V. M^Arthur, Peake, 155. But if it be not proved that he was 
 sworn in any other manner, proof that he was sworn generally, and 
 was examined, will support this allegation. R. v. Rowley, Ry. & M. 
 302. An allegation that he " exhibited a certain information upon 
 oath,'' does not sufiSciently show that he was sworn. R. v. Goodfelr 
 low, C. (& Mar. 669. To prove that the person who administered 
 the oath had authority to do so, it is merely necessary to prove that 
 he performed the duties of a certain office, without showing his ap- 
 pointment, R. V. Vereht, 3 Camp. 432, and (if the court wiU not judi- 
 cially notice it) that the person lawfully exercising the dirties of 
 that office has authority to administer an oath in such a case. If the 
 indictment allege the perjury to have been committed on the hearing 
 of a charge for a particular offence, it is not sufficient to prove a 
 charge for a different offence in law, although the defendant's evi- 
 dence given on that occasion would have been material to the charge 
 alleged in the indictment. R. v. Goodfellow, supra. 
 
 3. Some one or more of the assignments of perjury must be proved 
 by two witnesses, or by one witness, and the proof of other material 
 and relevant facts confirming his testimony {see ante, p. 288: R. v. 
 Boulter, 2 Den. 396 ; 21 L. J. (M. C.) bT ; Z C. & K. 236: R. v. Web- 
 ster, \ F.& F. 515: R. v. Braithwaite, Id. 638: R. v. Shaw, L. & C. 
 579; 34 L. J. {M. C.) 169); and the assignment so proved must be 
 upon a part of the matter sworn which was material to the matter 
 before the court at the time the oath was taken. Where the indict- 
 ment was for perjury alleged to have been committed on the trial of 
 A. for perjury, who was convicted, it was held to be no defence that 
 the judgment against A. was afterwards reversed on error. R. v. 
 Meeh, 9 C. & P. 513. Upon an indictment for perjury in giving 
 evidence before the quarter sessions, the prosecutor produced the 
 examination of the defendant before a magistrate, in which he de- 
 posed in the direct negative to everything he had sworn before the 
 court; but Gurney, B., held this not sufficient per se, without other 
 evidence to show that the statement before the court was false, and 
 that before the magistrate true. R. v. Wheatland, S C. <& P. 238. 
 See R. V. Knill, 6 B. S Aid. 929, •«. : R. v. Hook, Dears. & B. 606 ; 
 27 L. J. (M. C.) 222, ante, p. 288. On an indictment for perjury, in 
 deposing in an affidavit that A. B., a defendant in a suit in which 
 the party indicted was plaintiff, owed him 501., the assignment is 
 not proved by evidence that the cause, after the making of the affi- 
 davit was reiferred to an arbitrator, who made an award that A. B. 
 owed the defendant nothing. R. v. Fontaine- Moreau, 11 Q. B. 1028; 
 17 L. J. {Q. B.) 187. Also, it must not only be proved that the 
 matter sworn, or part of it, is false, but it must appear, either di- 
 rectly or from circumstances, that the defendant knew it to be so, 
 and &at he swore to it deliberately. (See ante, p. 818.) 
 
 Indictment for Penjury upon a Trial at the Assizes. 
 
 Surrey, to wit: — The jurors for our lady the Queen upon their oath 
 present, that heretofore, to wit, at the assizes holden for the county 
 
Perjury. 823 
 
 of Surrey, on the thirteenth day of March, in the year of our Lord , 
 
 at Kingston-npon-Thames, in the said county, before Sir W. W., 
 knight, one of the justices of our said lady the Queen assigned to. 
 hold pleas in the court of our lady the Queen, before the Queen her- 
 self, and Sir E. V. W., knight, one of the justices of our said lady the 
 Queen of the Bench at Westminster, justices of our said lady the 
 Queen, assigned to take the assizes in and for the said county of 
 Surrey, a certain issue between one J. L. and one J. W. in a certain 
 plea of trespass and assault, wherein the said J. L. was plaintiff, and 
 the said J. W. defendant, 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 and taken between the parties aforesaid; upon which 
 said trial J. S. appeared as a witness for and on behalf of the said 
 J. W., the defendant in the plea aforesaid, and was then duly sworn 
 and took his corporal oath upon the Holy Gospel of God before the 
 said Sir W. W., knight, and the said Sir E. V. W., knight, so being 
 such justices as aforesaid, that the evidence which he the said J. S. 
 should give to the court there, and to the said jury so sworn as afore- 
 said, touching the matter then in question between the said parties, 
 should be the truth, the whole truth, and nothing but the truth. 
 And the jurors first aforesaid, upon their oath aforesaid, do further 
 present, that at and upon the trial of the said issue so joined between 
 the said parties as aforesaid, it became and was a material question 
 whether the said J. W. had assaulted and beat the said J. L. And 
 the jurors first aforesaid, upon their oath aforesaid, do further pre- 
 sent, that the said J. S., being so sworn as aforesaid, contriving and 
 intending to pervert the due course of law and justice, and unjustly 
 to aggrieve the said J. L., the plaintiff in the said issue, and to 
 deprive him of the benefit of his suit then in question, and to sub- 
 ject him to the payment of sundry heavy costs, charges, and ex- 
 penses, then, to wit, on the day and year aforesaid, on the trial of 
 the said issue, upon his oath aforesaid, falsely, corruptly, knowingly, 
 wUfully and maliciously, before the said jurors so sworn as aforesaid, 
 and before the said Sir W. W., knight, and Sir E. V. W., knight, 
 justices as aforesaid, did depose and swear (amongst other things) 
 in substance and to the effect following, that is to say, that [here set 
 out the evidence, namely, the examination or cross-examination (upon 
 whichever you mean to assign the perjury, see B. v. Dowlin, Peake, 
 170) of J. 8., together with the necessary innuendoes']. Whereas in 
 truth and in fact [etc., etc., proceeding to assign the perjury, as in the 
 precedent, ante, p. 811]. And so the jurors aforesaid, upon their oath 
 aforesaid, do say, etc., etc., as in the precedent, ante, p. 811. See the 
 precedents, i Went. 266, 273 ; Oro. Circ. Com. 351, 353. And see, 
 where the perjury was committed on the trial of am, indictment or in- 
 formation, 4 Went. 239, 275 ; 6 Went. 396 ; Cro. Circ. Com. 359, 362, 
 364 : R. V. Stevens, b B. & C. 246. As to the power of judges, etc., to 
 direct proseoations for perjury committed hefore them, and the proceed- 
 ings thereon, see 14 & 15 Vict. c. 100, s. 19, ante, p. 809. The court 
 by which the oath was administered must he correctly described. Where 
 an indictment stated the oath to have been taken before justices assigned 
 to take the assize, before A. B., one of the said justices, etc., and it ap- 
 peared that the oath was administered when the judge was sitting under 
 the commission of oyer amd terminer and gaol delivery, it was holden a 
 fatal variance. R. v. Lincoln, R. & R. 421. But where it stated that 
 the cause was tried at the assizes before E. W., one of the judges, etc., it 
 was holden to he proved in substance by the Nisi Prius Record, which 
 
824 Perjury. 
 
 stated, in the usual form, that the cause was tried lefore the two jus- 
 tices of assize, one of whom was E. W. JR. v. Alford, 14 East, 218, n. 
 ■ The allegation that the cause was " tried by a jury " is sufficient, al- 
 though no verdict was given, the trial ending in a nonsuit. B. v. Bray, 
 9 Cox. 218. 
 
 Evidence. 
 
 Produce an office copy of the record of the trial at which the per- 
 jury is alleged to have taken place; or at least produce the Nisi 
 Prius record {see ante, p. 242), in order to prove that such a trial 
 took place. Then prove the evidence the defendant gave upon it, by 
 the testimony of some person who was present at the trial. It is 
 sufficient for this purpose if the witness state from recollection the 
 evidence the defendant gave, though he did not take it down in 
 writing, and cannot say with certainty that it was all the evidence 
 given by the defendant, if he can say with certainty that it was all 
 he gave on that point, and that he said nothing to qualify it. R. v. 
 Rowley, 1 Mood. C. C. Ill: R.y.Mwnton, 3 C. & P. 498. And 
 lastly, prove the assignments of perjury by two witnesses, as di- 
 rected ante, p. 822. 
 
 As to the proof of the proceedings, where the perjury is alleged to 
 have taken place on the trial of a former indictment, see 14 & 15 
 Vict. c. 99, s. 13, ante, p. 241; 14 & 15 Vict. c. 100, s. 22, ante, p. 811 ; 
 and R. v. Newman, 2 Dm. 390; 21 L. J. {M. C.) 75. 
 
 Indictment for Perjury upon a Complaint before a Magistrate. 
 
 Middlesex, to wit: — The jurors for our lady the Queen upon their 
 oath present, that J. S., wickedly and maliciously contriving and 
 intending unjustly to aggrieve one J. N., and him the said J. N. to 
 subject to the punishments, pains and penalties by the laws of this 
 realm provided for persons guilty of felony and larceny, on the first 
 
 day of June, in the year of our Lord , came in his proper person 
 
 before A. C, esquire, then and yet being one of the justices of our 
 said lady the Queen, assigned to keep the peace of our said lady the 
 Queen, in and for the county aforesaid, and also to hear and determine 
 divers felonies, trespasses, and other misdeeds committed in the said 
 county, and then, before the said A. C, esquire, in due form of law 
 was sworn, and took his corporal oath upon the Holy Gospel of God, 
 that the evidence which he the said J. S. should give touching the 
 matter in question should be the truth, the whole truth, and nothing 
 but the truth; and that the said J. S. being so sworn as aforesaid, 
 then and there upon his oath aforesaid, before the said A. C., 
 esquire, so being such justice as aforesaid, upon a certain informa- 
 tion, intituled, Middlesex, to wit: — The information of Mr. J. S. 
 [etc., setting out the title of the information'], falsely, corruptly, know- 
 ingly, wilfully, and maliciously did say, depose, swear, and give in- 
 formation in writing (amongst other things), in substance and to the 
 effect following, that is to say — This informant (meaning the said 
 J. S.) upon his oath saith [so proceeding to set out the defendant's in- 
 formation upon oath before A. C, vnth the necessary innuendoes; and 
 then proceed to assign the perjury]: Whereas in truth and in fact, etc., 
 as ante, p. 811; then proceed: And the jurors aforesaid, upon their 
 oath aforesaid, do fm-ther present, that upon the hearing of the said 
 
Perjury. 825 
 
 information before the said A. C. as aforesaid, it became and was a 
 material question whether, etc. : And so the jurors aforesaid, upon 
 their oath aforesaid, do say, etc., as ante, p. 812. See the precedents, 
 4 Went. 232, 244; Ch-o. Circ. Com. 332. And see, as to the indictment 
 and evidence, ante, pp. 814 et seq., and E. v. Gardiner, 2 Mood. C. C. 
 95; BC.dbP. 737. 
 
 (See the following precedents : — of an indictment for perjury upon 
 the hearing of an appeal at the Quarter Sessions, Cro. Circ. Com. 334: 
 in affidavits upon several occasions. Id. 336, 365; 4 Went. 243, 246, 
 253, 258, 260, 263, 264, 277, 278, 281, 287; in affidavit by a petition- 
 ing creditor, C. C. C. 345; in justifying bail, 6 Went. 423, 424; upon 
 executing a unit of inquiry, C. C. C. 361; in an answer to a hill in 
 equity, C. C. C. 342, 357; in depositions in equity, 4 Went. 292; in 
 depositions in the ecclesiastical court, 4 Wemt. 235, 297 ; before arbi- 
 trators, 4 Went. 256 ; before an election committee of the House of 
 Commons, 4 Went. 300; before the judge of a county court, 2 Den. 
 504; 3 C. S K. 26; before a grand jury, R. v. Hughes, \ C. & K. 
 520, n. (J); before a deputy sheriff, R. v. Dunn, 1 C. & K. 732, n. (6); 
 before justices on the hearing of a charge of an offence punishable 
 on summary conviction, R. v. Shaw, L. & C. 579; 34 L. J. (M. C.) 
 169.) A collection of precedents of indictments for perjury mill also be 
 fownd in 2 Stark. Grim. Plead. 533 — 555 (2wi ed^. 
 
 Indictment for making a False Declaration of the Loss of a 
 Pawnbroker's Ticket. 
 
 Northumberland, to wit : — The jurors for our lady the Queen upon 
 their oath present that J. S. did, on the sixth day of April, in the 
 
 year of our Lord , at the parish of Tyrieihouth, in the borough 
 
 of Tynemouth, in the county of Northumberland, wilfully and cor- 
 ruptly make a false declaration before J. B. B., esq., one of her 
 Majesty's justices of the peace for the said borough of Tynemouth, 
 that he the said J. S. had lost a certain note or memorandum, being 
 a pawnbroker's ticket ; whereas in truth and in fact he the said J. S. 
 had not lost the said ticket", as he the said J. S. well knew at 
 the time he made the said false declaration ; against the form of the 
 statute in such case made and provided. 
 
 The statutes relating to the offence charged in this indictment are 
 39 d; 40 G. 3, c. 99, s. 16, which authorizes, in certain cases, the making 
 of an affidavit before a justice of the loss, etc. of a pawnbroker's ticket; 
 and b d 6 W. i, c. 62, s. 12, which substitutes a declaration for the 
 affidavit mentioned in the former statute. As to the form of indictment 
 given above, see R. v. Parker, L. R., 1 C. C. R. 225; 39 L. J. {M. C.) 
 60, where the indictment was the same as this, with the exception that 
 where the asterisk is inserted the following words occurred: — " but had 
 sold, lent or deposited it as security to one J. C." These words were 
 objected to on the ground that they were part of the description of the 
 offence, and that being in the alternative, they rendered the description 
 of the offence uncertain, and therefore vitiated the indictment. The 
 court of criminal appeal, however, held them to be mere surplusage and 
 immaterial. No other objection was taken to the indictment, which, de- 
 scribes the pavmbroker's ticket in the most general terms, viithout giving 
 any particulars whatever respecting it. This, howeoer, appears to be 
 warranted by s. 7 of U d; 15 Vict. c. 100, ante, p. 56. As to the evi- 
 
 N N 5 
 
826 Perjury. 
 
 dence necessary to support the indictment, see R. v. Morgan, 1 Cox, 109: 
 B. V. Browning, 3 Cox, 437; 3 Buss. C. <& M., by Greaves, 114, 115 
 (4«A ed.). 
 
 Indictment for Suiomation of Perjury. 
 Central Criminal Court, to wit : — The jurors for our lady the Queen 
 upon their oath present, that heretofore, to wit, in Trinity Term, in 
 the twenty-second year of the reign of our sovereign lady Victoria, 
 a certain issue was joined in the court of our lady the Queen, before 
 the Queen herself, at Westminster, in the county of Middlesex, be- 
 tween one J. L. and one J. W., in a certain plea of trespass and 
 assault, in which the said J. L. was plaintiff, and the said J. W. de- 
 fendant. And the jurors aforesaid, upon their oath aforesaid, do 
 further present, that afterwards and before the trial of the said issue 
 as hereinafter mentioned, and whilst the same was depending, to 
 wit, on the first day of June, in the year aforesaid, J. S., wickedly 
 contriving and intending to pervert the due course of law and justice, 
 and wickedly and maliciously contriving and intending unjustly to 
 aggrieve the said J. L. the plaintiff in the said issue, and to deprive 
 him of the benefit of his suit then in question, and to subject him to 
 the payment of sundry heavy costs, charges and expenses, then, to 
 wit, on the day and year aforesaid, unlawfully, corruptly, wickedly 
 and maliciously did solicit, suborn, instigate and endeavour to per- 
 suade one J. N. to be and appear as a witness at the trial of the said 
 issue, for and on behalf of the said J. W. the defendant in the said 
 issue, and upon the said trial falsely to swear and give in evidence, 
 to and before the jurors which should be sworn to try the issue 
 aforesaid, certain matters material and relevant to the said issue, 
 and in the matters therein and thereby put in issue, in substance, 
 and to the effect following, that is to say, that [the said J. W. (mean- 
 ing the defendant in the issue aforesaid) did, on a certain day then 
 past, to wit, on the tenth day of April in the year aforesaid, beat, 
 wound and bruise the said J. L. (meaning the plaintiff in the issue 
 aforesaid), and did knock him, the said J. L., down, and with a large 
 stick did then and there beat, wound and bruise, and greatly dis- 
 figure the said J. L., whilst he was so down]. And the jurors first 
 aforesaid, upon their oath aforesaid, do further present that after- 
 wards, to wit, at the sittings at Nisi Prius, holden after Trinity 
 Term aforesaid, at Westminster aforesaid, before the Eight Honour- 
 able John Lord Campbell, her Majesty's chief justice assigned to 
 hold pleas in the court of our said lady the Queen before the Queen 
 herself, to wit, on the day and year first aforesaid, the issue aforesaid 
 came on to be tried, and was then and there tried by a jury of the 
 country in that behalf duly sworn and taken between the parties 
 aforesaid : upon which said trial the said J. N., in consequence, and 
 by the means, encouragement, and effect of the said wicked and 
 corrupt subornation and procurement of the said J. S., did then 
 appear as a witness for and on behalf of the said J. W., the defend- 
 ant in the plea above mentioned, and was then duly sworn and took 
 his corporal oath upon the Holy Gospel of God, before the said 
 John Lord Campbell, her Majesty's chief justice as aforesaid, that 
 the evidence which he the said J. N. should give to the court there, 
 and to the jury, so sworn as aforesaid, touching the matter then in 
 question between the said parties, should be the truth, the whole 
 truth, and nothing but the truth ; and that at and upon the trial of the 
 
Perjury. . 827 
 
 said issue so joined between the said parties as aforesaid, it became 
 and was a material question, whether the said J. W. assaulted and 
 beat the said J. L. : and the said J. N. being so sworn as aforesaid, 
 then, at the trial of the said issue, upon his oath aforesaid, falsely, 
 corruptly, and wilfully, before the said jurors so sworn and taken be- 
 tween the said parties as aforesaid, and before the said John Lord 
 Campbell, chief justice as aforesaid, did depose and swear (amongst 
 other things) in substance and to the effect following, that is to say : 
 that \here set out J. N.^s evidence, in substance the same as is above 
 stated, where the subornation is charged] : Whereas, in truth and in 
 fact, the said J. W. did not, etc. [so proceeding to assign the perjury, 
 as in the precedent, ante, p. 811] ; and whereas, in truth and in fact, 
 the said J. S., at the time he so solicited, suborned, instigated, and 
 endeavoured to persuade the said J. N. falsely and corruptly to swear 
 as aforesaid, well knew that [cte., pursuing the words in the assign- 
 ment of perjury] : And so the jurors aforesaid, upon their oath afore- 
 said, do say, that the said J. S., on tlie said first day of June, in the 
 fourth year of the reign aforesaid, did unlawfully, corruptly, wickedly, 
 and maliciously suborn and procure the said J. N. to commit wilful 
 and corrupt perjury in and by his oath aforesaid, before the said 
 jurors so sworn and taken between the said parties as aforesaid, and 
 before the said John Lord Campbell, chief justice as aforesaid ; to 
 the great displeasure of Almighty God, to the evil and pernicious 
 example of all others in the like case oflfending, and against the 
 peace of our lady the Queen, her crown and dignity. (See the prece- 
 dents, a a a 379, 380; 4 went. 234, 250.) The 14 S 15 Vict. c. 100, 
 s. 21, ante, p. 810, contains certain provisions for simplifying the form 
 of indictment for subornation of perjury. The 23 G. 2, c. 11, the 2nd 
 sect, of which contained similar, although not identical, provisions, is now 
 repealed by 30 (& 31 Vict. c. 59. Punishable in the same manner as 
 perjury. (See ante, p. 813.) No indictment can be preferred for sub- 
 ornation of perjury umless one or other of the preliminary steps required 
 by 22 (& 23 Vict. c. 17, s. 1, has been taken, (see ante, p. 4.) 
 
 Subornation of perjury is not triable at quarter sessions. 5 <& 6 Vict, 
 c. 38, s. 1 (ante, p. 104). 
 
 Evidence. 
 
 Prove the perjury committed, as directed ante, p. 820; for unless 
 this be proved, the defendant cannot be found guilty of the suborna- 
 tion; 1 Hawh. c. 69, s. 10; and the mere production of the record of 
 J. N.'s conviction for the perjury (if he were convicted) would not, it 
 seems, be sufficient evidence of the perjury having been committed. 
 B. V. Beilly, 1 Leach, 454. 
 
 And prove the previous subornation, as laid in the indictment, 
 namely, that the defendant solicited or procured J. N. to prove so 
 and so upon the trial of the issue, knowing the same to be false, or 
 that J. N., by giving such evidence, would be committing perjury. 
 
 Particular Statutes applicable to Perjury, etc. 
 
 55 G. 3, c. 184, ss. 52, 53; Stamps.— 7 <& 8 G. i, c. 53, ss. 29, 30, 
 31 ; Excise.— 39 & 40 G. 3, c. 89, s. 36; Naval Stores.— 2S & 29 Vict. 
 c. 124, s. 6; 7 G. 4, c. 16, s. 16; Naval and Military Pay, Pensions, 
 «ic.— 6 G. 4, c. 78, s. 29; Quarantine.— VJ & 18 Vict. c. 104, «. 103; 
 Registry of Ships.— & & 6 Vict. c. 42, s. 7; Perjury before Slave-Trade 
 
828 , Peijury. 
 
 Commissioners.— 2 <fe 3 ^. c. 4, S8. 18, 19; Registry Act.—il G. 3, c. 109, 
 s. 43; InclosureAct.—6 & 7 Vict. c. 18, «. 81; 5 cfe 6 TT. 4, c. 76, s. 34 ; 
 Giving False Answers at Elections, Parliamemtary and Mvmicipal; (as 
 to which see R. v. De Beauvoir, 7 C. & P. IT : E. y. Harris, Id. 253: 
 R-y.Dodsworth, 8 G(feP.218: B.Y.Lucy, C.&Mar.bW: R.v.Bowler, 
 Id. 559: S. v. Ellis, Id. 564: i2. v. Spalding, Id. 568).— Jfofcinj 
 ^atee Oaths or Declarations for the purpose of Marriage: 6(1:7 W. 4=, 
 c. 86, s. 38; (see R. v. Btowjb, 1 Den. 291; 17 £. J. (M. C.) 143; 2 
 C. S K.bQA: R. v. Jfasore, 2 C. c6 ^. 622: R. v. Zorti Dunhoyne, 3 
 C (fc £'. 1). — Making False Statements touching any Birth, Death, or 
 Marriage, to a Registrar ; 6 c6 7 TF. 4, c. 86, s. 41. — MaMng False 
 Declarations in Matters relating to the Revenues of Oustoms or Excise, 
 Stamps and Taxes, or Post-office; at the Bank of England, a/nd in 
 other cases; 5 c6 6 W.4,c. 62, ss. 5, 18, 21: (see R. v. Boynes, 1 C. & 
 K. 65 : R. V. Cox, 4 i''. cfc i^. 42 ; 9 Cox, 30\).— Making wilfully 
 untrue Statements respecting Lvmatics; 16 & 17 Vict. c. 97, s. 122. — 
 Peijury in Proceedings out of Englcmd in Crown Suits; 28 & 29 Vict, 
 c. 104, ss. 19, 44. — Perjury in Prize Causes; 27 <& 28 Vict. c. 25, s. 50. 
 — Perjury in Proceedings under " The Compamies' Act, 1862" ; 26 & 
 26 Vict. c. 89, s. 169. — False Evidence before Union Assessment Com- 
 mittee; 25 & 26 Vict. c. 103, s. 40. — False Evidence, etc., before the 
 Special Commissioners for English Fisheries; 28 & 29 Vict. c. 121, 
 «. 54. — Making False Statements in Declarations under s. 10, of the 
 County Voters Registration Act, 1865; 28 Vict. c. 36, s. 11. — False 
 Evidence or False Statements in Proceedings under the " Improvement 
 of Land Act, 1864," 27 & 28 Vict. c. 114, s. b.— False Certificates or 
 Declarations under the Capital Punishment Amendment Act, 1868; 
 31 Vict. c. 24, «. 9. — False Representations in order to procure Regis- 
 tration under the Pharmacy Act, or under the Pharmacy Act, 1868; 
 
 31 & 32 Vict. c. 121, «. 14. — False Evidence before Registrar of 
 County Court in Admiralty Cause; 31 & 32 Vict. c. 71, s. 19. — False 
 Evidence before Committees of either House of Parliament on Private 
 Bills; 21 <& 22 Vict. c. 78. — Fake Evidence on Trial of Election Pe- 
 tition; 31 (& 32 Vict. c. 125, s. 31. — False Statement on Oath to In- 
 spectors appointed by Boojrd of Trade under the Regulation of Railways 
 Act, 1868, to examine into the Affairs of Railway Companies; 31 16 
 
 32 Vict. c. 119, s. 8. — False Evidence on certain Inquiries under the 
 Sea Fisheries Act, 1868; 31 <& 32 Vict. c. 45, s. 32.— False Evidence 
 before Courts of Referees on Private Bills; 30 <& 31 Vict. c. 136, s. 2. 
 — Signing False Certificates or Duplicates under the Vaccination Act 
 0/1867; 30 (& 31 Vict. c. 84, s. 30.— False Claim, etc., in any Bank- 
 ruptcy or Liquidation by Arrangement, or Composition with Creditors 
 in pwrsuance of the Bankruptcy Act, 1869; 32 c6 33 Vict. c. 62, s. 14. — 
 False Statement made on inquiry into the incapacity of a Bishop; 32 
 iSi 33 Vict. c. Ill, s. 6. — False Declaration under the Pensions Com- 
 mutation Act, 1869; 32 & 33 Vict. c. 32, s. 9. 
 
 Perjury and subornation of perjury, or making or suborning any 
 other person to make a false oath, affirmation, or declaration, punish- 
 able as perjury, or as a misdemeanor, are not triable at quarter ses- 
 sions. 6 (fc 6 Vict. c. 38, 8. 1 (ante, p. 104). 
 
Administering Voluntary Oaths, etc. 829 
 
 Sect. 6. 
 administering, etc., voluntary oaths, etc. 
 
 Statute. 
 
 5 S 6 W. i, c. 62, s. 13.] — Recites, that a practice has prevailed of 
 administering and receiving oaths amd affidavits voluntarily taken and 
 made in matters not the subject of any judicial inquiry, nor in amyunse 
 pending or at issue before the justice of the peace or other person by 
 whom such oaths or affidavits have been administered or received; and 
 that doubts have arisen whether or not such practice is illegal; and for 
 the more effectual suppression of such practice and removing such 
 doubts, enacts that from and after the commencement of this act it 
 shall not be lawful for any justice of the peace or other person to 
 administer, or cause or allow to be administered, or to receive, or 
 cause or allow to be received, any oath, affidavit, or solemn affirma- 
 tion touching any matter or thing whereof such justice or other 
 person hath no jurisdiction or cognizance by some statute in force 
 at the time being; provided always, that nothing herein contained 
 shall be construed to extend to any oath, affidavit, or solemn affirma- 
 tion before any justice in any matter or thing touching the preserva- 
 tion of the peace, or the prosecution, trial or punishment of offences, 
 or touching any proceedings before either of the houses of parlia- 
 ment, or any committee thereof respectively, nor to any oath, affi- 
 davit or affirmation which may be required by the laws of any foreign 
 country to give validity to instruments in writing designed to be 
 used in such foreign countries respectively. 
 
 Sect. G—Act not to apply to Oath of Allegiance.'] — Provided, that 
 nothing in this act contained shall extend or apply to the oath of 
 allegiance in any case in which the same now is or may be required 
 to be taken by any person who may be appointed to any office, but 
 that such oath of allegiance shall continue to be required, and shall 
 be administered and taken, as well and in the same manner as if this 
 act had not been passed. 
 
 Sect. 7 — Not to apply to Oaths in Courts of Justice, etc.] — Provided 
 also, that nothing in this act contained shall extend or apply to any 
 oath, solemn affirmation, or affidavit, which now is or hereafter may 
 be made or taken, or be required to be made or taken, in any judicial 
 proceeding in any court of justice, or in any proceeding for or by 
 way of summary conviction before any justice or justices of the 
 peace, but all such oaths, affirmations, and affidavits shall continue 
 to be required, and to be administered, taken, and made, as well and 
 in the same manner as if this act had not been passed. 
 
 Indictment. 
 
 Commencement as ante, p. 313] — he the said J. S., then, to wit, on 
 the day and year aforesaid, being one of the justices of our said lady 
 the Queen, assigned to keep the peace in and for the said county, 
 did unlawfully administer to and receive from a certain person, to 
 wit, one J. N., a certain oath (" oath, affidavit or solemn affirmation"), 
 touching certain matters and things whereof the said J. S., at the 
 time and on the occasion aforesaid, had not any jurisdiction or cog- 
 
830 Bribery. 
 
 nizance by any statute in force at the time being, to wit, at the time 
 of administering and receiving the said oath ; the same oath not 
 being in any matter or thing touching the preservation of the peace, 
 or the prosecution, trial or punishment of any offence, or touching 
 any pi-oceedings before either of the houses of parliament, or any 
 committee thereof respectively, nor being an oath required by the 
 laws of any foreign country to give validity to any instrument in 
 writing, designed to be used in such foreign country ; that is to say, 
 a certain oath touching and concerning [state the subject-matter of 
 the oath, so as to show that it was not one of v;hich the justice had 
 jurisdiction or cognizance, and was not within the exceptions] : against 
 the form [as ante, p. 347]. The indictment must negative the excep- 
 tions in the statute, and must show the subject-matter touching which the 
 oath was administered, so as to enable the court to draw the legal infer- 
 ence that it was one of which the defendant had not cognizance; hut it 
 is not necessary to set out the oath verbatim. R. v. Nott, Dav. <& M.l; 
 a & Mar. 288; 4 Q. B. 768; 12 L. J. {M. C.) 143. 
 
 Misdemeanor : fine or imprisonment, or both. 5 d: 6 W. 4, o. 62, 
 s. 13. This offence is not triable at quarter sessions. 5 <& & Vict. c. 38, 
 s. 1 (ante, p. 104). 
 
 Evidence. 
 
 Prove that the defendant is a justice of the peace for the county 
 mentioned in the indictment; evidence of his actmg as such will, 
 prima facie, be sufficient. Prove that he administered to or received 
 from J. N. an oath of the nature and touching the subject-matter 
 mentioned in the indictment. It is not necessary to show that he 
 acted wilfully in contravention of the statute ; the doing so, even 
 inadvertently, is punishable. iJ. v. Nott, supra. 
 
 Sect. 7. 
 
 B R I B E K Y. 
 
 Indictment for attempting to bribe a Constable. 
 Surrey, to wit : — The jurors for our lady the Queen upon their oath 
 present, that heretofore, to wit, on the first day of June, in the year 
 
 of our Lord , one A. C, esquire, then and yet being one of the 
 
 justices of our said lady the Queen, assigned to keep the peace of 
 our said lady the Queen in and for the county aforesaid, and also to 
 hear and determine divers felonies, trespasses, and other misdeeds 
 committed in the said county, made a certain warrant under his hand 
 and seal, in due form of law, bearing date the day and year aforesaid, 
 directed to all constables and other peace officers of the said county, 
 and especially to J. N., thereby commanding them, upon sight thereof, 
 to take and bring before him the said A. C, so being such justice as 
 -aforesaid, or some other of his Majesty's justices of the peace for the 
 said county, the body of D. P., late of the parish aforesaid, in the 
 county aforesaid, to answer [etc., etc., as in the warrant'] ; and which 
 said warrant afterwards, to wit, on the day and year aforesaid, was 
 delivered to the said J. N., then being one of the constables of the 
 same parish, to be executed in due form of law. And the jurors 
 
Bribery. 831 
 
 aforesaid, upon their oath aforesaid, do further present, that J. S., 
 well knowing the premises, but contriving and unlawfully intending 
 to pervert the due course of law and justice, and to prevent the 
 said D. F. from being arrested and taken under and by virtue of the 
 warrant aforesaid, afterwards, to wit, on the day and year aforesaid, 
 unlawfully, wickedly and corruptly did offer unto the said J. N., so 
 being constable as aforesaid, and having in his custody and posses- 
 sion the said warrant so delivered to him to be executed as afore- 
 said, the sum of ten pounds, if he the said J. N. would refrain from 
 executing the said warrant, and from taking and arresting the said 
 D. F. under and by virtue of the same, for and during fourteen days 
 from that time, tha,t is to say, from the time he the said J. S. so 
 offered the said sum of ten pounds to the said J. N. as aforesaid : 
 and so the jurors aforesaid, upon their oath aforesaid, do say, that 
 the said J. N., on the said first day of June, in the year aforesaid, in 
 manner and form aforesaid, did unlawfiilly attempt and endeavour 
 to bribe the said J. N., so being constable as aforesaid, to neglect 
 and omit to do his duty as such constable, and to refrain from taking 
 and arresting the said E. F. under and by virtue of the warrant 
 aforesaid : in contempt of our lady the Queen and her laws, to the 
 evil and pernicious example of all others in the like case offending, 
 and against the peace of our lady the Queen, her crown and dignity. 
 For an instance of an attempt to bribe a justice of the peace, see R. v. 
 Gv/mey, 10 Cox, 550. 
 
 Punishable with fine and imprisonment, whether the bribe were ac- 
 cepted or not, 3 Inst. 147 ; and see R. v. Vaughan, 4 Burr. 2500. And 
 the same where an officer, judicial or ministerial, takes a bribe. Id. ; 
 and see 20 Ed. 3, c. 1 ; Com. Dig. Officer (1). The text-books, in 
 general, confine the offence of bribery to a bribery of judicial officers; 
 but this definition of the offence seems too narrow and confined. See 
 R. V. Beale, 1 East, 183, cit.: R. v. Vaughan, 4 Burr. 2494.— See 17 
 & 18 Vict. c. 102, continued by 33 & 34: Vict. c. 103, to 8th June, 1871, 
 and end of then next session; 21 & 22 Vict. c. 87 ; 26 Vict. c. 29 ; 30 
 & 31 Vict. c. 102, s. 49 ; 31 c§ 32 Vict. c. 125: Henslow v. Fawcett, 3 
 A. & E.bl: R. V. Bowler, C. & Mar. 559 : R. v. Clarke, I F. & F. 
 654 : B. v. Boyes, i F. & F. 157 : Reed v. Lamb, 6 H.C&N.75; and 
 1 Russ. C. S M., by Greaves, 223—240 (4th ed.), as to bribery and 
 undue influence at parliamentary elections. — See 5 <& 6 W. i, c. 76, 
 ss. 54, 55, 56 ; 22 Vict. c. 35, ss. 11, 12: Harding v. Stokes, 2 M. & 
 W. 233 ; and 1 Russ. C. & M., by Greaves, 223—240 {4th ed.), as to 
 bribery at municipal elections. — See 16 & 17 Vict. c. 107, s. 3 ; R. v. 
 Everett, 8 B. & C.114; 2 Man. & Ry. 35, as to bribing officers of the 
 customs. 
 
 Bribery is not triable at quarter sessions. 5 <£ 6 Vict. c. 38, s. 1 
 (ante, p. 104). 
 
 Ihidence. 
 Prove the warrant and the delivery of it to J. N. ; and prove that 
 J. S. knew that J. N. had the warrant, and offered him ten pounds 
 to refrain from executing it, as stated in the indictment. 
 
832 Extortion. 
 
 Sect. 8. 
 
 extortion. 
 
 Indictment against a Constable for Extortion. 
 
 Surrey, to wit : The jurors for our lady the Queen upon their oath 
 present, that J. S., on the first day of June, in the year of our Lord 
 
 , then being one of the constables of the parish of B., in the 
 
 county of S., did take and arrest one J. N., by colour of a certain 
 warrant, commonly called a bench warrant, which he the said J. S. 
 then alleged to be in his possession ; and that the said J. S. after- 
 wards, and whilst the said J. N. so remained in his custody as afore- 
 said, to wit, on the day and year aforesaid, unlawfully, corruptly, 
 deceitfully, extorsively, and by colour of his said office, did extort, 
 receive, and take of and from the said J. N. the sum of five shUlings, 
 as and for a fee due to him the said J. S. as such constable as afore- 
 said, for the obtaining and discharging of the said warrant, as he the 
 said J. S. then alleged; whereas, in truth aad in fact, no fee what- 
 ever was then due from the said J. N. to the said J. S. as such 
 constable as aforesaid in that behalf; in contempt of our said lady 
 the Queen and her laws, to the evil and pernicious example of all 
 others in the like case ofiending, and against the peace of our lady 
 the Queen, her crown and dignity. The venue may, it is said, ie laid 
 in any county by 31 Eliz. c. 5, «. 4 ; 1 Hawh. P. C. c. 68, s. 6, n. (3) ; 
 Stark. Orim. Plead. 585, n. 0c) ; but this position has been questioned, 
 2 Hawh. P. C. c. 26, s. 50 ; 2 Chit. Crim. Law, 294. See 1 Buss. C. & 
 M., by Greaves, 211 (4iA ed."). See the precedents, Cro. Circ. Com. 193, 
 194, 195 ; 4 Went. 146 : and see 3 Inst. 148, 149 ; 2 L. Raym. 1265 ; 
 iSalh. 680 ; 4 Camp. 379. 
 
 Fine or imprisonment, or both. And it is equally extortion, where 
 a greater fee is exacted than what is legally due, as where money is 
 exacted as a fee where none wlmtever is payable. See 2 Salh. 680 ; 1 
 Hawh. c. 68, s. 1. 
 
 Evidence. 
 
 Prove the arrest, and prove that the defendant exacted money as 
 a fee due to him as stated in the indictment. The sum stated is not 
 material ; proof of a less sum will maintain the indictment. R. v. 
 Burdett, 1 L. Raym. 149: and see R. v. Gillham, 6 T. R. 265 : R. v. 
 Higgins, i C. <& P. 247. 
 
 Sect. 9. 
 
 miscondtjct of officers of justice. 
 
 Indictment against a Constable for not conveying an Offender to 
 Prison. 
 
 Proceed as in the precedent, ante, p. 795, as far as the*, and thm 
 proceed thus"] : — And the jurors aforesaid, upon their oath aforesaid, 
 do further present, that the said J. S., so being one of the constables 
 of the said parish as aforesaid, and being so commanded by the said 
 A. C, the said justice as aforesaid, unlawfully and contemptuously 
 
Misconduct of Officers of Justice. 833 
 
 did then neglect and refuse to convey the said J. N. to the said gaol 
 of Newgate, as he the said J. S., by virtue of his office aforesaid, by 
 law should and ought to have done; to the great hinderance of justice, 
 to the evil example of all others in the like case offending, and 
 against the peace of our lady the Queen, her crown and dignity. See 
 the precedents, Cro. Circ. Com. 143, 151, 170. 
 
 Every malfeasance or culpable nonfeasance of an officer of justice, 
 with relation to his office, is a misdemeanor, and punishable with fine 
 or imprisonment, or both. See 1 Salk. 380 ; Cro. El. 654. 
 
 Evidence. 
 Prove the charge before the magistrate, the warrant, and the 
 delivery of it to the defendant, as directed ante, p. 796. And prove 
 that the defendant neglected or refused to convey the offender to 
 prison, in pursuance of the warrant. It is unnecessary to prove the 
 defendant's appointment as constable ; proof that he was accustomed 
 to act as such will be sufficient (ante, p. 238). 
 
 Indictment against a Magistrate, for committing in a Case where he 
 
 had no Jurisdiction. 
 SuiTey, to wit: — The jurors for our lady the Queen upon their oath 
 
 present, that on the first day of June, in the year of our Lord , 
 
 one T. C., then being one of the constables of the parish of B., in the 
 connty of S., brought one J. N. before J. S., esquire, then and yet 
 being one of the justices of our said lady the Queen assigned to keep 
 the peace of our said lady the Queen in and for the county aforesaid, 
 and also to hear and determine divers felonies, trespasses, and other 
 misdeeds committed in the said county; and the said J. N. was then 
 charged before the said J. S. with having committed a certain sup- 
 posed misdemeanor, in having vilified the character and hurt the 
 trade of one A. C., of the parish aforesaid, miller ; and the said J. N. 
 was then and there examined before the said J. S., as such justice as 
 aforesaid, touching the said supposed offence so to him charged as 
 aforesaid. And the jurors aforesaid, upon their oath aforesaid, do 
 further present, that the said J. S., so being such justice as aforesaid, 
 wickedly and maliciously contriving and intending to oppress, injure, 
 and aggrieve the said J. N. in this behalf, and to put him to great 
 charge and expense, and to cause him to undergo and suffer great 
 pain, torture and anguish of body and mind, afterwards, to wit, on 
 the day and year aforesaid, did order and direct that the said J. N. 
 should find sureties for his personal appearance at the then next 
 general quarter sessions of the peace of our said lady the Queen, to 
 be holden in and for the said county of M., to answer the said charge; 
 and, because the said J. N. did not and could not conveniently find 
 such sureties as aforesaid, he the said J. S. being such justice as 
 aforesaid, wickedly and maliciously contriving and intending as 
 aforesaid, wrongfully, unjustly, and maliciously, and contrary to the 
 laws of this realm, did then by virtue and under colour of a certain 
 warrant under his hand and seal, as such justice as aforesaid, commit 
 the said J. N. a prisoner to a certain prison called the House of 
 Correction, situate at the parish aforesaid, in the county aforesaid, to 
 be there safely kept until he the said J. N. should find such sureties 
 as aforesaid, and until he should be fully examined concerning the 
 
834 Disobeying Orders of Magistrates. 
 
 premises; and then ordered, directed, and commanded the then 
 keeper of the said prison to keep the said J. N. under close confine- 
 ment in the said prison, and to deny him the use of pen, ink and 
 paper, and to allow no letter to be delivered to or from the said 
 J. N., and also to allow no person to see or speak to him the said 
 J. N. And the jurors aforesaid, upon their oath aforesaid, do further 
 present that the said J. S., by virtue and under colour of the warrant 
 aforesaid, afterwards, to wit, on the day and year aforesaid, and from 
 thence, for a long space of time, to wit, for the space of ten days then 
 next following, wrongfully, unjustly and maliciously, and contrary to 
 the laws of this realm, did cause and procure the said J. N. to be 
 closely confined and imprisoned in the said prison, and to be denied 
 the use of pen, ink and paper, and to be restrained from all communi- 
 cations with his relations and friends; whereby the said J. N. during 
 all that time underwent and suffered great pain, torture and anguish 
 of body and mind, and was deprived of his liberty, and prevented 
 from finding such sureties as aforesaid, and was put to great charge 
 and expense in and about obtaining his discharge and release from 
 the said commitment and imprisonment : to the great scandal of the 
 administration of justice in this kingdom, in contempt of our lady the 
 Queen and her laws, to the evil example of all others in the like case 
 offending, and against the peace of our lady the Queen, her crown and 
 dignity. 
 
 Where magistrates are guilty of oppression, or other wilful mal- 
 feasance in the execution of their duties, they are generally proceeded 
 against by information. But such an information can readily he 
 framed from this precedent, by observing the forms given, ante, pp. 108, 
 114. See the precedents, Oro. Circ. Com. 242, 244; 4 Went. 364, 418, 
 424 ; 6 Went. 455. See also a precedent of an indictment against a 
 coroner for refusing to take an inquisition, Oro. Circ. Com. 170. 
 
 Fine or imprisonment, or both. 
 
 Evidence. 
 
 Prove the charge before J. S., the warrant, etc., and the imprison- 
 ment ; together with any circumstances of aggravation laid in the 
 indictment. Also, if the case will admit of it, evidence may be given 
 of any circumstances which indicate that the commitment proceeded 
 from malice or other undue motive upon the part of the magistrate. 
 See R. V. Sainsbury, 4 T. R. 451. 
 
 Sect. 10. 
 not obeying the orders of a magistrate. 
 
 Indictment against a High Constable for disobeying an Order of 
 Sessions. 
 
 Middlesex, to wit: — The jurors for our lady the Queen upon their 
 oath present, that at the general quarter sessions of the peace of our 
 lady the Queen, holden for the county of Middlesex, at the New Ses- 
 sions House on Clerkenwell Green, in and for the county aforesaid, by 
 
Compounding Felony. 835 
 
 adjournment, to wit, on Saturday, the fifth day of July, in the twelfth 
 year of the reign of our sovereign lady Victoria, before F. C, J. W , 
 W. R. and E. M., esquires, and others their fellows, justices of our 
 said lady the Q^een assigned to keep the peace of our said lady the 
 Queen in and for the county aforesaid, and also to hear and determine 
 divers felonies, trespasses and other misdeeds committed in the said 
 county, it was ordered by the same justices and court thei-e, that [etc., 
 proceeding to state the order of sessions in the past tense"] ; of which 
 said order the said J. S., one of the high constables in the order afore- 
 said named, afterwards, to wit, on the day and year aforesaid, had 
 notice. Nevertheless, the said J. S., then being one of the higli con- 
 stables in the order aforesaid mentioned, unlawfully and contemptu- 
 ously, upon being served with the said order, did neglect and refuse 
 to [etc., here insert what the order required of Aim], as by the said order 
 he the said J. S. was required to do; nor hath he the said J. S. at any 
 time since complied with the said order, although often requested so 
 to do; in contempt of our lady the Queen and her laws, to the evil 
 esiample of other persons in the like case offending, and against the 
 peace of our lady the Queen, her crown and dignity. 
 
 See a precedent of an indictment against an overseer of the poor for 
 not paying a weekly sum to a pauper in pursuance of an order of 
 justices; Oro. Circ. Com. 327 r see R. v. Meredith, R. & R. 46 : R. 
 v. Booth, Id. 47 : R. v. Warrem, 2 Russ. 139 ; against the father of 
 a hastard child, for not obeying an order of maintenance; 4 Went. 
 227; and see R. v. White, Cald. 183 : R. v. Robinson, 2 Burr. 799 : 
 B. V. Balme, Cowp. 650 : R. v. Feamley, 1 T. R. 316 : R. v. Davis, 
 Say. 163: R. \. Gould, 1 Salh. 301 : R. v. Brisby, 1 Den. 416 ; 2 C. 
 & K. 962: R. v. Ferrall,_ 2 Den. 51; 20 L. J. {M. C.) 39; for dis- 
 obedience to an order of justices for payment of a church-rate: R. v. 
 Bidwell, 1 Den. 222; 2 C. d K. 564; 17 L. J. {M. C.) 99: R. v. Wil- 
 liams, 1 Den. 529; 2C.SK. 100. It is sufficient to set out the substance 
 of the order correctly ; it need not he set out verbatim according to the 
 tenor. R. v. Bidwell, supra. 
 
 Evidence. 
 
 Produce the order. Prove a personal service of a copy of it upon 
 the defendant, and upon all the defendants if there be more than one 
 and the order be joint and not several. See R. v. Kingston, 8 East, 
 41. And prove that the defendant did not obey the order. See R. v. 
 " ' 1 r. iJ. 316. 
 
 Sect. 11. 
 compounding felony. 
 
 Statute. 
 24 & 25 Vict. c. 96, s. 101.] — Whosoever shall corruptly take any 
 money or reward, directly or indirectly, under pretence or upon ac- 
 count of helping any person to any chattel, money, valuable security. 
 
836 Compounding Felony. 
 
 or other property whatsoever, which shall by any felony or misde- 
 meanor have been stolen, taken, obtained, extorted, embezzled, con- 
 verted or disposed of, as in this act before mentioned, shall (imless 
 he shall have used all due diligence to cause the offender to be 
 brought to trial for the same) be guilty of felony, and being con- 
 victed thereof shall be liable, at the discretion of the court, to he 
 kept in penal servitude for any term not exceeding seven years and 
 not less than three years [now five years, 27 & 28 Vict. c. 47, s. 2, 
 ante, p. 173], or to be imprisoned for any term not exceeding two 
 years, with or without hard labour, and with or without solitary con- 
 finement, and, if a male under the age of eighteen years, with or 
 without whipping. 
 
 Sect. 102 — Advertising Reward/or the Return of Stolen Property."] — 
 Whosoever shall publicly advertise a reward for the return of any 
 property whatsoever, which shall have been stolen or lost, and shall 
 in such advertisement use any words purporting that no questions 
 will be asked, or shall make use of any words in any public adver- 
 tisement purporting that a reward will be given or paid for any 
 property which shall have been stolen or lost, without seizing or 
 making any inquiry after the person producing such property, or 
 shall promise or offer in any such public advertisement to return to 
 any pawnbroker or other person who may have bought or advanced 
 money by way of loan upon any property stolen or lost the money so 
 paid or advanced, or any other sum of money or reward for the return 
 of such property, or shall print or publish any such advertisement, 
 shall forfeit the sum of fifty pounds for every such offence to any 
 person who will sue for 'the same by action of debt, to be recovered 
 with full costs of suit. 
 
 33 d; 34 Vict. c. 65, s. 3 — Limitation of Actions for Advertisements 
 of Reward for Return of Stolen Property.] — Every action against the 
 printer or publisher of a newspaper to recover a forfeiture under 
 s. 102 of The Larceny Act, 1861 f 24 & 25 Vict. c. 96), shall be brought 
 within six months after the forfeiture is incurred, and no such action 
 against the printer or publisher of a newspaper shall be brought unless 
 the assent in writing of her Majesty's attorney-general or solicitor- 
 general for England, if the action is brought in England, or for Ire- 
 land, if the action is brought in Ireland, has been first obtained to the 
 bringing of such action. 
 
 Sect. 2.] — In this act the term "newspaper" means a newspaper 
 as defined for the purposes of the acts for the time being in force 
 relating to the carriage of newspapers by post. 
 
 Indictment at Common Law for compounding a Felony. 
 
 Central Criminal Court, to wit : — The jurors for our lady the 
 Queen upon their oath present, that heretofore, to wit, on the first 
 
 day of June, in the year of our Lord , one A., the wife of J. N., 
 
 feloniously stole, took, and carried away one silver spoon, of the goods 
 and chattels of one J. S., against the peace of our lady the Queen, her 
 crown and dignity. And that the said J. S., well knowing the said 
 felony to have been by the said A. so as aforesaid done and com- 
 
Compovmding Felony. 837 
 
 mitted, but contriving and intending unlawfully and unjustly to per- 
 vert the due course of law and justice in that behalf, and to cause 
 and procure the said A., for the felony aforesaid, to escape with im- 
 punity, afterwards, to wit, on the day and year aforesaid, unlawfully, 
 and tor wicked gain's sake, did compound the said felony with the 
 said J. N., the husband of the said A., and did then exact, take, 
 receive, and have of and from the said J. N. the sum of twenty-sis 
 shillings, for and as a reward for compounding the said felony and 
 desisting from all further prosecution against the said A. for the 
 felony aforesaid ; and that the said J. S., on the day and year afore- 
 said, did thereupon desist, and from that time hitherto hath desisted 
 from all further prosecution of the said A. for the felony aforesaid ; 
 to the great hinderance of justice, in contempt of our lady the Queen 
 and her laws, and against the peace of our lady the Queen, her crown 
 and dignity. See the precedent, 4 Went. 327. 
 
 Misdemeanor at common law : pumishdble hy fine and imprisonment. 
 See 1 Hawh. c. 59, g. 5, etc. As t-o compounding informations on penal 
 statutes, see 18 Eliz. c.5: R. v. Stone, 4:0. & P. 379 : R. v. Gotley, 
 R. cfe iJ. 84: R. V. Crisp, 1 B. <& Aid. 282. A person may he con- 
 victed under that statute, for talcing money as a reward for forbearing 
 to prosecute, although in fact no offence liable to a penalty have been 
 committed by the person from whom the money is taken. R. v. Best, 
 2 Mood. C. G. 125 ; 9 C.SP. 368. As to compounding misdemeanors, 
 see 1 Russ. C. <& M., by Greaves, 195 (ith ed.). 
 
 Evidence. 
 
 Prove the felony to have been committed by A. N., as directed 
 amte, p. 314 ; and prove that J. S. received twenty-six shillings, or 
 some part thereof, from J. N. upon an understanding that J. S. would 
 not further prosecute A. N. for the felony ; and that in fact he has 
 not further prosecuted her since for the same. 
 
 Indictment for taking a Reward for the Recovery of Stolen 
 Property. 
 
 Central Criminal Court, to wit : — The jurors for our lady the 
 Queen upon their oath present, that J. S., on the first day of June, 
 
 in the year of our Lord , feloniously, unlawfully, and corruptly 
 
 did take and receive from one J. N. certain money and reward, to 
 wit, the sum of five pounds of the moneys of the said J. N., under 
 pretence (" vmder pretence or upon account") of helping the said J. N. 
 to certain goods and chattels (" chattel, money, valuable security, or 
 other property whatsoever") of him the said J. N., before then feloni- 
 ously stolen, taken, and carried away (" by any felony or misdemeanor 
 stolen, taken, obtained, extorted, embezzled, converted, or disposed of"), 
 the said J. S. not having used all due diligence to cause the person 
 by whom the said goods and chattels were so stolen, taken, and 
 carried away as aforesaid, to be brought to trial for the same : against 
 the form [as amte, p. 347] . 
 
 Felony : penal servitude for not more than seven and not less than 
 five [27 <b 28 Vict. o. 47, s. 2, ante, p. 173] years, or imprisonment not 
 exceeding two years, with or without hard labour, and with or without 
 
838 Libels reflecting on the Administration of Justice. 
 
 solitary confinement (such confinement not exceeding one month at any 
 one time, nor three months in any one year, 24 & 25 Vict. c. 96, s. 119, 
 ante, p. 308) ; and, if a male imder the age of eighteen years, with or 
 without whipping. — ^24 tfc 25 Vict. c. 96, s. 101. As to requiring the 
 offender to enter into recognizances and find sureties for keeping the 
 peace, Id. s. 117, ante, p. 307. 
 
 Ehiidence. 
 
 Prove that the goods, etc. were stolen or obtained in the mode 
 stated in the indictment ; and prove that the defendant received the 
 money from J. N., or some person on his behalf, upon the pretence 
 or account stated in the indictment. It was decided to be an offence 
 within the repealed stat. 4 G. 1, c. 11, s. 4, which was similar to the 
 present section, to take money under pretence of helping a man to 
 goods stolen from him, though the defendant had no acquaintance 
 with the felon, and did not pretend that he had; and though he had 
 no power to apprehend the felon, and though the goods were never 
 restored, and the defendant had no power to restore them. R. v. 
 Ledbitter, 1 Mood. C. C. 76. And where A. had her goods stolen, and 
 B., who knew the thieves, received money from A. to endeavour to 
 purchase the stolen property from the thieves for A., but not meaning 
 to bring the thieves to justice ; it was held that B. was guilty of the 
 felony of taking money on account of helping A. to the return of 
 stolen goods within the 7 c6 8 (?. 4, c. 29, s. 58; which was similar to 
 the present enactment. R. v. Pascoe, 1 Den. 456 ; 2 C.(& K. 927 ; 18 
 L.J. {M. C.) 186. As to advertising a reward for the return of 
 stolen property, see 24 <& 25 Vict. c. 96, s. 102 (ante, p. 836). 
 
 Skct. 12. 
 libels reflecting on the administration op justice. 
 
 Indictment for a Libel against a Judge and Jury in the Execution 
 of their Duties. 
 
 Middlesex, to wit : — The jurors for our lady the Queen upon their 
 oath present, that heretofore, to wit, at the sittings at Nisi Prius, 
 holden after Trinity Term, to wit, on the twentieth day of June, in 
 the year of the reign of our sovereign lady Victoria, at West- 
 minster, in the county of Middlesex, before the Right Honourable 
 Sir Frederick Pollock, chief baron of our said lady the Queen of her 
 Court of Exchequer at Westminster aforesaid, a certain issue duly 
 joined in the said court between one A. B. and one C. D., in a certain 
 action, in which the said A. B. was plaintiflf, and the said C. D. was 
 defendant, came on to be tried in due form of law, and was then and 
 there tried by a certain jury of the country in that behalf duly sworn', 
 and taken between the parties aforesaid. And the jurors aforesaid, 
 upon their oath aforesaid, do further present, that J. S., being a 
 wicked and ill-disposed person, wickedly and maliciously contriving 
 
Libels reflecting on the Administration of Justice. 839 
 
 and intending to bring the administration of justice in this kingdom 
 into contempt and to scandalize and vilify the said Sir Frederick 
 Pollock, and the jurors by whom the said issue was so tried as afore- 
 said, and to cause it to be believed that [here state the effect of the 
 libel; see ante, p. 766] on the twenty -first day of June, in the year 
 aforesaid, wickedly and maliciously did write and publish, and cause 
 and procure to be written and published, a certain false, wicked, 
 malicious and scandalous libel, of and concerning the administration 
 of justice in this kingdom, and of and concerning the trial of the said 
 issue, and of and concerning the said Sir Frederick Pollock, and the 
 jurors by whom the said issue was so tried as aforesaid, according to 
 the tenor and effect following ; that is to saj' [here set out the lihel, 
 together with such innuendoes as may he requisite : see ante, p. 766] ; 
 to the great scandal and reproach of the administration of justice in 
 this kingdom, in contempt of our lady the Queen and her laws, to the 
 evil example of all others in the like case offending, and against the 
 peace of our lady the Queen, her crown and dignity. 
 
 Fine or imprisonment, or both. See B. v. White, 1 Camp. 359 : R. 
 V. Watson, 2 2". R. 199. This offence is not triable at quarter sessions. 
 5 <& 6 Vict. c. 38, s. 1 {ante, p. 104). As to the evidence, see ante, 
 p. 770. 
 
 Indictment for Slanderous Words to a Magistrate. 
 
 Middlesex, to wit: — The jurors for our lady the Queen upon their 
 oath present, that heretofore, to wit, on the first day of June, in the 
 
 year of our Lord , one J. S. was brought before J. N., esquire, 
 
 then and yet being one of the justices of our said lady the Queen, 
 assigned to keep the peace of our said lady the Queen in and for the 
 county of M., and also to hear and determine divers felonies, tres- 
 passes, and other misdeeds committed in the said county; and the 
 said J. S. was then charged before the said J. N., upon the oath of 
 one A. C, that he the said J. S. had then lately before feloniously 
 taken, stolen, and taken away divers goods and chattels of the said 
 A. C. And the jurors aforesaid, upon their oath aforesaid, do further 
 present, that the said J. S. being a scandalous and ill-disposed per- 
 son, and wickedly and maliciously intending and contriving to scan- 
 dalize and vilify the said J. N. as such justice as aforesaid, and to 
 bring the administration of justice in this kingdom into contempt, 
 afterwards, and whilst the said J. N., as such justice as aforesaid was 
 examining and taking the depositions of divers witnesses against 
 him the said J. S., in that behalf, to wit, on the day and year afore- 
 said, wickedly and maliciously, in the presence and hearing of divers 
 good and liege subjects of our lady the Queen, did publish, utter, 
 pronounce, declare, and say with a loud voice to the said J. N., and 
 whilst he the said J. N. was so acting as such justice as aforesaid, 
 " Yoii are a scoundrel and a liar; you would hang your own father 
 if you could make a groat by his execution;" to the great scandal 
 and reproach of the administration of justice in this kingdom, to the 
 great scandal and damage of the said J. N., in contempt of our lady 
 the Queen and her laws, to the evil example of all others in the like 
 case offending, and against the peace of our lady the Queen, her 
 crown and dignity. 
 Fine or imprisonment, or both. See R. v.Pococlc, 2 Str. 1157: R. v. 
 
840 Libeh reflecting on the Administration of Justice. 
 
 Weltje, 2 Camp. 142; and see 2 Salh. 698. If there he any doubt as 
 to the words, lay them differently in different counts. 
 
 Evidence. 
 
 Prove the charge before the magistrate; and prove that whilst the 
 magistrate was in the execution of his duty, taking the depositions of 
 the witnesses, the defendant addressed him, and spoke the words laid 
 in some one of the counts of the indictment. It is sufficient to prove 
 that the magistrate was acting as such. Berryman v. Wise, 4 T. R. 
 366: R. V. Gordon, 1 Leach, 615. As to the proof of the words, see 
 ante, p. 775. 
 
( 841 ) 
 
 CHAPTER III. 
 
 OFFENCES AGAINST THE PUBLIC PEACE. 
 
 Sect. 1. Riot, p. 841. 
 
 2. Affray, p. 847. 
 
 3. Forcible Entry or Detainer, p. 847. 
 
 4. Challenge to Fight, p. 851. 
 
 5. Threatening Letter, p. 853. 
 
 6. Libel, p. 855. 
 
 Sect. 1. 
 
 RIOT. 
 
 Indictment for Riot and Assault. 
 
 Central Criminal Court, to wit:— The jurors for our lady the Queen 
 upon their oath present, that J. S., J. W. and E. W., together with 
 divers other evil-disposed persons, to the number of ten and more, to 
 the jurors aforesaid unknown, on the first day of June, in the year of 
 
 our Lord , at the parish of B., in the county of M., unlawfully, 
 
 riotously and routously did assemble and gather together, to disturb 
 the peace of our said lady the Queen; and being so then and there 
 assembled and gathered together, in and upon one A., the wife of 
 J. N., in the peace of God and of our lady the Queen then and there 
 being, unlawfully, riotously and routously did make an assault, and 
 her the said A. then and there unlawfully, riotously and routously 
 did beat, wound and ill-treat, so that her life was greatly despaired 
 of; and other wrongs to the said A. then and there unlawfully, riot- 
 ously and routously did, to the great disturbance and terror of the 
 liege subjects of our lady the Queen then and there being; in con- 
 tempt of our said lady the Queen and her laws, to the evil example 
 of all others in the like case offending, and against the peace of our 
 lady the Queen, her crown and dignity. (See the precedents, Cro. 
 Cira. Com. 413 et seq.: 4 Went. 150, 305 et seq.) You may add a 
 covmtfor a common assault. (See ante, p. 657.) 
 
 Fine or imprisonment, or both; and, by 3 G. i, c. 114, ante,p.Vlb, 
 hard labour. 
 
 Eaidence. 
 
 That J. S., etc., together with divers others.}— It must be proved 
 that three persons at least were engaged in this unlawful assembly 
 and assault, otherwise the defendants must be acquitted; for unless 
 committed by three or more, it is no riot. 2 Sawk. c. 47, s. 8: R. v. 
 Scott, 3 Burr. 1262; 1 W. Bl. 291, 350: R. v. Sadbury, 1 L. Raym. 
 484; 2 Salk. 593. 
 
 w. 
 
842 Biot. 
 
 Unlawfully, riotously, and routously did assemble.'] — It must be 
 proved that these three or more persons assembled together; and 
 that their assembling was accompanied with some such circumstances, 
 either of actual force or violence, or at least of an apparent tendency 
 thereto, as were calculated to inspire people with terror; B. v. Hughes, 
 4 C. <& P. 373; such as being armed, using threatening speeches, 
 turbulent gestures, or the like. 1 ffawJc. c. 65, s. 5. If an assembly 
 of persons be not accompanied with such circumstances as these, it 
 can never be deemed a riot, however unlawful their intent, or how- 
 ever unlawful the acts which they actually commit. Id; Lamb. 178; 
 Dalt. c. 137. It is a sufficient terror and alarm however to sustain 
 the indictment, if any one of the Queen's subjects be in fact terri- 
 fied. B. V. Phillips, 2 Mood. C. C. 252; S. C, as B. v. Langford, C. 
 c6 Mar. 602. If persons meet at a fair or wake, or on any other law- 
 ful and innocent occasion, and on a sudden quaiTcl they fight to- 
 gether, this is no riot, but an affray merely; but if, upon a dispute 
 arising, they form themselves into parties, with promises of mutual 
 assistance, and then fight, it is a riot ; for, in this latter case, the de- 
 sign to break the peace is as premeditated as if they had originally 
 met for that purpose. 1 Hawk. c. 65, s. 3. Where a riot is proved 
 to have taken place, the mere presence of a person among the rioters, 
 even although he possessed the power and refused to exercise it, of 
 stopping the riot, does not render him liable as one of the rioters. 
 B. V. Atkinson, 11 Cox, 330; per Kelly, C. B. In order to render him 
 so liable, it must be shown that he did something by word or act to 
 take part in, help or incite to the riotous proceedings. Id. 
 
 It is not necessary, to constitute a riot, that the Riot Act should be 
 read. Before the proclamation can be read, a riot must exist : and 
 the effect of the proclamation will not change the character of the 
 meeting, but will make those guilty of a felony who do not disperse 
 within one hour after the proclamation is read. B. v. Furzey, 6 C <fi 
 P. 81. 
 
 In and upon one A. did make an assault, etc.'] — Prove the assault 
 and battery as directed amte, p. 658. And this must be proved, other- 
 wise the defendants must be stcquitted of the riot, although it would 
 seem that they may still be found guilty of the rout or of the unlaw- 
 ful assembly. For, where persons assemble together for the purpose 
 of doing an act, and the assembly is such as is above described, if 
 they do not proceed to execute their pui-pose, it is but an unlawful 
 assembly, not a riot; if, after so assembling, they proceed to execute 
 the act for which they assembled, but do not execute it, it is termed 
 a rout; but if they not only so assemble, but proceed to execute their 
 design, and actua.lly execute it, it is then a riot. 1 Hawk. c. 65, s. 1; 
 Dalt. 0. 136: B. v. Birt, b C. <& P. 154: B. v. Vincent, 9 C. i& P. 91. 
 
 It is immaterial, however, whether the act done be unlawful or 
 not; doing it in a manner calculated to inspire people with terror is 
 equally punishable, whether it be lawful or otherwise. 1 Mawk. 
 c. 65, s. 7. Yet, where the object of the assembly is lawful, it in 
 general requires stronger evidence of the terror of the means, to in- 
 duce a jury to return a verdict of guilty, than if the object were un- 
 lawful; and it has even been holden, that, if a number of persons 
 assemble for the purpose of abating a public nuisance, and appear 
 with spadesj iron crows, and other tools for that purpose, and abate 
 it accordingly, without doing more, it is no riot, Dalt. c. 137, unless 
 threatening language or other misbehaviour, in apparent disturbance 
 of the peace, be at the same time used. Id. 
 
Riot. 843 
 
 An assembly of persons to witness a prize fight is an unlawful as- 
 sembly, and every one present and countenancing the fight is guilty 
 of an offence. R. v. BiUingham, 2 C. & P. 234; R. v. Perkins, 4 C. 
 & P. 537. 
 
 Indictment for a Riot and Tumult. 
 
 Central Criminal Court, to wit: — The jurors for our lady the Queen 
 upon their oath present, that J. S., J. W. and E. W., together with 
 divers other evil-disposed persons, to the number of fifty and more, to 
 the jurors aforesaid unknown, on the first day of June, in the year of 
 
 our Lord , being then armed with sticks, staves, and other ofien- 
 
 sive weapons, at the parish of B., in the county of M., unlawfully, 
 riotously and routously did assemble and gather together to disturb 
 the peace of our said lady the Queen, and being so assembled and 
 gathered together, armed as aforesaid, did then and there unlawfully, 
 riotously, and routously make a great noise, riot and disturbance, and 
 did then and there remain and continue armed as aforesaid, making 
 such noise, riot and disturbance, for the space of an hour and more 
 then next following, to the great disturbance and terror not only of 
 the liege subjects of our said lady the Queen there being and resid- 
 ing, but of all other the liege subjects of our said lady the Queen 
 then passing and repassing in and along the Queen's common high- 
 way there : in contempt of our said lady the Queen and her laws, to 
 the evil example of all others in the like case offfending, and against 
 the peace of our lady the Queen, her crown and dignity. 
 
 Fine or imprisonment, or both; and by 3 G. 4, c. 114, ante, p. 175, 
 hwd labour. As to the evidence, see amte, p. 841. 
 
 EIOTEES REMAINING ONE HOUR TOGETHER AFTER PROCLAMATION. 
 
 Statutes. 
 
 \ G.\, St. 2, c. 5, s. 1 — Rioters remaining one hour after Procla- 
 mation^ — Whereas of late many rebellious riots and tumults have 
 been in divers parts of this kingdom, to the disturbance of the public 
 peace and the endangering of his Majesty's person and government, 
 and the same are yet continued and fomented by persons disaffected 
 to his Majesty, presuming so to do, for that the punishments provided 
 by the laws now in being are not adequate to such heinous offences ; 
 and by such rioters, his Majesty and his administration have been 
 most maliciously and falsely traduced, with an intent to raise divi- 
 sions, and to alienate the affections of the people from his Majesty; 
 ; therefore, for the preventing and suppressing of such riots and tumults, 
 and for the more speedy and effectual punishing the offenders therein, 
 be it enacted, etc., that if any persons to the number of twelve or more, 
 being unlawfully, riotously, and tumultuously assembled together, to 
 the disturbance of the public peace, at any time after the last day 
 of July, in the year of our Lor3 1715, and being required or com- 
 manded by any one or more justice or justices of the peace, or by the 
 sheriff of the county or his under-sheriff, or by the mayor, bailiff or 
 bailiffs, or other head officer, or justice of the peace of any city or 
 
 oo2 
 
844 Riot. 
 
 town corporate where such assembly shall be, by proclamation to be 
 made in the King's name, in the form hereinafter directed, to disperse 
 themselves, and peaceably to depart to their habitations, or to their 
 lawful business, shall, to the number of twelve or more (notwithT. 
 standing such proclamation made), unlawfully, riotously, and tumul- 
 tuously remain or continue together for the space of one hour after 
 such command or request made by proclamation, that then such 
 continuing together, to the number of twelve or more, after such 
 command or request made by proclamation, shall be adjudged 
 felony without benefit of clergy, and the offenders therein shall be 
 adjudged felons, and shall suflFer death as in case of felony, without 
 benefit of clergy. 
 
 Sect. 2 — Form of Proclamation.'] — Enacts, that the order and form 
 of the proclamation that shall be made by the authority of this act 
 shall be as hereafter followeth ; (that is to say,) the justice of the 
 peace or other persons authorized by this act to make the said pro- 
 clamation, shall among the said rioters, or as near to them as he can 
 safely come, with a loud voice command, or cause to be commanded, 
 silence to be while proclamation is making, and after that shall 
 openly and with a loud voice make, or cause to be made, proclama- 
 tion of these words, or like in effect : — ' 
 
 " Our sovereign lord the King chargeth and commandeth all per- 
 sons, being assembled, immediately to disperse themselves, and 
 peaceably to depart to their habitations, or to their lawful business, 
 upon the pains contained in the act made in the first year of King 
 George, for preventing tumults and riotous assemblies. 
 
 " God save the King." , 
 
 And every such justice and justices of the peace, sheriff, under- 
 sheriff, mayor, bailiff, and other head officer aforesaid, within the 
 limits of their respective jurisdictions, are hereby authorized, em- 
 powered, and required, on notice or knowledge of any such unlawful, 
 riotous, and tumultuous assembly, to resort to the place where such 
 unlawful, riotous, and tumultuous assembly shall be of persons to the 
 number of twelve or more, and there to make, or cause to be made, 
 proclamation in manner aforesaid. 
 
 Sect. 5 — Opposing Proclamation.l — Pi'ovides and enacts, that it 
 any person or persons do or shall, with force and arms, wilfully and 
 knowingly oppose, obstruct or in any other manner wilfully or know- 
 ingly let, hinder, or hurt, any person or persons that shall begin to 
 proclaim, or go to proclaim, according to the proclamation hereby 
 directed to be made, whereby such proclamation shall not be made, 
 that then every such opposing, obstructing, letting, hindering or 
 hurting such person or persons so beginning or going to make such 
 proclamation as aforesaid, shall be adjudged felony without benefit of 
 clergy, and the offenders therein shall be adjudged felons, and shall 
 suffer death as in case of felony, without benefit of clergy ; and that, 
 also, every such person or persons so being unlawfully, riotously and 
 tumultuously assembled to the number of twelve as aforesaid, or 
 more, to whom proclamation shall or ought to have been made if the 
 same had not been hindered as aforesaid, shall likewise, in case they 
 or any of them, to the number of twelve or more, shall continue to- 
 gether, and not disperse themselves within one hour after such let or 
 hinderance so made, having knowledge of such let or hinderance so 
 
Riot. 845 
 
 made, shall be adjudged felons, and shall suffer death as in cases of 
 felony, without benefit of clergy. 
 
 Sect. 8 — Limitation of Proceedings.'] — Provides, that no person or 
 persons shall be prosecuted by virtue of this act, for any offence or 
 offences committed contrary to the same, unless such prosecution be 
 commenced within twelve months after the offence committed. 
 
 7 TF. 4 c6 1 Vict. c. 91, s. 1.] — Recites the stat. 1 G. 1, c. 5, and 
 enacts, that if any person shall, after the commencement of this act 
 (1st Oct. 1837), be convicted of any of the offences therein men- 
 tioned, such person shall not suffer death, or have sentence of death 
 awarded against him or her for the same, but shall be liable, at 
 the discretion of the court, to be transported beyond the seas for 
 the term of the natural life of such person, or for any term not less 
 than fifteen years, or to be imprisoned for any term not exceeding 
 three years. 
 
 9 (§ 10 Vict. c. 24, «. 1.}— Ante, p. 174. 
 
 20 (& 21 Vict. c. ii.J—Ante, p. 172. 
 
 27 (& 28 Vict. e. 47, s. 2.1— Ante, p. 173. 
 
 Indictment. 
 
 Central Criminal Court, to wit : — The jurors for our lady the Queen 
 upon their oath present, that J. S., J. W. and E. W., together with 
 divers other evil-disposed persons, to the number of twelve and more, 
 to the jurors aforesaid unknown, on the first day of June, in the year 
 of our Lord , at the parish of B., in the county of M., unlaw- 
 fully, riotously and tumultuously did assemble together, to the dis- 
 turbance of the public peace : * And that the said J. S., J. W., 
 E. W. and the said other persons to the jurors aforesaid unknown, 
 being so unlawfully, riotously and tumultuously assembled together, 
 to the disturbance of the public peace as aforesaid, afterwards, and 
 whilst they were so assembled as aforesaid, to wit, on the day 
 and year aforesaid, at the parish aforesaid, in the county aforesaid, 
 one A. C, esquire (then being one of the justices of our said lady 
 the Queen, assigned to keep the peace of our said lady the Queen 
 in and for the county aforesaid, and also to hear and determine 
 divers felonies, trespasses and other misdeeds committed in the said 
 county), as near to them the said J. S., J. W., E. W. and the said 
 other persons to the jurors aforesaid unknown, so unlawfully, riot- 
 ously and tumultuously assembled as aforesaid, as he the said A. C. 
 could then and there safely come, did then and there command, and 
 cause to be commanded silence to be while proclamation was 
 making, and that the said A. C, after that, did then and there as 
 near to them the said J. S., J. W., E. W. and the said other per- 
 sons so assembled as aforesaid, as he the said A. C. could then and 
 there safely come, openly and with a loud voice make, and cause to 
 be made, proclamation (according to the form of the statute in such 
 case made and provided) in these words following, that is to say : 
 " Our sovereign lady the Queen chargeth and oommandeth all per- 
 sons being assembled, immediately to disperse themselves, and 
 peaceably to depart to their habitations, or to their lawful business. 
 
846 Rht. 
 
 upon the pains contained in the act made in the first year of the 
 reign of King George the First, for preventing tumults and riotous 
 assemblies. God save the Queen." And the jurors aforesaid, upon 
 their oath aforesaid, do further present that the said J. S., J. W., 
 E. W. and the said other persons, to the number of twelve and 
 more, to the jurors aforesaid unknown, being so required and com- 
 manded by the said A. C, the justice aforesaid, to disperse them- 
 selves, and peaceably to depart to their habitations, or to their 
 lawful business, did then and there, to the number of twelve and 
 more, notwithstanding the said proclamation so made as aforesaid, 
 feloniously, unlawfully, riotously and tumultuously remain and con- 
 tinue together for the space of one hour after such command so 
 made by the said proclamation as aforesaid : in contempt of our 
 said lady the Queen and her laws, to the great disturbance and 
 terror of the quiet and peaceable subjects of our said lady the 
 Queen, to the evil example of all others in the like case offending ; 
 against the form \as ante, p. 347]. Care must he taken to set out the 
 proclamation correctly. Where the indictment omitted the words " of 
 the reign of" in setting out the proclamation, Patteson, J., held the 
 variance to be fatal. B. v. Woolcoch, b C & P. 516. 
 
 Felony : 1 G. 1, st. 2, c. 5, «. 1 : penal servitude for life or for not 
 less than five years, or imprisonment not exceeding three years, 7 W. i 
 & 1 Vict. c. 91, s. 1 ; 9 f§ 10 Vict. c. 24, s. 1 {ante, p. 174); 20 & 21 
 Vict. c. 3 {ante, p. 172) ; 27 (6 28 Vict. c. 47, s. 2 {ante, p. 173) ; the. 
 imprisonment being with or without haird labour, and with or without 
 solitary confinement {such confinememt not exceeding one month at any 
 one time, nor three months in any one year. 7 W. 4 <fc 1 Vict. c. 91, 
 s. 2 {ante, p. 782). Opposing the making of the proclamation is also 
 felony, 1 O. 1, st, 2, c. 5, s. 5, subject lo the same pumishment. 
 
 This offence is not triable at quarter sessions. 5 <6 6 Vict. c. 38, s. 1 
 {amte, p. 104). 
 
 Evidence. 
 
 1. Prove that the defendants, together with others, to the number 
 of twelve at least, were " unlawfully, riotously and tumultuously " 
 assembled together, " to the disturbance of the public peace." It 
 does not seem from these words of the statute that it is necessary 
 that a riot should have actually been committed ; it seems to be 
 sufficient that the assembly was of such a nature, and gathered to- 
 gether under such circumstances, that if they had done the act for 
 the purpose of which they were assembled, it would have been a 
 riot. P. V. James, b C. <& P. 153. 
 
 2. Prove that silence was commanded, and proclamation made, as 
 stated in the indictment. The proclamation must be read correctly. 
 Where the magistrate in reading the proclamation omitted the words 
 " God save the King," it was holden that persons remaining after 
 the proclamation could not be capitally convicted. R. v. Child, 4 C. 
 d P. 442. 
 
 3. Prove that the defendants, together with others, to the number 
 of twelve or more, " unlawfully, riotously and tumultuously" remained 
 and continued together for one hour or more after proclamation so 
 made. 
 
 4. Prove that the prosecution was commenced within twelve (lunar) 
 months after the offence committed. 1 G. 1, st. 2, c. 5, s. 8. 
 
 As to the demolition, etc., of houses, etc., by rioters, see ante, 
 p. 523. 
 
Forcible Entry, 847 
 
 Sect. 2. 
 
 A f F R A Y. 
 
 Indictment for cm Affray. 
 
 Middlesex, to wit:— The jurors for our lady the Queen upon their 
 oath present, that J. S. and J. W., on the first day of June, in the 
 year of our Lord — -, being unlawfully assembled together and 
 arrayed in warlike manner, in a certain public street and highway, 
 situate in the parish of B., in the county of M., unlawfully, and to the 
 great terror and disturbance of divers liege subjects of our said lady 
 the Queen then and thei'e being, did make an affray; in contempt 
 of our said lady the Queen and her laws, to the evil example of all 
 others in the like case offending, and against the peace of our lady 
 the Queen, her crown and dignity. 
 
 Pine or imprisonment, or both. 
 
 Evidence. 
 Prove that the defendants fought in a public street or highway : 
 for if it be in private, it is an assault and battery merely, and not an 
 affray. 1 Hawk. c. 63, s. 1. Also, no quarrelsome or threatening 
 words whatever will amount to an affray. Id. s. 3. 
 
 Sect. 3. 
 fokcible entry ok detainee. 
 
 Statutes. 
 
 6 Hie. 2, c. 8,] — And also the King defendeth, that none from 
 henceforth make any entry into any lands and tenements, but in case 
 where entry is given by the law : and in such case not with strong 
 hand, nor with multitude of people, but only with peaceable and easy 
 manner ; and if any man from henceforth do to the contrary, and 
 thereof be duly convict, he shall be punished by imprisonment of his 
 body, and thereof ransomed at the King's will. 
 
 21 Jac. 1, c. 15.] — Enact, that such judges, justices or justice of 
 the peace, as by reason of any act or acts of parliament now in force 
 are authorized and enabled, upon inquiry, to give restitution of pos- 
 session unto tenants of any estate of freehold, of their lands or tene- 
 ments which shall be entered upon with force, or from them with- 
 holden by force, shall by reason of this present act have the like and 
 the same authority and ability from henceforth (upon indictment of 
 such forcible entries, or forcible withholdings before them duly 
 found), to give like restitution of possession unto tenants for term of 
 years, tenants by copy of court-roll, guardians by knights' service, 
 tenants by elegit, statute-merchant, and staple, of lands or tenements 
 by them so holden, which shall be entered upon by force, or holden 
 from them by force. 
 
848 Forcible Entry. 
 
 Iiidictment for a Forcible EJntry into a Freehold^ on 
 Stat. 5 R. 2, c. 8. 
 
 Middlesex, to wit: — Tlie jurors for our lady the Queen upon their 
 oath present, that one J. N., on the first day of June, in the year of 
 our Lord , was seised in his demesne as of fee of and in a cer- 
 tain messuage, with the appurtenances, situate and being in the 
 parish of B., in the county of M. ; and the said J. N., being so seised 
 thereof as aforesaid, J. S. afterwards, to wit, on the day and year 
 aforesaid, into the said messuage and appurtenances aforesaid, with 
 force and arms, and with strong hand, unlawfully did enter, and the 
 said J. N. from the peaceable possession of the said messuage, with 
 the appurtenances aforesaid, with force and arms, and with strong 
 hand, unlawfully did expel and put out ; and the said J. N. from the 
 possession thereof, so as aforesaid, with force and arms, and with 
 strong hand, being unlawfully expelled and put out, the said J. S. 
 from the said first day of June, in the year aforesaid, until the day of 
 the taking of this inquisition, from the possession of the said mes- 
 suage, with the appurtenances afoi'esaid, with force and arms, and 
 with strong hand, unlawfully and injuriously did keep out, and still 
 doth keep out; to the great damage of the said J. N.; against the 
 form [as ante, p. 347]. See the precedents, 4 Went. 149; 6 Went. 403, 
 428. The premises must be described with the same certainly as in a 
 declaration in ejectment, on accownt of the restitution which follows 
 conviction. If the estate J. N. had in the premises were not a fee- 
 simple, but an estate in tail, or for life merely, describe it as such. See 
 R. V. Bowser, 8 Dowl. P. C. 128. 
 
 Imprisonment, and ransom at the Qv,een!s will. 5 R. 2, c. 8. 
 
 Ejvidence. 
 
 The prosecutor must prove : — First, that he was seised in fee of 
 the premises in question, at the time of the forcible entry; and 
 proof that he was in the actual occupation of the premises, or in the 
 perception of the rents and profits, is sufficient prima facie evidence 
 of his seisin. See Jayne v. Price, 5 Taunt. 326 ; 1 Marsh, 68. This 
 presumption, however, may be rebutted, either by direct evidence of 
 his having a less estate, or by evidence of circumstances from which 
 the jury may presume it. Id. But it is immaterial whether the 
 estate thus proved be an estate by right or by wrong ; for even.if 
 the defendant have a right of entry, still his asserting that right 
 " with strong hand or with multitude of people," is equally an ofifence 
 within the statute as if he had no right. The statute, however, does 
 not extend to a case where the party ousted had the bare custody 
 of the premises for the defendant; 1 Hawh. c. 64, «. 32; but it ex- 
 tends to the forcible ouster of one joint tenant, or tenant in common, 
 by another. Id. s. 33. It may be considered a good general rule, 
 also, that the statute extends to all hereditaments, to which the de- 
 fendant, if he had a right, might have asserted that right by a peace- 
 able entry. 
 
 Secondly, the prosecutor must prove the forcible entry. An entry 
 " with strong hand," or " with multitude of people," is the ofience 
 described in the statute. Therefore, an entry by breaking the doors 
 or windows, etc., whether any person be in the house or not, espe- 
 cially if it be a dwelling-house, is a forcible entry within the statute. 
 See 1 Hawh. c. 64, s. 26. So, an entry where personal violence is 
 
Forcible Entry. 849 
 
 done to the prosecutor, or to any of his family or servants, or to any 
 person or persons keeping the possession for him, Id. s. 26, or even 
 where it is accompanied with such threats of personal violence 
 (either actual, or to be implied from the actions of the defendant, or 
 from his being unusually armed or attended, or the like), as were 
 likely to intimidate the prosecutor or his family, etc., and to deter 
 them from defending their possession ; Id. ss. 27, 20, 21 ; Milner v. 
 Maclean, 2 C «£ P. 17; is a forcible entry within the statute. But an 
 entry by an open window, or by opening the door with a key, or by 
 mere trick or artifice, such as by enticing the owner out and then 
 shutting the door upon him, or the like, without further violence. 
 Com. Dig. Fore. Ent. (.4. 3) ; 1 Hawh. c. 64, s. 26, or if efiected by 
 threats to destroy the owner's goods or cattle merely, and not by 
 threats of personal violence, 1 Hawk. c. 64, s. 28, is not deemed a 
 forcible entry. A mere trespass will not support an indictment for 
 forcibly entry ; there must be such force or show of force as is cal- 
 culated to prevent resistance. B. v. Smyth, h C. & P. 201. If, how- 
 ever, whilst the owner is out of his house, the defendant forcibly 
 withhold him from returning to it, and in the meantime send persons 
 to take possession of it peaceably, this is said to be a forcibly entry. 
 1 Hawk. c. 64, s. 26. Also, where a party having right, and whose 
 entry is congeable, enters or makes claim, and the other party after- 
 wards continues to hold possession by force ; this is considered a 
 forcibly entry in the party so holding ; because his estate is defeated 
 by the entry or claim, and his continuance in possession is deemed a 
 new entry. Id. ss. 22, 34 ; Co. Lit. 251. 
 
 Where the party entering has in fact no right of entry, all persons 
 in his company, as well those who do not use violence as those who 
 do, are equally guilty ; but if he have a right of entry, then those 
 only who use or threaten violence, 3 Bac. Ahr. Fore. Ent. (-B.), or 
 who actually abet those who do, are guilty. A wife may be guilty 
 of a forcible entry into the dwelling-house of her husband, and other 
 persons also, if they assist her in the force, although her entry in 
 itself is lawful. S. v. Smyth, 1 M. & Boh. 155; 5 C. <& P. 201. 
 
 Thirdly, as to the expulsion; it is necessary to prove the expulsion, 
 and that the prosecutor is still kept out of possession, merely for the 
 purpose of obtaining restitution of the premises ; 1 Hawk. c. 64, s. 41 ; 
 but it is no part of the offence described by the statute, which men- 
 tions a forcibly entry merely. And it may be necessary here to 
 observe, that no restitution shall be awarded, if the defendant have 
 been permitted to remain quietly in possession for three years, pre- 
 viously to the finding of the indictment. SI El. c. 11. 
 
 In all cases which admit of restitution, the prosecutor has a direct 
 interest in the verdict, and therefore was not, until the stat. 6 (fe 7 
 Viet. c. 85, a competent witness. B. v. Beavan, By. & M. 242: B. v. 
 Williams, 4 Mam. & B. 471 ■ '3 B. & C. 549. 
 
 A judge at the assizes may, in his discretion, refuse to award resti- 
 tution, after an indictment for forcible entry and detainer has been 
 found by a grand jury ; and the court of Queen's Bench will not re- 
 view his decision. B. v. Harlamd, 1 M. & Boh. 141; % A. & E. 826; 
 1 Per. <fe jD. 93 ; 8 i. J. (M. C.) 60. As to the form of a writ of 
 restitution, see Dalt. c. 182. 
 
 5 
 
850 Forcible Entry. 
 
 Indictment for a Forcible Entry into a Leasehold, etc., on 
 Stat. 21J.1, c. 15. 
 This may he the same as the last precedent, with such alterations only 
 as are necessary to adapt it to a term for years, tenancy by copy of 
 court-roll, or tenamcy by elegit, statute-merchant, and staple, as thus :] — 
 that J. N., late of etc., etc., was possessed of a certain messuage 
 with the appurtenances, situate and being in, etc., for a certain terra 
 of years, whereof divers, to wit, ten years, were then to come,' and 
 are still unexpired: and the said J. N. being so possessed thereof, 
 etc., etc., as in the last precedent. The evidence is the same as in the 
 last case, except merely in the proof of the estate the prosecutor had in 
 
 Indictment for a Forcible Detainer, on Stat. 8 H. 6, c. 9, or 
 21 J. 1, c. 15. 
 
 The same as in the last two precedents respectively, to the end of the 
 statement of the seisin or possession ; then proceed thus :] — and the said 
 J. N. being so seised [or possessed] thereof, J. S. afterwards, to wit, 
 on the day and year aforesaid, into the said messuage, with the ap- 
 purtenances aforesaid, unlawfully did enter, and the said J. N. from 
 the peaceable possession of the said messuage, with the appurte- 
 nances aforesaid, then and there unlawfully did expel and put out; 
 and the said J. ijj. from the possession thereof so as aforesaid being 
 unlawfully expelled and put out, the said J. S., from the said third 
 day of August, in the year aforesaid, until the day of the taking of 
 this inquisition, from the possession of the said messuage, with the 
 appurtenances aforesaid, with force of arms and with strong hand 
 unlawfully and injuriously did keep out, and the said messuage with 
 the appurtenances and the possession thereof unlawfully and for- 
 cibly did hold, and still doth hold, from the said J. N.; to the great 
 damage of the said J. N. ; against the form [as cmte,p. 347]. 
 
 Evidence. 
 
 Prove the seisin or possession, as in the two former cases. Prove 
 an entry; whether peaceable or not is immaterial. Proof of the 
 expulsion, which ex vi termini implies force, is not material, as the 
 gist of the offence is the forcible detainer merely. Holding the pre- 
 mises from the prosecutor by force, however, must be proved: and 
 the same violence or terror which will make an entry forcible, will 
 also make a detainer forcible. 1 Hawk. o. 64, g. 30; 1 Russ. 311. 
 But merely refusing to go out of the house; 1 Hawk. c. 64, s. 30; or 
 a tenant at will denying possession to his lessor ; or a man keeping 
 out of his land, by force, a person claiming common upon it ; Com. 
 Dig. Fore. Det. (B. 2) ; is not a forcible holding within the meaning 
 of the statutes. See R. v. Oakley, i B. & Ad. 307; 2 L. J. (M. C.) 
 24: R. V. Wilson, \ A. & E. 627; 3 L. J. (Jf. G) 96: R. v. Wilson, 3 
 A. & E. 817; 4 L. J. {M. C.) 114. 
 
 Indictment for a Forcible Entry and Detainer at Common Law. 
 
 Middlesex, to wit: — The jurors for our lady the Queen upon their 
 oath present, that J. S., K. T. and L. W., together with divers other 
 
Challenge to Fight. 851 
 
 persons, to the number of six or more, to the jurors aforesaid un- 
 known, on the first day of June, in the year of our Lord , with 
 
 force and arras, to wit, with pistols, swords, sticks, staves, and other 
 offensive weapons, into a certain barn and a certain orchard, situate 
 and being in the parish of B., in the county of M., and then in the 
 possession of one J. N., unlawfully, violently, forcibly, injuriously, 
 and with a strong hand did enter; and the Said J. S., K. T. and L. W., 
 together with the said other evil-disposed persons, to the jurors afore- 
 said unknown, as aforesaid, then and there, with force and arms, to 
 wit, with pistols, swords, sticks, staves, and other offensive weapons, 
 unlawfully, violently, forcibly, injuriously and with a strong hand, 
 the said J. N. from the possession of the said barn and orchard did 
 expel, amove, and put out; and the said J. N. so as aforesaid ex- 
 pelled, amoved, and put out from the possession of the said bam and 
 orchard, then and there with force and arms, to wit, with pistols, 
 swords, sticks, staves, and other offensive weapons, unlawfully, vio- 
 lently, forcibly, injuriously, and with strong hand, did keep out, and 
 still do keep out ; and other wrongs to the said J. N. then and there 
 did ; to the great damage of the said J. N., and against the peace of 
 our lady the Queen, her crown and dignity. There is no doubt an 
 indictment will lie at common law for a forcible entry, although it is 
 generally brought on the acts of parliament. Per Wilraot, J., in B. v. 
 Bake, 3 Burr. 1731. 
 
 This is a misdemeamor at common law. 
 
 Euidenoe. 
 
 The evidence of the forcible entry, upon this indictment, must be 
 stronger than is required to support an indictment on the statutes ; 
 that is to say, there must be proof of such a force as constitutes a 
 public breach of the peace. iJ. v. Wilson, 8 T. R. 367. And see R. 
 V. Bake, 3 Burr. 1731. 
 
 It is not necessary to set forth or prove the particulars of the pro- 
 secutor's estate in the messuage, etc., because in this case there is no 
 restitution: stating that J. N. was possessed, and proving his pos- 
 session, will be sufficient. R.Y.Wilson, supra. For the same reason, 
 it does not seem to be necessary to prove the expulsion or detainer, 
 unless where the prosecutor has failed to prove the entry to have 
 been forcible. {See ante, p. 848.) 
 
 Sect. 4. 
 challenge to fight. 
 
 Indictment for sending a Challenge. 
 
 Kent, to wit: — The jurors for our lady the Queen upon their oath 
 present, that J. S., being a person of a turbulent and quarrelsome 
 temper and disposition, and contriving and intending not only to vex, 
 injure and disquiet one J. N., and do the said J. N. some grievous 
 bodily harm, but also to provoke, instigate, and excite the said J. Ni 
 to break the peace, and to fight a duel with and against him the said 
 J. S., on the first day of June, in the year of oiu: Lord ,' wick- 
 
852 Challenge to Fight. 
 
 ediy, wilfully, and maliciously did write, send, and deliver, and cause 
 and procure to be written, sent, and delivered unto him the said 
 J. N. a certain letter and paper writing, containing a challenge to 
 fight a duel with and against him the said J. S., and which said 
 letter and paper writing is as follows, that is to say [here set out the 
 letter, with such innuendoes as may he necessary'] : to the great damage, 
 scandal, and disgrace of the said J. N., in contempt of our lady the 
 Queen and her laws, and against the peace of our lady the Queen, her 
 crown and dignity. (2nd Count.) — And the jurors aforesaid, upon 
 their oath aforesaid, do further present, that the said J. S., contriving 
 and intending as aforesaid, afterwards, to wit, on the day and year 
 aforesaid, wickedly, wilfully, and maliciously did provoke, instigate, 
 excite and challenge the said J. N. to fight a duel with and against 
 him the said J. S. ; to the great damage, scandal, and disgrace of the 
 said J. N., in contempt of our lady the Queen and her laws, and 
 against the peace of our lady the Queen, her crown and dignity. 
 
 Fine or imprisonment, or both. {See the precedents, Cro. dr. Com. 
 102—104; 4 Went. 315; 6 Went. 385—461; and see B.y. Phillips, 
 6 East, 464.) From the above precedent am indictment may readily be 
 framed against the person who delivered the challenge. 
 
 Evidence. 
 
 Give the letter in evidence, and prove the handwriting. Prove 
 also the delivery of it to J. N. Where the letter containing the 
 challenge was put into the post-office in the county of Middlesex, to 
 be delivered to the prosecutor in another county. Lord Ellenborough 
 held, that the party might be indicted in Middlesex: for sending the 
 challenge is the offence ; whether it reach the person to whom it is 
 sent or not is immaterial. R. v. Williams, 2 Camp. 506. 
 
 Provocation, however great, is no excuse or justification on the 
 part of the defendant, R. v. Rice, 3 East, 581, however it may weigh 
 with the court in apportioning the punishment. 
 
 Indictment for provoking a man to send a Challenge. 
 
 Proceed as in the last precedent to the^, and then thus] : — wickedly, 
 wilfully, and maliciously did utter, pronounce, declare, and say to 
 and in the presence and hearing of the said J. N., these words fol- 
 lowing, that is to say: — "You are a scoundrel and a liar, and I shall 
 take care to let the world know that you are so;" with intent to in- 
 stigate, excite, and provoke the said J. N. to challenge him the said 
 J. S. to fight a duel with and against him the said J. N.; to the great 
 damage, etc., as in the last precedent. If there be any doubt as to the 
 words, lay them differently in different counts; and add a general count, 
 not setting out the words, but merely charging the defendant with hav- 
 ing used threats amd opprobrious language to the prosecutor, with intent, 
 etc. 
 
 Fine or imprisonment, or both. See R. v. Phillips, 6 East, 464. 
 
 Evidence. 
 Prove the words. {See ante, p. 205.) And give evidence of cir- 
 cumstances from which the jury may infer the defendant's intent, if 
 such intent do not sufficiently appear from the words proved. See 
 R. V. Phillips, 6 East, 470. 
 
Threatening Letter. 853 
 
 Sect. 5. 
 threatening letter. 
 
 Statutes. 
 
 24 <& 25 Vict. c. 97, s. 50 — Sending Letters threatening to hum or 
 destroy Houses, etc., etc.'] — Whosoever shall send, deliver, or utter, or 
 directly or indirectly cause to be received, knowing the contents 
 thereof, any letter or writing threatening to burn or destroy any 
 house, barn, or other building, or any rick or stack of grain, hay, or 
 straw, or other agricultural produce, or any grain, hay, or straw, or 
 other agricultural produce in or under any building, or any ship or 
 vessel, or to kill, maim, or wound any cattle, shall be guilty of felony, 
 and being convicted thereof shall be liable, at the discretion of the 
 court, to be kept in penal servitude for any term not exceeding ten 
 years and not less than three years [now five years, 27 S 28 Vict, 
 c. 47, s. 2, ante, p. 173], or to be imprisoned for any term not ex- 
 ceeding two years, with or without hard labour, and with or without 
 solitary confinement, and, if a male under the age of sixteen years, 
 with or without whipping. 
 
 24 d 25 Vict. o. 100, s. 16 — Sending Letters threatening to Murder.'] 
 — Whosoever shall maliciously send, deliver, or utter, or directly or 
 indirectly cause to be received, knowing the contents thereof, any 
 letter or writing threatening to kill or murder any person, shall be 
 guilty of felony, and being convicted thereof shall be liable, at the 
 discretion of the court, to be kept in penal servitude for any term 
 not exceeding ten years, and not less than three years [now five 
 years, 27 <§ 28 Vict. v. 47, s. 2, ante, p. 173], or to be imprisoned 
 for any term not exceeding two^ years, with or without hard labour, 
 and with or without solitary confinement, and, if a male under the 
 age of sixteen years, -with or without whipping. 
 
 Indictment. 
 Commencement as ante, p. 422] — feloniously and maliciously did 
 send (" send, deliver, or utter, or directly or indirectly cause to he re- 
 ceived''^) to one J. N. a certain letter (" letter or writing''^) directed to 
 the said J. N., by the name and description of Mr. J. N., threatening 
 to kill and murder the said J. N. (" any person''^) {or, " threatening 
 to burn and destroy a certain dwelling-house (' amy house, ham, or 
 other huilding, or any rick or stack of grain, hay, or straw, or other 
 agricultural produce, or any grain, hay, or straw, or other agricultural 
 produce in or wnder amy building, or amy ship or vesseV), the property 
 of the said J. N., or of one E.N."], \or " threatening to kill (or ' maim' 
 or ' wound ') a horse of and belongmg to him the said J. N."] , he the 
 said J. S. then well knowing the contents of the said letter, which 
 said letter is as follows, that is to say, \here set out the letter verha- 
 tim. R. V. Lloyd, 2 East, P. C. 1122 (ante, p. 55); hut see 14 & 15 
 Vict. c. 100, «. 7 {ante, p. 56);] against the form [as ante, p. 347]. 
 (2nrf Count.) — And the jurors aforesaid upon their oath aforesaid do 
 further present, that the said J. S., on the day and in the year afore- 
 said, feloniously and maliciously did utter a certain writing threaten- 
 ing to kill and murder [etc., as in the first count, substituting "writing^' 
 for " letter."] As to this second count, see the observations immediately 
 
854 Threatening Letter. 
 
 following the second count of the indictment, ante, p. 422. Where 
 are indictment charged the prisoner in three sexieral counts with three 
 felonies in sending three separate threatening letters, Byles, J., com- 
 pelled the prosecution to elect on which count they would proceed. R. v. 
 Ward, 10 Cox, 42. 
 
 Felony: penal servitude for not more than tern and not less than five 
 [27 & 28 Vict. c. 47, s. 2, ante, p. 173] years, or imprisonment not ex- 
 ceeding two years, with or without hard labour, ami with or without 
 solitary confinement (such confinement not exceeding one month at any 
 one. tmfie, nor three months in any one year, 24 <& 25 Vict. c. 97, s. 75, 
 and c. 100, «. 70, ante, pp. 607, 619), and, if a male under sixteen 
 years, withvr without whipping, 24 d; 25 Vict. c. 97, s. 50; c. 100, 
 s. 16. As to requiring the offender to enter into recognizances and find 
 sureties for keeping the peace, 24 <& 25 Vict. e. 97, s. 73, ante, p. 507; 
 c. 100, s. 11, ante, p. 619. 
 
 Evidence. 
 
 Prove that the defendant sent or delivered the letter to J. N., as 
 directed ante, p. 423. 
 
 The words in the acts before the 4 G. 4, c. 54, were " a letter with- 
 out a name, or with a fictitious name;" the words in that statute 
 were " any letter or writing, with or without a name or signature 
 subscribed thereto, or with a fictitious name or signature;" the words 
 of the statutes now in force (24 d 25 Vict. c. 97, s. 50, and c. 100, 
 s. 16), are " any letter or writing" only; the decisions on the former 
 acts are therefore inapplicable to the present. Sending a letter to 
 A. B. threatening to bum a house of which he was owner, but let by 
 him to and occupied by a tenant, was held not to be an ofience within 
 the repealed act 4 G. 4, c. 54, the words of which were " his or their 
 houses," etc. R. v. Burridge, 2M. & Rob. 296 ; sed quare; see R. v. 
 Grimwade, 1 Den. 30 ; 1 C. & K. 592. And now, the threat to burn 
 any house, barn, etc., etc., is sufficient to satisfy the statute 24 & 25 
 Vict. c. 97, s. 50. 
 
 A material variance between the letter set out and that produced 
 in evidence will be fatal, unless amended. {See ante, p. 205.) 
 
 Where the threat charged is to kill or murder, it is for the jury to 
 say whether the letter amounts to a threat to kill or murder. R. v. 
 Girdwood, 2 East, P. C. 1121; 1 Leach, 142: R. v. Boucher, iC.&P. 
 562 : R. v. Tyler, 1 Mood. C. C. 428. 
 
 Upon an indictment on the repealed stat. 9 G. 1, c. 22, the words 
 of which were, " to burn the dwelliug-house, outhouses," etc., where 
 the writer of the letter threatened to bwn the prosecutor's mill, and 
 to do all the injury he was able to his farms, and the prosecutor 
 proved that he had no mill at the time, but that he had farms, and 
 buildings upon them : the judges held clearly that, as to the mill, the 
 letter was not within the statute ; and the majority of the judges 
 held that, even as to the farms, as the letter did not necessarily 
 imply that the injury to them was to be eflfected by fire, it was not 
 within the act. R.v.Jepson, 2 East, P. C. 1115. Neither would this 
 threat as to the farms satisfy the term " destroy" in the present 
 statute. 
 
 As to the offence of threatening to publish a libel, with intent to 
 extort money, etc., see 6 <£ 7 Vict. c. 96, s. 3, post, p. 865; and the 
 indictment, j308«, ^. 861. 
 
 As to the offence of sending letters threatening to accuse of crime, 
 
Libel. 855 
 
 see 24 <& 25 Vict. c. 96, s. 46, ante, p. 411, and the indictment, ante, p. 
 426. As to the offence of sending letters demanding, with menaces, 
 any property, see 24 & 25 Vict. c. 96, s. 44, ante, p. 410, and the in- 
 dictment, ante, p. 422. 
 
 Sect. 6. 
 
 LIEEL. 
 
 Statute. 
 
 6 (6 7 Fici. c. 96, s. 3 —Publication or Suppression of Libel with 
 Intent to extort Money, etc.] — Enacts, that if any person shall publish, 
 or threaten to publish, any libel upon any other person, or shall 
 directly or indirectly threaten to print or publish, or shall directly or 
 indirectly propose to abstain from printmg or publishing, or shall 
 directly or indirectly offer to prevent the printing or publishing of 
 any matter or thing touching any other person, with intent to extort 
 any money or security for money, or any valuable thing, from such 
 or 'any other person, or with intent to induce any person to confer or 
 procure for any person any appointment or office of profit or trust, 
 every such offender, on being convicted thereof, shall be liable to be 
 imprisoned, with or without hard labour, in the common gaol or house 
 of con-ection, for any term not exceeding three years : Provided 
 always, that nothing herein contained shall in any manner alter or 
 affect the law now in force in respect of the sending or delivering of 
 threatening letters or writings. 
 
 Sect. 4 — Punishment for knowingly publishing a false defamatory 
 Libel] — Enacts, that if any person shall maliciously publish any de- 
 famatory libel, knowing the same to be false, every such person, 
 being convicted thereof, shall be liable to be imprisoned in the 
 common gaol or house of correction for any term not exceeding two 
 years, and to pay such fine as the court shall award. 
 
 Sect. 5 — Punishment for defamatory Libel.'] — Enacts, that if any 
 person shall maliciously publish any defamatory libel, every such 
 person, being convicted thereof, shall be liable to fine or imprison- 
 ment, or both, as the court may award, such imprisonment not to 
 exceed the term of one year. 
 
 Sect. 6 — Proceedings on Trial of Indictment or Information.] — 
 Enacts, that on the trial of any indictment or information for a, de- 
 famatory libel, the defendant having pleaded such plea as herein- 
 after mentioned, the truth of the matters charged may be inquired 
 into, but shall not amount to a defence, unless it was for the public 
 benefit that the said matters charged should be published ; and that, 
 to entitle the defendant to give evidence of the truth of such matters 
 charged as a defence to such indictment or information, it shall be 
 necessary for the defendant, in pleading to the said indictment or in- 
 formation, to allege the truth of the said matters charged, in the 
 manner now required in pleading a justification to an action for defa- 
 mation, and further to allege that it was for the public benefit that 
 the said matters charged should be published, and the particular fact 
 
856 Libel. 
 
 or facts by reason whereof it was for the public benefit that the said 
 matters charged should be published ; to which plea the prosecutor 
 shall be at liberty to reply generally, denying the whole thereof; and 
 that if after such plea the defendant shall be convicted on such in- 
 dictment or information, it shall be competent to the court, in pro- 
 nouncing sentence, to consider whether the guilt of the defendant is 
 aggravated or mitigated by the said plea, and by the evidence given 
 to prove or to disprove the same : Provided always, that the truth of 
 the matter charged in the alleged libel complained of by such indict- 
 ment or information shall in no case be inquired into without such 
 plea or justification : Provided also, that in addition to such plea it 
 shall be competent to the defendant also to plead a plea of not 
 guilty : Provided also, that nothing in this act contained shall take 
 away or prejudice any defence under the plea of not guilty, which it 
 is now competent to the defendant to make under such plea to any 
 action or indictment, or information for defamatory words or libel. 
 
 Sect. 7 — Evidence to rebut prima facie case of Publication by Agent.l 
 — Enacts, that whensoever, upon the trial of any indictment or infor- 
 mation for the publication of a libel, under the plea of not guilty, 
 evidence shall have been given which shall establish a presumptive 
 case of publication against the defendant by the act of any other 
 person by his authority, it shall be competent to such defendant to 
 prove that such publication was made without his authority, consent, 
 or knowledge, and that the said publication did not arise firom want 
 of due care or caution on his part. 
 
 Sect. 8 — Costs.l — Enacts, that in the case of any indictment or in- 
 formation by a private prosecutor for the publication of any defama- 
 tory libel, if judgment shall be given for the defendant, he shall be 
 entitled to recover from the prosecutor the costs sustained by the 
 said defendant by reason of such indictment or information ; and that 
 upon a special plea of justification to such indictment or information, 
 if the issue be found for the prosecutor, he shall be entitled to recover 
 from the defendant the costs sustained by the prosecutor by reason of 
 such plea ; such costs so to be recovered by the defendant or prose- 
 cutor respectively to be taxed by the proper officer of the court be- 
 fore which the said indictment or information is tried. 
 
 Indictment for a false defamatory Libel. 
 Middlesex, to wit : — The jm-ors for our lady the Queen upon their 
 oath present, that J. S., contriving, and unlawfully, wickedly, and 
 maliciously intending to injure, vilify, and prejudice one J. N., and to 
 deprive him of his good name, fame, credit and reputation, and to 
 bring him into public contempt, scandal, infamy and disgrace, on the 
 
 first day of June, in the year of our Lord , unlawfully, wickedly, 
 
 and maliciously did write and publish, and cause and procure to be 
 written and published, a false, scandalous, malicious and defamatory 
 libel, in the form of a letter directed to the said J. N. [or, if the pub- 
 lication were in any other manner, omit the words "in the form," etc.], 
 containing divers false, scandalous, malicious and defamatory matters 
 and things of and concerning the said J. N., and of and concerning 
 [etc., here insert such of the subjects of the libel as it may be necessary 
 to refer to by the innuendoes, in setting out the libel (see ante, p. 769)], 
 according to the tenor and effect following, tiiat is to say [here set 
 
Lihd. 857 
 
 out the libel, together with such innuendoes as may be necessary to 
 render it intelligible {see ante, p. 769)] ; he the said J. S. then well 
 knowing the said defamatory libel to be false : to the great damage, 
 scandal and disgrace of the said J. N., to the evil example of all 
 others in the like case offending, and against the peace of our lady 
 the Queen, her crown and dignity. 
 
 Imprisonment not exceeding two years, and fine. & S 7 Vict. c. 96, 
 s. 4. If the prosecutor fail to prove the scienter, the defendant may 
 nevertheless be convicted of publishing a defamatory libel, cmd punished 
 by fine, or imprisonment not exceeding one year, or both. Id.s.5. The 
 defendant .may plead, in addition to the plea of not guilty, that the 
 matters charged were true, and that it was for the public benefit that 
 they should be published, setting forth the particular facts by reason of 
 which the publication was for the public benefit (see the plea, post, p. 
 860) ; and if, after such plea, the defendant be convicted, the court may 
 take the plea, and evidence in support of it, into consideration, in aggra- 
 vation, or in mitigation. Id. s. 6. In the case of an indictment or in- 
 formation for libel by a private prosecutor, the defendant is entitled to 
 costs if judgment be given for him ; and if the issue on a special plea 
 of justification be proved for the prosecutor, he is entitled to the costs 
 sustained by him by reason of such plea. Id. s. 8. On a criminal 
 information for a libel, the defendant, having recovered a verdict and 
 judgment, was held entitled to costs under this section, though the only 
 plea on the record was not guilty, and though the judge had certified, 
 under 4 <6 5 W. <& M. c. 18, s. 2, that there was reasonable cause for 
 exhibiting the information. S. v. Latimer, 15 Q. B. 1077. The Court 
 of Queen^s Bench has no jurisdiction to review the taxation, by the clerk 
 of assize, of the costs of an indictment for libel tried on the crovm-side 
 at the assizes. B. v. Newhouse, 22 L. J. {Q. B.) 127 ; 1 Bail Court C. 
 129. The proprietor of a newspaper is answerable criminally as well 
 as civilly for the acts of his servants in the publication of a libel, although 
 it can be shown, that such publication was without the privity of the 
 proprietor. B. v. Walter, 3 Esp. 21 ; hut see now 6 (& 1 Vict. c. 96, s. 7, 
 ante p. 856. 
 
 The offence of libel is not triable at quarter sessions. 5<& 6 Vict. c. 38, 
 s. 1 {ante, p. 104). 
 
 Before we consider the evidence in this case, it may not be unne- 
 cessary to notice, shortly, the law relative to libels against private 
 individuals ; we have already noticed seditious libels {ante, p. 766), 
 blasphemous libels {ante, p. 776), and libels reflecting on the admi- 
 nistration of justice (ante, p. 838). 
 
 A libel, in the sense under which we are now to consider it, is a 
 malicious defamation of any person made public either by printing, 
 writing, signs, or pictures, in order to provoke him to wrath, or to 
 expose him to public hatred, contempt, or ridicule. 
 
 In considering what writings are libellous, it may be necessary to 
 premise that, wherever an action will lie for a libel, without laying 
 special damage, an indictment will also lie. Also, wherever an 
 action will lie for verbal slander, without laying special damage, an 
 indictment will lie for the same words, if reduced to writing and 
 published. But the converse of this latter proposition will not hold 
 good ; for an action or indictment may be maintained for words 
 written, for which an action could not be maintained, if they were 
 merely spoken. Thorley v. Lord Kelly, 4 Taunt. 355. As, for in- 
 stance, if a man write or print, and publish, of another, that he is a 
 swindler, J'' Anson v. Stuart, 1 T. R. 748, or villain. Bell v. Stone, 1 
 
858 Libel. 
 
 Bos. & P. 331, it is a libel, and punishable as such ; although, if tliis 
 were merely spoken, it would not be actionable without special 
 damage. 2 H. Bl. 531. But no indictment will lie for mere words, 
 not reduced into writing, 2 Salk. 417 : B. v. Langley, 6 Mod. 125, 
 unless they be seditious (see ante, p. Idl), blasphemous (ante, p. lib), 
 grossly immoral, or uttered to a magistrate in the execution of his 
 office (ante,, p. 839), or uttered as a challenge to fight a duel, or with 
 an intention to provoke the other party to send a challenge (fmte, p. 
 
 1. An action will lie (without laying special damage) for all words 
 spoken of another which impute to him the commission of a crime 
 punishable by law, such as high tl-eason, murder, or other felony 
 (whether by statute or at common law), forgery, perjury, suborna- 
 tion of perjury, or other misdemeanor ; or even an offence punishable 
 merely by the custom of some particular place, if the words be uttered 
 there. Com. Dig., Action on the Case for Defamation (D. 1-10), (F. 
 1-7, 12-18). And see 3 Wils. 186 ; 2 W. Bl. 760, 959; Cowp. 275; 
 2 Wils. 300; 6 T. R. 694; 9 East, 93; 5 Id. 463; 2 N. R. 335; 4 
 Price, 46; 7 Taunt. 431. But words imputing to a man an act, 
 which (liowever immoral) is not punishable criminally by law, cannot 
 be made the subject of an action, without laying special damage. 
 Com. Dig., ubi supra (F. 20) ; 3 Wils. 187 ; 2 W. Bl. 750; 5 Burr. 
 2698 ; 6 T. iJ. 691 ; 2 A. d E. 1 ; b M. & W. 249. 
 
 2. An action will lie (without laying special damage) for all words 
 spoken of another, which may have the effect of excluding him from 
 society; as, for instance, to charge him with having an infections 
 disease, such as leprosy, the venereal disease, the itch, or the like. 
 Com. Dig., Action on the Case for Defamation (D. 28, 29), (F. 11, 
 19) ; 2 Burr. 930. But charging him with having had a contagions 
 disease is not actionable ; for, as this relates to a time past, it is no 
 reason why his society should be avoided at present. 2 T. R. 473. 
 
 3. An action will lie (without laying special damage) for writing 
 and publishing anything of a man which renders him ridiculous, 2 
 Wils. 403 ; 1 W. Bl. 294, or contemptible. Lord Churchill v. Hunt, 
 2 B. (& Aid. 685 ; 4 Taunt. 355 ; Macgregor v. Thwaites, i D. <& B. 
 695 ; 3 5. (6 C. 24 : Parmiter v. Coupland, 6 M. d; W. 105. It is not 
 libellous to publish a placard merely stating that a man owes money; 
 R. V. Coghlan, 4, F. & F. 316 ; if, however, the placard asserted or 
 implied his inability to pay it, it would seem that it would be libel- 
 lous, lb. 
 
 4. An action will lie (without laying special damage) for words of 
 a man, which may impair or hurt his trade or livelihood ; as, for in- 
 stance, to call a tradesman a bankrupt, a physician a quack, or a 
 lawyer a knave, or the like. Finch, L. 186. See the seoeral cases in 
 Com. Dig., ubi supra (D. 22-27), (F. 9, 10) ; Fitzg. 121 ; 2 W. Bl. 
 750 ; 3 Wils. 59, 186 ; 2 Str. 898 ; 2 Stark. N. P. Rep. 245, 297 ; 4 
 Esp. 191 ; 3 Bos. <& P. 372; 3 Bing. 184 ; b B. d C. 150; 1C.& J. 
 143; 2 A.&E.2; 5 M. S W. 249. 
 
 5. Writings vilifying the characters of persons deceased are libels, 
 and may be made the subject of an indictment; 5 Co. 125 a; but the 
 indictment in such a case must charge the libel to have been pub- 
 lished with a design to bring contempt on the family of the deceased, 
 or to stir up the hatred of the Queen's subjects against them, or to 
 excite to a breach of the peace, R. v. Topham, 4 T. R. 126, otherwise 
 it cannot be maintained. 
 
 6. Writings which tend to degrade, revile, and defame persons in 
 
Libel. 859 
 
 ConsideralDle situations of power and dignity in foreign countries, 
 may be proceeded upon here as libels, and the writers, publishers, 
 etc., punished; particularly when such writings have a tendency to 
 interrupt the pacific relations between the two countries. Per Lord 
 Ellenborough, in R. v. Peltier, Holt on Libel, 78, etc. In the case 
 just cited, an information was filed against Peltier for a libel on 
 Napoleon Buonaparte, then first consul of the French Republic ; and 
 the defendant was convicted. See also R. v. D'Eon, 1 W. Bl. 517. 
 
 7. And not only are libels upon individuals punishable by indict- 
 ment, but writings also reflecting upon bodies of men, without men- 
 tioning any one in particular, are likewise punishable as libels, if 
 they tend to stir up the hatred of the Queen's subjects against the 
 members of the body generally, or to excite the individuals com- 
 posing the body to a breach of the peace. R. v. Osborn, 1 Bamard- 
 iston, 138, 166. 
 
 Having now treated of the matter of a libel, it remains to say a 
 few words upon the manner or form in which it is expressed. It is 
 immaterial whether the libel impute crime, etc., to the prosecutor, in 
 a direct manner, or indirectly, by such hints or modes of expression 
 as are likely to convey the intended meaning to the person to whom 
 the libel was published ; taking the words in the same sense in which 
 the rest of mankind would ordinarily understand them, it is for the 
 jury to say whether, in their minds, they convey the idea imputed. 
 2 T. R. 206, per Buller, J. Therefore, where one man said of another 
 that "his character was infamous; that delicacy forbade him from 
 bringing a direct charge, but it was a male child who complained to 
 him," such words were understood to mean a charge of unnatural 
 practices, and to be sufficiently certain in themselves, without the 
 aid of an innuendo. Woolnoth v. Meadows, 5 East, 463. So, if a man 
 were to write or say of J. N., " There is a vast difference between 
 my character and his ; I never robbed my master," or the like : it 
 would be the same as if he had directly charged J. N. with having 
 robbed his master. See 2 Lev. 150; 1 Vent. 276; Com. Dig., Action 
 on the Case for Defamation (^E. 8). And the same where the impu- 
 tation is conveyed obliquely, Id. (E. 1), or indirectly. Id. (E. 7), or 
 by way of question, /d (-E.2), conjecture. Id. {E. 3), or exclamation. 
 Id. (E. 6), or by irony, 1 Hawh. c. 73, s. 4, or the like. So, a defa- 
 matory writing, expressing one or two letters only of a name, is as 
 much a libel, and punishable as such, as if it expressed the name in 
 full, if it appear evident upon the face of the libel, from the context, 
 etc., what name was meant, 1 Hawk. c. 37, s. 5, or if it appear from 
 the evidence of persons acquainted with the parties, what person was 
 meant by such initials or letters. 
 
 As to the form of the indictment for libel generally, see ante, p. 768 
 et seq. 
 
 Evidence. 
 
 Prove the offence in the same manner as directed ante, p. 770. 
 Evidence of the publication by the defendant of other libels, pre- 
 viously or subsequently to the publication of the libel charged in the 
 indictment, is admissible to prove actual malice or deliberate publi- 
 cation. Pearson v. Lemaitre, 5 M. & Gr. 700 ; 6 Scott. N. R. 607 : 
 Macleod v. Wakley, 3 C. d P. 311: Plunkett v. Cobhett,' 5 Esp. 136 : 
 Hemmings v. Gasson, E.B. & E. 346; 27 L. J. (Q. B.) 252: Darby v. 
 Ouseley, IH.&N.l. It seems, however, that evidence of subsequent 
 libels will not be admitted, unless they distinctly refer to the libel set 
 
860 Lihel. 
 
 out in the indictment, or at least refer to the same subject-matter. 
 Finnerty y. Tipper, 2 Camp. 72. If the libel reflect on the character 
 of a public officer or professional man, as such, it is not in general 
 necessary to prove his appointment to the office, or admission to the 
 profession, because that is almost in all cases either directly or im- 
 pliedly admitted by the libel itself; see 4 T. R. 366 \\N.R. 196, 208: 
 Jones V. Stevens, 11 Price, 235: Pearce v. Whale, bB.&C. 38; and if 
 it be not, proof that he was in the habit of acting as such officer or 
 professional man, would in that case be sufficient; but if the effect of 
 the libel be to charge the prosecutor with having acted as such 
 officer or professional man, without a legal appointment, as, for in- 
 stance, if a man libel a physician, by calling him a quack, it seems 
 necessary to prove the appointment or admission. See Smith v. 
 Tayhr, 1 N. R. 196; 3 Bing. 432; 11 Moore, 308; 4. M. & Sel. 548; 
 \A.&E. 695. 
 
 In addition to what has already been mentioned, as to evidence on 
 the part of the defendant {ante, p. Ill), he may, in the case of a libel 
 against an individual, prove that the alleged publication of the matter 
 complained of as libellous was merely a communication privileged 
 by the occasion on which it was made, and without malice; as where 
 a master gives what he believes to be a correct character of a ser- 
 vant; Edmonson v. Stevenson, Bull. N. P. 8: Hargrave v. Le Breton, 
 4 Burr. 2425 : Weatherstone v. Hawkins, 1 T. R. 110; 3 Bos. <b P. 
 687; 1 C, M. & R. 181: Taylor v. Hawkins, 16 Q. B. 308; 18 C. B. 
 544; where a neighbour gives what he conceives to be a correct 
 character of the credit and solvency of a tradesman ; Bull. N. P. 8; 
 or where a client makes a confidential representation injurious to an 
 attorney's professional character in the management of certain con- 
 cerns, to other persons who are jointly interested in them with the 
 client, 1 Camp. 227, or the like. Also, if a writing, although inju- 
 rious to another's character, be published, not maliciously or with 
 intent to injure his character, but hoTiafide for the purpose of inves- 
 tigating a fact in which the person making it is interested, or, as it 
 seems, in which the person to whom it is made is interested, or in 
 the performance of a duty, it is not libellous. See Delany v. Jones, 
 4 Esp. 191 : Brown v. Croom, 2 Starh. N. P. C. 297: R. v. Bayley, 
 Andr.aQ: Andersons. Hamilton, 2 Brod. <& B. 156, n.; Wyattv. 
 Gore, Holt, N. P. C. 299 : Fairman v. Ives, 1 D. S R. 252; 5 B. & 
 Aid. 642: Harrison v. Bush, b E. & B. 344: Coxhead v. Richards, 2 
 C. B. 569: Beatson v. Skene, 5 H. & N. 838: Kelly v. Tinling, L. R., 
 1 Q. B. 699; 35 L. J. (Q. B.) 231. For other instances of privileged 
 publications, see Hunter v. Sharpe, i F.dF. 983: Strauss v. Francis, 
 Id. 1107: R. V. Vehy, Id. 1117. 
 
 The defendant may allege and prove the truth of the libel, in the 
 manner and subject to the conditions mentioned in the 6 (fe 7 Vict, 
 c. 96, s. 6 (ante, p. 855). 
 
 The following may be the form of the special plea: — And for a 
 further plea in this behalf, the said J. S. saith that our lady the Queen 
 ought not further to prosecute the said indictment against him, because 
 he saith that it is true that (etc., etc., alleging the truth of every 
 libellous part of the publication): amd the said J. S. further saith, 
 that before and at the time of the publication in the said indictment 
 mentioned [state here the facts which rendered the publication of 
 benefit to the public]; by reason whereof it was for the public benefit 
 that the said matters so charged in the said indictment should be pub- 
 lished. And this, etc. [concluding as ante, p. 129]. This plea may 
 
Lihel. 861 
 
 be pleaded with the general issue (ante, p. 138); 6 (6 7 Vict. c. 96, s. 6 
 (ante, p. 855). Evidence that the identical charges contained in a 
 libel had, before the time of composing and publishing the libel 
 which is the subject of, the indictment, appeared in another publica- 
 tion which was brought to the prosecutor's knowledge, and against 
 the publisher of which he took no legal proceedings, is not admis- 
 sible under this section. R. v. Newman, Dears. 85 ; X E. & B. 268. 
 Where the plea contains several charges, and the defendant fails in 
 proof of any of the matters alleged in it, the jury must of necessity 
 find a verdict for the crown; and the court, in giving judgment, is 
 bound to consider whether the guilt of the defendant is aggravated 
 or mitigated by the plea, and by the evidence given to prove or dis- 
 prove it, and to form its own conclusion on the whole case. Id.; 1 
 E. (fc B. 558. 
 
 The replication may be as follows :_ — And as to the plea of the said 
 3. S., hy him secondly above pleaded, the said A. B. [the clerk of 
 assize or clerk of the peace] saith that hy reason of anything in the 
 said second plea alleged, our said lady the Queen ought not to be pre- 
 cluded from further prosecuting the said indictment against the said 
 J. S., because he saith, that he denies the said several matters in the 
 said second plea alleged, and saith that the same are not, nor are nor 
 is amy or either of them, true. And this he the said A. B. prays may 
 be inquired of by the country, etc. And the said 3. S. doth the like. 
 Therefore, etc. 
 
 Indictment for threatening to publish a Libel, etc., vnth Intent to 
 extort Money, etc. 
 
 Commencement as ante, p. 313] — unlawfully did threaten one J. N. 
 to publish a certain libel of and concerning him the said J. N. ['^ if 
 any person shall publish, or threaten to publish, any libel upon any 
 other person, or shall directly or indirectly threaten to print or publish, 
 or shall directly or indirectly propose to abstain from printing or pub- 
 lishing, or shall directly or indirectly offer to prevent the printing or 
 publishing of any matter or thing touching any other person"^, with 
 intent thereby then to extort money from the said J. N. [" with in- 
 tent to extort any money or security for money, or any valuable thing, 
 from such or any other person, or with intent to induce any person to 
 confer or procure for any person any appointment or office of profit or 
 trust"^ ; against the form [^as ante, p. 347]. If it be doubtful whether 
 the matter threatened to be published be libellous, add a count charging 
 that the defendant " did propose to the said J. N. to abstain from 
 printing and publishing a certain matter and thing touching the said 
 J. N. [or one E. F.], with intent," etc. 
 
 Misdemeanor: imprisonment, with or without hard labour, not ex- 
 ' three years. 6 (& 7 Vict. c. 96, e. 3. 
 
 Evidence. 
 
 Prove the threat by the defendant to publish libellous or other 
 matter concerning the prosecutor. Or, if the indictment be for pro- 
 posing to the prosecutor to abstain from publishing matter concern- 
 ing him, prove the proposal, and the nature of the matter proposed 
 to be suppressed. Prove the intent, as directed ante, p. 208. The 
 intent to extort money may be implied from the circumstances, and 
 does not require an express demand of money. B. v. Coghlan, 4 F. 
 
862 LiM. 
 
 <& F. 316. But, if it appears that the object is to compel the delivery 
 of accounts of monies honestly believed to be due and owing, there 
 is no evidence of the intent to extort money. lb. An intent to ex- 
 tort hank-notea may be given in evidence under this indictment. 
 14 & 15 Vict. c. 100, s. 18 {ante, p. 69). 
 
 Indictment for a Libel on an Attorney. 
 
 Middlesex, to wit ; — The jurors for our lady the Queen upon their 
 oath present, that J. N., gentleman, at the time of publishing the 
 false, scandalous, malicious, and defamatory libel hereafter mentioned, 
 was, and long before and from thence hitherto hath been, and still 
 is, one of the attorneys of the court of our lady the Queen before the 
 Queen herself, and in the offioe, practice, and business of an attorney 
 hath been, during all that time, retained and employed by divers 
 subjects of this realm, to prosecute and defend for them, as their 
 attorney, agent, and solicitor, divers suits and businesses in the said 
 court, and in other her Majesty's courts at Westminster and else- 
 where, and also to do and negotiate other affairs and business as such 
 attorney; and the said J. N., during all that time, hath acted in the 
 most fair and honom-able manner in the exercise of his said profes- 
 sion. And that also, before the publishing of the said false, scanda- 
 lous, malicious, and defamatory libel hereinafter mentioned, to wit, 
 
 on the first day of March, in the year of our Lord , the said J. N. 
 
 was, in his business and profession of an attorney, employed and 
 retained by one A. C. to commence and prosecute a certain suit and 
 action at law upon the behalf of the said A. C. against one J. S., for 
 the recovery of a certain sum of money then and long before due 
 and owing to the said A. C. from and by the said J. S., and then re- 
 maining unpaid ; and the said J. N., in pursuance of the instructions 
 he then received from the said A. C. in that behalf, and of his retainer 
 as aforesaid, did then commence and prosecute the said action against 
 the said J. S., as in duty he was bound to do ; but the said J. N., in 
 the prosecution of the said action, so far from acting with any unne- 
 cessary severity towards the said J. S., on the contraiy thereof, acted 
 towards him the said J. S. in as lenient a manner as was consistent 
 with his duty as attorney to the said A. C. as aforesaid. And the 
 jurors aforesaid, upon their oath aforesaid, do further present, that 
 the said J. S., well knowing the premises, but contriving, and 
 wickedly, maliciously, and unlawfully intending to aggrieve and 
 vilify the said J. N., and to injure him in his good name, fame, and 
 credit, and to bring him into public scandal, infamy, and disgrace, 
 with and amongst all his clients and neighbours, and other good and 
 worthy subjects of this kingdom, and also to injiu-e the said J. N. in 
 his said business and profession of an attorney, and to cause him to 
 be esteemed and taken to be a negligent and corrupt practiser in 
 his said profession, and to be a person not fit to be entrusted and 
 employed therein, afterwards, to wit, on the first day of June, in the 
 year last aforesaid, falsely, wickedly, and maliciously did write and 
 publish, and cause and procure to be written and published, in the 
 form of a letter directed to the said A. C, a certain false, wicked, 
 malicious, and scandalous libel, of and concerning the said J. N., and 
 of and concerning his conduct in his business and profession of 
 attorney, and of and concerning the said action so commenced and 
 prosecuted against the said J. S. by the said J. N., for and as the 
 
Lihel. 863 
 
 attorney of the said A. C. as aforesaid, and of and concerning the 
 conduct of the said J. N. as attorney in the said action, according to 
 the tenor and effect following, that is to say [here set out the libel, 
 with such innuendoes as may be necessary {see ante, p. 769)] ; to tlie 
 great scandal, infamy, and disgrace of the said J. N., to the evil ex 
 ample of all others in the like case offending, and against the peace 
 of our lady the Queen, her crown and dignity. 
 As to the evidence, see ante, pp. 770, 772. 
 
 Indictment for hamging a man in Effigy. 
 Commencement as ante, p. 856] — unlawfully, wickedly and mali- 
 ciously did make, and cause and procure to be made, a certain gibbet 
 and gallows, and also a certain effigy or figure intended to repre- 
 sent the said J. N.; and then unlawfully, wickedly, and maliciously 
 did erect, set up, and fix, and cause and procure to be erected, set up 
 and fixed, the said gibbet and gallows, in a certain yard and place 
 near unto a certain common highway called , and near to a cer- 
 tain ferry called " The Horse Ferry," where the said J. N. was used 
 and accustomed to ply in the way of his trade and business of a 
 waterman; and then unlawfully, wickedly and maliciously did hang 
 up and suspend, and cause and procure to be hung up and suspended, 
 the said effigy and figure to and upon the said gibbet and gallows, 
 with the name of the said J. N. inscribed on a piece of wood and 
 affixed to the said effigy and figure, together with divers scandalbus 
 inscriptions and devices affixed upon and about the same, reflecting 
 on the character of the said J. N.; and did then keep and continue, 
 and cause and procure to be kept and continued, the said gibbet and 
 gallows, so erected and set up as aforesaid, with the said effigy and 
 figure hung up and suspended to and from the same as aforesaid, to- 
 gether with the several inscriptions and devices aforesaid, so affixed 
 as aforesaid, for a long space of time, to wit, for the space of four 
 days then next following, and during all that time unlawfully, 
 wickedly, and maliciously did then publish and expose the said 
 gibbet and gallows, with the said effigy and figure thereon, to the 
 sight and view of divers good and worthy subjects of our said lady 
 the Queen, passing and repassing in and along the highway afore- 
 said; to the great scandal, infamy, and disgrace of the said J. N., to 
 the evil example of all others in the like case offending, and against 
 the peace of our lady the Queen, her crown and dignity. 
 
 Prove the hanging in effigy, as described in the indictment; and 
 prove that the figure was intended to represent the prosecutor. Give 
 also, if necessary, evidence of circumstances from which the jury 
 may presume malice on the part of the defendant. (See ante, p. 
 235.) 
 
( 864 ) 
 
 CHAPTER IV. 
 
 OFFENCES AGAINST PUBLIC TRADE. 
 
 Sect. 1. Smuggling, p. 864. 
 
 2. Offences against the Bankrupt Laws, p. 870. 
 
 3. Counterfeiting Trade Marhs, p. 878. 
 
 Sect. 1. 
 smuggling. 
 
 MAKING SIGNALS TO SMUGGLING VESSELS. 
 
 Statute. 
 16 & 17 Vict. c. 107, s. ^Qi.— Venue.]— Ante, p. 689. 
 
 Sect. 303 — Limitation of Prosecution.] — Ante, p. 689. 
 
 Sect. 2ii— Making iSi^mafe.]— Enacts, that no person shall, after 
 sunset and before sunrise between the twenty-first day of September 
 and the first day of April, or after the hour of eight in the evening 
 and before the hour of six in the morning at any other time in the 
 year, make, aid, or assist in making any signal, in or on board or 
 from any ship or boat, or on or from any part of the coast or shore of 
 the United Kingdom, or within six miles of any part of such coast or 
 shore, for the purpose of giving any notice to any person on board 
 any smuggling ship or boat, whether any person so on board of such 
 ship or boat be or be not within distance to notice any such signal; 
 and if any person contrary to this act shall make or cause to be 
 made, or aid or assist in making, any such signal, such person so 
 ofiending shall be guilty of a misdemeanor; and any person may 
 stop, arrest, and detain the person so offending, and convey him 
 befoi-e any justice, who, if he see cause, shall commit the offender to 
 the next county gaol, there to remain until delivered by due course 
 of law; and it shall not be necessary to prove on any indictment or 
 information in such case that any ship or boat was actually on the 
 coast; and the offender being duly convicted, shall, by order of the 
 court before whom he shall be convicted, either forfeit and pay the 
 penalty or forfeiture of one hundred pounds, or, at the discretion of 
 such court, be sentenced or committed to the common gaol or house 
 of correction, thei*e to be kept to hard labour for any term not ex- 
 ceeding one year. 
 
 Sect. 245 — Onus of Proof] — Enacts, that if any person be charged 
 with or indicted for having made or caused to be made, or for aiding 
 
Smuggling. 865 
 
 or assisting in making, any sucli signal as aforesaid, the burden of 
 proof that such signal, so charged as having been made with intent 
 and for the purpose of giving such notice as aforesaid, was not made 
 with such intent and for such purpose, shall be upon the defendant, 
 against whom such charge is made or such indictment is found. 
 
 Indictment. 
 
 Kent, to wit: — The jurors for our lady the Queen upon their oath 
 present, that' J. S., on the first day of November, in the year of our 
 
 Lord , after sunset of the same day and before sunrise on the 
 
 day next following, to wit, at the hour of ten in the night of the same 
 day, unlawfully did make, and did aid and assist in making, and was 
 unlawfully present for the purpose of aiding and assisting in making, 
 a certain light (" any light, fire, flash or hlaze, or any signal by smoke, 
 or by any rochet, fireworks, flags, firing of any gvn, or other fire-arms, 
 or any other contrivance^ or device, or amy other signal"') on a certain 
 part of the sea-shore, situate in the parish of P., in the county of K. 
 (" in or on board or from amy vessel or boat, or on or from, any part of 
 the coast or shore of the United Kingdom, or within six miles of any 
 part of such coast or shore"), for the purpose of making and giving a 
 signal to some person or persons to the jurors aforesaid imknown, on 
 board a certain smuggling ship [or boat] then being; against the 
 form [as ante, p. 347]. As to the venue, see ante, p. 689. 
 
 Misdemeanor: £100 fine, or imprisonment amd hard labour in the 
 common gaol or house of correction, for any term not exceeding one 
 year. 16 <£ 17 Vict. c. 107, s. 244. The quarter sessions have cogni- 
 zance of this offence. R. v. Cock, i M. d; Sel. 71. 
 
 Evidence. 
 
 All the prosecutor has to prove is, that the defendant made a 
 signal by lighting a fire or otherwise, or was present aiding and as- 
 sisting in so doing, on the sea-shore, etc., as stated in the indict- 
 ment. It is not necessary for him to prove that any smuggling 
 vessel was in fact within sight or actually on the coast at the time; 
 16 (& 17 Vict. c. 107, s. 244; and it is for the defendant to prove (if 
 he can) that the fire, etc., was not lighted with the intent charged in 
 the indictment. Id. s. 245. The offence must be committed after 
 sunset and before sunrise, between 21st September and 1st April, 
 and after eight in the evening, and before six in the morning in 
 any other part of the year. Id. s. 244. See B. v. Brown, M. & M.. 
 163. 
 
 The indictment for this and all other offences against this statute 
 must be exhibited within three years next after the date of the offence 
 committed. 16 & 17 Vict. c. 107, s. 303. See R. v. Thompson, 16 
 Q. B. 832; 20 L. J. {M. C.) 183. 
 
 BEING ARMED AND ASSEMBLED FOR THE PURPOSE OF ASSISTING IN 
 RUNNING UNCUSTOMED GOODS, ETC. 
 
 Statutes. 
 16 (& 17 Vict. c. 107, a. 248.]— Enacts, that if any persons, to the 
 number of three or more, armed with fire-arms or other offensive 
 w. P P 
 
866 Smuggling. 
 
 ■weapons, shall, -within the United Kingdom, or within the limits of 
 any port, harbour or creek thereof, be assembled in order to be aid- 
 ing and assisting in the illegal landing, running or carrying away of 
 any prohibited goods, or any goods liable to any duties which have 
 not been paid or secured, or in rescuing or taking away any sach 
 goods as aforesaid after seizure, from 'the officer of the customs or 
 other officer authorized to seize the same, or from any person or per- 
 sons employed by them or assisting them, or from the place wliere 
 the same shall have been lodged by them, or in rescuing any person 
 who shall have been apprehended for any offence made felony by this 
 or any act relating to the customs, or in the preventing the appre: 
 hension of any person who shall have been guilty of such offence; 
 or in case any persons, to the number of three or more, so armed as 
 aforesaid, shall, within the United Kingdom, or within the limits of 
 any port, harbour, or creek thereof, be so aiding or assisting, every 
 person so offending, and every person aiding, abetting, or assist- 
 ing therein, shall, being thereof convicted, be adjudged guilty of 
 felony, and shall be liable, at the discretion of the court before which 
 he shall be convicted, to be transported beyond the seas for the term 
 of the natural life of such person, or for any term not less than 
 fifteen years, or to be imprisoned for any term not exceeding three 
 year*. 
 
 20 & 21 Vict. e. 3.']— Ante, p. 172. 
 
 Kent, to wit : — The jm-ors for our lady the Queen, upon their oath 
 present, that J. S., J. W. and E. W., together with divers other evil- 
 disposed persons, to the jurors aforesaid unknown, to the number of 
 
 three and more, on the first day of June, in the year of our Lord , 
 
 within the United Kingdom (" within the United Kingdom, or within 
 the limits of any port, harbour, or creek thereof"), to wit, at the parish 
 of P., in the county of K., being armed with fire-arms and other 
 offensive weapons, to wit, with guns, pistols, swords and daggers, 
 feloniously and unlawfully were assembled together, in order to be 
 aiding and assisting' in the illegal landing of certain goods then 
 prohibited by law to be landed (" in the illegal landing, running or 
 carrying away of any prohibited goods liable to any duties which have 
 not been paid or secured; or in rescuing or taking away any such goods 
 as aforesaid, after seizure, from the officer of the customs, or other offiicer 
 authorized to seize the same, or from any person or persons employed 
 by them or assisting them, or from the place where the same shall lume 
 been lodged by them; or in rescuing any person who shall have been 
 apprehended for any offence made felony by this or any act relating to 
 the customs, or in the preventing the apprehension of any person who 
 shall have been guilty of such offence"); against the form of the • 
 statute in such case made and provided, and against the peace of 
 our lady the Queen, her crown and dignity. As to the venue, see ante, 
 p. 689. An indictment for being armed and assembled, in order to be 
 aiding and assisting in doing other acts mentioned in the statute, may 
 readily be framed from the above precedent by stating such act imme- 
 diately after the asterisk. 
 
 Felony: penal servitude for life or for not less than fifteen years, or 
 imprisonment not exceeding three years: 16 & 17 Vict. c. 107, s. 248; 
 20 & 21 Vict. c. 3 (ante, p. 172). 
 
Smuggling. 867 
 
 7%is offence is not triable at quarter sessions. 6 <£ 6 Vict. c. 38, s. 1 
 ■,p. 104). 
 
 Ejvidesnce. 
 
 Prove that the defendants, or some of them, together with other 
 persons unknown, to the number of three at least, were assembled 
 and armed, as stated in the indictment. It is not necessary that all 
 should be armed j if some be armed, and the others be present aiding 
 and assisting, it will be sufficient. R. v. Smith, R. & R. 368. A 
 variance between the indictment and evidence, as to the kind of arms 
 with which they were armed, does not seem to be material ; if it be 
 proved that the defendants were armed either with " fire-arms," or 
 such other "oifensive weapons" as are within the meaning of the. 
 act, it should seem to be sufficient. And, in S. v. Cosan, 1 Leach, 
 342, 343, n. (a), the court held, that not only guns, pistols, daggers, 
 and other instruments of war, but also bludgeons (properly so called), 
 clubs, and such other things as are not in common use for any other 
 purpose but as weapons, are within the meaning of the act. SeeR. v. 
 Hutchinson, 1 Leach, 342. A common whip has been holden not to 
 be an offensive weapon; R. v. Fletcher, 1 Leach, 23; and bats, wliich 
 are long poles used by smugglers to carry tubs, were also holden not 
 to be offensive weapons within the repealed statute 6 G. 4, c. 108, 
 s. 56: R. V. Noakes, 5 C. <& P. 326. If, in the heat of an affray, a 
 man catch up a hatchet accidentally, this is not within the meaning 
 of tlie statute. R. v. Rose, 1 Leach, 342, re. Also, to bring the case 
 within the statute, it must appear that the parties had deliberately 
 assembled for the purpose charged in the indictment. 
 
 The purpose for which the defendants assembled is proved, either 
 expressly, by the evidence of an accomplice, or the like ; or im- 
 pliedly, by evidence of circumstances from which the jury may fairly 
 presume it. 
 
 Indictment for assisting in the Running of Uncustomed Goods. 
 
 The same as the last precedent, except that, instead of the words 
 " were assembled together in order to be aiding and assisting," you 
 insert these words: "were aiding and assisting, and then and there 
 feloniously and unlawfully did aid and assist," in, etc. 
 
 Felony. 16 d: 17 Vict. c. 107, s. 248. See the last precedent. 
 
 Evidence. 
 
 Prove that the defendants, or the defendants and others, to the 
 number of three at least, armed as mentioned in the evidence under 
 the last precedent, were aiding and assisting in doing that which is 
 charged against them by the indictment ; as, for in.stance, in the 
 running of uncustomed goods, etc. Eeasonable proof must be given 
 of the goods being uncustomed; that is, evidence must be given of 
 some facts or circumstances from which the jury may fairly presume 
 it. See R. v. Shelley, 1 Leach, 340, re. 
 
 p p 2 
 
868 Smuggling. 
 
 SHOOTING AT VESSELS BELONGING TO THE NAVY, ETC. 
 
 16 d; 17 Vict. c. 107, s. 2i9.']— Ante, p. 689. 
 20 <& 21 Vict. c. 3.1— Ante, p. 172. 
 
 Indictment. 
 
 Kent, to wit : — The Jurors for our lady the Queen upon their oath 
 present, that J. S., on the first day of June, in the year of our Lord 
 
 , on the high seas, and within one hundred leagues of a certain 
 
 part of the coast of the United Kingdom called , feloniously and 
 
 maliciously did shoot at a certain vessel ("vessel or hoat") belonging 
 to her said Majesty's navy (" belonging to her Majesty's navy, or in the 
 service of the revenue"); against the form [as cmte, p. 347]. And the 
 jurors atforesaid, upon their oath aforesaid, do further present, that 
 the parish of P., in the county of Kent, was the place on land into 
 which the said J. S. was next, after the commission of the offence by 
 him the said J. S. as aforesaid, to wit, on the day and year aforesaid, 
 brought. 16 & 17 Vict. c. 107, s. 275 {ante, p. 25). 
 
 Felony. 16 & 17 Viet. c. 107, s. 249. See the precedent, p. 690. 
 
 This offemce is not triable at quarter sessions. 5 <fe 6 Vict. c. 38, s. 1 
 {cmte, p. 104). 
 
 Evidence. 
 
 Prove that the defendant wilfully shot at the vessel, etc., mentioned 
 in the indictment; the malice will be presumed, until the contrary be 
 shown upon the part of the defendant. Where a custom-house vessel 
 chased a smuggler and fired into her without hoisting such a pen- 
 dant as the 62 G. 3, st. 2, c. 104, s. 8, requires, the returning the fire 
 was considered not to be malicious. R. v. Reynolds, R. & R. 465. 
 Prove, also, that the vessel in question belonged at the time to her 
 Majesty's navy, or was in the service of the revenue, as stated in the 
 indictment; which may be done, it should seem, by parol testimony, 
 without any documentary evidence. And prove that the vessel was 
 at the time within one hundred leagues of the coast of some part of 
 the United Kingdom. 
 
 BEING IN X!OMPANY WITH OTHERS WITH PROHIBITED GOODS, 
 OR ARMED. 
 
 Statute. 
 
 16 & 17 Vict. c. 107, 8. 250.] — Enacts, that if any person, in com- 
 pany with more than four others, be found with any goods liable to 
 forfeiture under this or any other act relating to the customs or ex- 
 cise, or in company with one other person, within five miles of the 
 sea-coast or of any navigable river, and carrying offensive arms or 
 
Smuggling. 869 
 
 weapons, or disguised in anyway, every such person shall be adjudged 
 guilty of felony, and shall, on conviction of such offence, be trans- 
 ported as a felon for the space of seven years. 
 
 20 tfe 21 Vict. c. 3.}— Ante, p. 172. 
 
 27 <& 28 Vict. e. 47, s. i.]— Ante, p. 173. 
 
 Indictment for being found with Goods liable to Forfeiture. 
 
 Kent, to wit : — The jurors for our lady the Queen upon their oath 
 present, that J. S., on the first day of June, in the year of our Lord 
 
 , being then in company with divers other persons to the jurors 
 
 aforesaid unknown, to the number of five and more, was found felo- 
 niously with certain goods then liable to forfeiture under and by 
 virtue of a certain act of parliament relating to the revenue of the 
 
 customs ['■'■customs or excise"), to wit, ; against the form \as 
 
 ante, p. 347]. As to the venue, see ante, p. 689. 
 
 Felony : penal servitude for not more than seven nor less them five 
 years. 16 & 17 Vict. c. 107, s. 260; 20 <& 21 Vict. e. 3 (ante, p. 172); 
 27 & 28 Vict. c. 47, s. 2 {anU,p. 173). 
 
 Ikidence. 
 
 Prove that the defendant was in company with more than four per- 
 sons, and was found with the goods stated in the indictment. Prove 
 that the goods were liable to forfeiture by some statute relating to 
 the customs or excise, as stated. 
 
 Indictment for being found Armed near a Navigable River. 
 
 Commencement as in the last precedent'} — being then feloniously in 
 company with divers other persons, to the jurors aforesaid unknown, 
 within five miles of a navigable river (" sea-coast or navigable river ") 
 
 to wit, within one mile from a certain navigable river called , 
 
 was found then and there feloniously carrying certain offensive arms 
 to wit, one pistol and one gun (" carrying offensive arms or weapons, 
 or disguised in any way "); against the form [as ante, p. 347]. 
 
 Felony. 16 tfc 17 Vict. c. 107, s. 250. See the last precedent. 
 
 Evidence. 
 Prove that the defendant was found within five miles of the navi- 
 gable river mentioned in the indictment, in company with one other 
 person, armed or disguised as stated. It does not seem clear from 
 this section, whether both must be armed or disguised. 
 
870 Offences against the Bankrupt Laws. 
 
 Sect. 2. 
 offences against the bankrupt laws. 
 
 Statute. 
 
 32 c6 33 Vict. c. 62 {The Debtors' Act, 1869), Part 2, s. 11— Punish- 
 ment of Fraudulent Debtors.} — Any person adjudged bankrupt, and 
 any person whose affairs are liquidated by arrangement in pursuance 
 of The Banhruptay Act, 1869, shall, in each of the cases following, 
 be deemed guilty of a misdemeanor, and on conviction thereof shall 
 be liable to be imprisoned for any time not exceeding two years, 
 with or without hard labour ; that is to say : — 1. If he does not, to 
 the best of his knowledge and belief, fully and truly discover to the 
 trustee administering his estate for the benefit of his creditors all his 
 property, real and personal, and how, and to whom, and for what 
 consideration, and when he disposed of any part thereof, except such 
 part as has been disposed of in the ordinary way of his trade (if any), 
 or laid out in the ordinary expense of his family, unless the jury is 
 satisfied that he had no intent to defraud ; 2. If he does not deliver 
 up to such trustee, or as he directs, all such part of his real and per- 
 sonal property as is in his custody or under his control, and which 
 he is required by law to deliver up, unless the jury is satisfied that 
 he had no intent to defraud ; 3. If he does not deliver up to such 
 trustee, or as he directs, all books, documents, papers, and writings 
 in his custody or under his control relating to his property or affairs, 
 unless the jury is satisfied that he had no intent to defraud ; 4. If 
 after the presentation of a bankruptcy petition against him or the 
 commencement of the liquidation, or within four months next before 
 such presentation or commencement, he conceals any part of his 
 property to the value often pounds or upwards, or conceals any debt 
 due to or from him, unless the jury is satisfied that he had no intent 
 to defraud ; 5. If after the presentation of a bankruptcy petition 
 against him or the commencement of the liquidation, or within four 
 months next before such presentation or commencement, he fraudu- 
 lently removes any part of his property of the value of ten pounds or 
 upwards ; 6. If he makes any material omission in any statement 
 relating to his affairs, unless the jiu:y is satisfied that he had no 
 intent to defraud ; 7. If, knowing or believing that a false debt has 
 been proved by any person under the bankruptcy or liquidation, he 
 fail for the period of a month to inform such trustee as aforesaid 
 thereof ; 8. If after the presentation of a bankruptcy petition against 
 him or the commencement of the liquidation he prevents the pro- 
 duction of any book, document, paper, or writing affecting or re- 
 lating to his property or affairs, unless the jury is satisfied that he 
 had no intent to conceal the state of his affairs or to defeat the law ; 
 
 9. If after the presentation of a bankruptcy petition against him or 
 the commencement of the liquidation, or within four months next 
 before such presentation or commencement, he conceals, destroys, 
 mutilates, or falsifies, or is privy to the concealment, destruction, 
 mutilation, or falsification of any book or document affecting or re- 
 lating to his property or affairs, unless the jury is satisfied that he 
 had no intent to conceal the state of his affairs or to defeat the law ; 
 
 10. If after the presentation of a bankruptcy petition against him or 
 the commencement of the liquidation, or within four months next 
 
Offences against the Bankrupt Laws. 871 
 
 before such presentation or commencement, he makes or is privy to 
 the making of any false entry in any book or document affecting or 
 relating to his property or aifairs, unless the jury is satisfied that he 
 had no intent to conceal the state of his affairs or to defeat the law ; 
 1.1. If after the presentation of a bankruptcy petition against him or 
 the commencement of the liquidation, or within four months next 
 before such presentation or commencement, he fraudulently parts 
 with, alters,' or makes any omission, or is privy to the fraudulently 
 parting with, altering, or making any omission in any document 
 affecting or relating to his property or affairs ; 3,2. If after the pre- 
 sentation of a bankruptcy petition against him or the commencement 
 of the liquidation, or at any meeting of his creditors within four 
 months' next before such presentation or commencement, he attempts 
 to account for any part of his property by fictitious losses or ex- 
 penses ; 13. If within four months next before the presentation of a 
 bankruptcy petition against him or the commencement of the liqui- 
 dation, he; by any false representation or other fraud, has obtained 
 any property on credit and has not paid for the same ; 14. If within 
 four months next before the presentation of a bankruptcy petition 
 against him or the commencement of the liquidation, he, being a 
 trader, obtains, under the false pretence of carrying on business and 
 dealing in the ordinary way of his trade, any property on credit and 
 has not paid for the same, unless the jury is satisfied that he had no 
 intent to defraud ; 15. If within four months next before the pre- 
 sentation of a bankruptcy petition against him or the commencement 
 of the liquidation, he, being a trader, pawns, pledges, or disposes of 
 otherwise than in the ordinary way of his trade any property which 
 he has obtained on credit and has not paid for, unless the jury is 
 satisfied that he had no intent to defraud ; 16. If he is guilty of any 
 false representation or other fraud for the purpose of obtaining the 
 consent of his creditors or any of them to any agreement with re- 
 ference to his affairs or his bankruptcy or liquidation. 
 
 Sect. 12 — Penalty for absconding with Property.'] — If any person 
 who is adjudged a banki-upt or has his affairs liquidated by arrange- 
 ment after the presentation of a bankruptcy petition against him or 
 the commencement of the liquidation, or within four months before 
 such presentation or commencement, quits England and takes with 
 him, or attempts or makes preparation for quitting England and for 
 taking with him, any part of his property to the amount of twenty 
 pounds or upwards, which ought by law to be divided amongst his 
 creditors, he shall (unless the jury is satisfied that he had no intent 
 to defraud) be guilty of felony, punishable with imprisonment for a 
 time not exceeding two years, with or without hard labour. 
 
 Sect. 13 — Penalty on fraudulently obtaining Credit, (fee] — Any 
 person shall in each of the cases following be deemed guilty of a 
 misdemeanor, and on conviction thereof shall be liable to be impri- 
 soned for any time not exceeding one year, with or without hard 
 labour; that is to say: — (1.) If in incurring any debt or liability he 
 has obtained credit under false pretences, or by means of any other 
 fraud; (2.) If he has with intent to defraud his creditors, or any of 
 them, made or caused to be made any gift, delivery, or transfer of or 
 any charge on his property; (3.) If he has, with intent to defraud his 
 creditors, concealed or removed any part of his property since or 
 
872 Offences against tJie Banhnipt Laws. 
 
 ■within two months before the date of any unsatisfied judgment or 
 order for payment of money obtained against him. 
 
 Sect. 14 — False Claim, &c. a Misdemeanor.'] — If any creditor in 
 any bankruptcy or liquidation by arrangement or composition with 
 creditors in pursuance of The Bankruptcy Act, 1869, wilfully and 
 with intent to defraud makes any false claim, or any proof, declara- 
 tion, or statement of account which is untrue in any material parti- 
 cular, he shall be guilty of a misdemeanor, punishable with impri- 
 sonment not exceeding one year, with or without hard labour. 
 
 Sect. 16 — Order h/ Cowt for Prosecution on Report of Trustee."] — 
 Where a trustee in any bankruptcy reports to any court exercising 
 jurisdiction in bankruptcy that in his opinion a bankrupt has been 
 guilty of any offence under this act, or where the court is satisfied 
 upon the representation of any creditor or member of the committee 
 of inspection that there is ground to believe that the bankrupt has 
 been guilty of any offence under this act, the court shall, if it ap- 
 pears to the court that there is a reasonable probability that the 
 bankrupt may be convicted, order the trustee to prosecute the 
 bankrupt for such offence. 
 
 Sect. 17 — Expenses of Prosecutions.] — Where the prosecution of 
 the bankrupt under this act is ordered by any court, then, on the 
 production of the order of the court, the expenses of the prosecution 
 shall be allowed, paid, and borne as expenses of prosecutions for 
 felony are allowed, paid, and borne. 
 
 Sect. IB— Application of Vexatious Indictments Act to Offences 
 under this ActJ] — Every misdemeanor under the second part of this 
 act shall be deemed to be an offence within and subject to the pro- 
 visions of the act of the session of the twenty-second and twenty- 
 third years of the reign of her present Majesty, chapter seventeen, 
 intituled " An Act to prevent vexatious indictments for certain misde- 
 meanors;" and when any person is charged with any such offence 
 before any justice or justices, such justice or justices shall take into 
 consideration any evidence adduced before him or them tending to 
 show that the act charged was not committed with a guilty intent. 
 
 Sect. 19 — Form of Indictment.] — In an indictment for an offence 
 under this act it shall be sufficient to set forth the substance of the 
 offence charged, in the words of this act specifying the offence or as 
 near thereto as circumstances admit, without alleging or setting 
 forth any debt, act of bankruptcy, trading, adjudication, or any pro- 
 ceedings in, or order, warrant, or document of any court acting under 
 The Bankruptcy Act, 1869. 
 
 Sect. 20 — Quarter Sessions to have Jurisdiction in reject of Offences 
 under jlci.]— So much of the act of the session of the fifth and sixth 
 years of her Majesty's reign (chapter thirty-eight), "to define the 
 jurisdiction of justices in general and quarter sessions of the peace," 
 as excludes from the jurisdiction of justices and recorders at sessions 
 of the peace or adjournments thereof the trial of persons for offences 
 against any provision of the laws relating to bankrupts, is hereby 
 repealed as from the passing of this act ; and any offence under this 
 
Offefwes against the Banhmpt Laws. 873 
 
 act shall be deemed to be within the jurisdiction of such justices and 
 recorders. 
 
 Sect. 2Z —Punishments under this Act cumulative.'] — Where any 
 person is liable under any other act of parliament or at common law 
 to any punishment or penalty for any offence made punishable by 
 this act, such person may be proceeded against under such other act 
 of parliament or at common law or under this act, so that he be not 
 punished twice for the same offence.* 
 
 Indictment against a Bamkrwpt for not discovering his Property to the 
 Trustee, concealing part of his Property, a/nd fraudulently removing 
 pa/rt of his Property. 
 
 Borough of Leeds, in the county of York, to wit : — The jurors for our 
 lady the Queen upon their oath present, that heretofore, and before 
 the committing of the offence next hereinafter mentioned, to wit, on 
 
 the day of , in the year of our Lord , J. S. was adjudged 
 
 bankrupt; and that the said J. S. afterwards, with intent to defraud 
 his creditors, unlawfully did not, to the best of his knowledge and 
 belief, fully and truly discover to A. B., then being the trustee of 
 the property of the said J. S., a bankrupt, and administering the estate 
 of the said J. S. for the benefit of his said creditors,f two hundred 
 yards of woollen cloth and four tuns of olive oil, being part of the per- 
 sonal property of him the said J. S. ; against the form of the statute 
 in such case made and provided. (2recZ Count.) And the jurors afore- 
 said, upon their oath aforesaid, do further present, that [as in the first 
 count to the f ], how and to whom, and for what consideration, and 
 when he disposed of two hundred yards of woollen cloth and four tuns 
 of olive oil, being part of the personal property of the said J. S., 
 and not having been disposed of in the ordinary way of his trade, 
 nor laid out in the ordinary expense of his family ; against the form 
 of the statute in such case made and provided. {3rd Count.} And 
 the jurors aforesaid, upon their oath aforesaid, do iurther present, that 
 [as in the first cov/nt to the f], two hundred yards of woollen cloth and 
 four tuns of olive oil, being part of the personal property of him the 
 said J. S., and how and to whom, and for what consideration, and when 
 he disposed of the said two hundred yards of woollen cloth and four 
 tuns of oUve oil, the said two hundred yards of woollen cloth and four 
 tuns of olive oil not having been disposed of in the ordinary way of 
 the trade of the said J. S., nor laid out in the ordinary expense of his 
 family; against the form of the statute in such case made and pro- 
 vided. (4iA Count.) And the jurors aforesaid, upon their oath afore- 
 said, do further present, that heretofore, and before the committing 
 
 of the offence next hereinafter mentioned, to wit, on the day of 
 
 , in the year of our Lord , a bankruptcy petition was pre- 
 sented against the said J. S., and that the said J. S. was thereupon, 
 
 to wit, on the day of , in the year of our Lord , adjudged 
 
 bankrupt ; and that the said J. S., after the presentation of the said 
 bankruptcy petition against him (" after the presentation of a bank- 
 ruptcy petition against him, or within fow months next before such 
 
 presentation'^, to wit, on the day of , in the year of our 
 
 Lord , unlawfully, and with intent to defraud his creditors, didf 
 
 conceal a certain part of his property to the value of ten pounds 
 
 * For certain statutory regulations as to proof of proceedings in banjtruptcy, see 32 & 33 
 riot. 0. 71 (" Tlie Bankruptcy Act, 1869"), ante, p. 247. 
 
 p p 5 
 
874 Offences against the Bankrupt Laws. 
 
 and upwards, that is to say, two hundred yards of woollen cloth 
 of the value of one hundred pounds, and four tuns of olive oil of 
 the value of one hundred and fifty pounds ; against the form of the 
 statute in such case made and provided, {bth Count.) [^As in the 
 fourth count to the t] fraudulently remove a certain part of his pro- 
 perty of the value of ten pounds and upwards, that is to say, two 
 hundred yards of woollen cloth of the value of one hundred pounds, 
 and four tuns of olive oil of the value of one hundred and fifty 
 pounds; against the form of the statute in such case made and 
 provided. I'/ie 1st, ind, and 3rd counts of the above indictment are 
 framed to meet the offences defined in s. 11, par. 1, of 2/2 Sf 33 
 Vict. e. 62. That paragraph appears to define two separate offences, 
 and that view has been adopted in drawing the 1st and ^nd counts. 
 In drawing the 3rd it has been assumed that the paragraph creates 
 only one offence, an assumption which would seem to be incorrect (see 
 Nash V. it., i B. ^ S. 935; 33 L. J. (M. C.) 94, infra); but still, 
 supposing that the paragraph creates two offences, the 3rd count 
 would appear to be good, at all events after verdict. The 24 Sj- 25 
 Vict. c. 134, s. 221, enacted, that '■^ any bankrupt who shall do any 
 of the acts or things following, with intent to defraud or defeat the 
 rights of his creditors, shall be guilty of a misdemeanor." '' 'i. If lie 
 shall not upon his examination fully and truly discover, to the best 
 of his knowledge and belief, all his property, real and personal, in- 
 clusive (f his rights and credits, and how and to whom, and for what 
 consideration, and when he disposed of, assigned or transferred any 
 part thereof, except such part as has been really and bona tide before 
 sold or disposed of in the way of his trade or business, if any, or laid 
 out in the ordinary expense of his family, or shall not deliver up to 
 the court, or dispose as the court directs of all such part thereof as is 
 in his possession, custody or power, except the necessary wearing 
 apparel of himself, his wife and children ; and deliver up to the 
 court all books, papers and writings in his possession, dustody or 
 power relating to his property or affairs." Where an indictment 
 framed upon this paragraph in one count thereof charged that the 
 defendant, a bankrupt, upon his examination "with intent to de- 
 fraud and defeat the rights of his creditors, did not fully and truly 
 discover, to the best of his knowledge and belief, all his property, 
 to wit, all his personal property in money and goods; and did not, 
 as to part of his property {not being part fully and bona fide be- 
 fore sold or disposed of in the way of his trade or business, and not 
 laid out in the ordinary expense of his family), fully and truly dis- 
 cover to the best of his knowledge and belief as aforesaid, how, and 
 to whom, and for what consideration, and when, he had disposed of, 
 assigned or transferred such part thereof, to wit, £ 1 ,000 sterling, one 
 thousand sacks of corn, ten horses, five clocks, five boxes, and other 
 goods and effects, being part of the property of the said S. N. as 
 aforesaid," it was held that, after verdict, the count was good; that 
 the offence being charged in the words of the statute, any want of par- 
 ticularity was cured, after verdict, by the 7 G. 4, c. 64, «. 21; and 
 that if the count charged two offences, duplicity was not ground of 
 error. Nash v. S., i B. Sj- S. 935 ; 33 L. J. {M. C.) 94, ante, pp. 
 63. 64. 
 
 The fourth and fifth counts are framed to meet the offences defined 
 in sect.-W, pars. 4^5, of 30, S^ 33 Vict, c 62. Counts for other 
 offences against that statute may easily be framed from a considera- 
 tion of this indictment and the provisions of the statute. 
 
Offences against the Bamkrupt Laws. 875 
 
 Under the repealed cuet 12 ^ 13 Vict. e. 106, «. 251, the indictment 
 must have alleged an intertt to defraud the creditors ; it was held that 
 those words in the statute fwerrode the whole section. R. v. Hill, 1 C. 6r 
 K. 168. And the repealed act^i Sf 25 Vict. c. 134, s. 221, also made the 
 intent " to defraud or defeat the rights of his creditors" an ingredient 
 in the offences thereby created. In each count of the form of indict- 
 ment given above, the act is alleged to have been omitted or done with 
 intent to defraud and defeat the rights of creditors, but it would seem, 
 looking to the altered language of the present statute, that it is not 
 necessary to make this allegation. The word "unlawfully," inserted 
 in the above form, appears also to be surplusage. JR. v. Leather- 
 barrow, 10 Cox, 637. Before the 24 if 25 Vict. c. 134, the indict- 
 ment must have shown on the face of it that the defendant had duly 
 become bankrupt, and must therefore have stated the trading petition- 
 ing creditor's debt, and act of bankruptcy. R. v. Jones, 4: B. Sf Ad. 
 34>; 2 L. J. (M. C.) 7. See R. v. lands, Dears. 567 ; 25 X. J". 
 (JM. C.)U: R. V. Massey, L. f C. 206 ; 32 L. J. (ikf. C.) 21. But 
 that stat. (s. 225) made it sufficient to set forth the substance of the 
 offence charged, loithout alleging or setting forth any debt, act of bank- 
 ruptcy, petition, or adjudication. The 24 Sj- 25 Vict, c. 134, is now re- 
 pealed, but by 32 ^ 33 Vict, c, 62, s. 19 {ante, p. 872), it is enacted, that 
 " in an indictment for an offence under this act it shall be sufficient to 
 set forth the substance of the offence charged, in the words of this act, 
 specfying the offence, or as near thereto as circumstances admit, 
 without alleging or setting forth any debt, act of bankruptcy, trading, 
 adjudication, or any proceedings in, or order, warrant, or document 
 of any court acting under The Bankruptcy Act, l869." 
 
 Misdemeanor : imprisonment not exceeding two years, with or with- 
 out hard labour.— 32 if 33 Vict. c. 62, *. 11. 
 
 Offences under 32 ^ 33 Vict. c. 62, are triable at quarter sessions. 
 32 if 33 Vict. c. 62, s 20, ante, p. 872. 
 
 No indictment can be preferred for any misdemeanor under the 
 second part of S2 if 33 Vict c. 02, unless one or other of the prelimi- 
 nary steps required by 22 if 23 Vict. c. 17, s. 1 (ante, p. 4), has 
 been taken. 32 ^ 33 Vict c. 62, s. 18, ante, p. 872. The court be- 
 fore which the indictment is tried has no power to order payment of 
 the costs of the prosecution, where the prosecution has not been 
 ordered by any court. R. v. Thomas, 11 Cox, 535. See 32 if 33 
 Vict. c. 62, s. 17, ante, p. 872. 
 
 Evidence. 
 Prove the bankruptcy petition by producing the petition itself under 
 the seal of the court, or a copy thereof under the seal of the court. 
 32 (k 33 Vict. c. 71, s. 107, ante, p. 249. Prove also the adjudication 
 of bankruptcy, by producing the adjudication under the seal of the 
 court (-B. V. Thomas, 11 Cox, 535, per Lush, J.), or a copy thereof 
 under the seal of the court (32 & 33 Vict. c. 71, s. 107, ante, p. 249), 
 or a copy of the London Gazette containing the order of adjudica- 
 tion. Id. s. 10, ante, p. 24/7. It was formerly also neoessaiy to 
 prove the trading (where the bankrupt was a trader and could only 
 become bankrupt as such), petitioning creditor's debt, and act of 
 bankruptcy; see B. v. Jones, iB.S Ad. 345; 2 L. J. {M. C.) 7: R. 
 V. Lands, Dears. 567; 25 L. J. {M. C.) 14: R. v. Massey, L. & C. 
 206; 32 L. J. (M. C.) 21; for although by the 24 dh 25 Vict. c. 134, 
 «.'225, it was not necessaiy to state these matters in the indictment, 
 they must still have been proved, as ingredients in the fact of bank- 
 ruptcy, although if the bankrupt took no steps within the prescribed 
 
876 Offences against the Bankrupt Laws.. 
 
 period to annul the adjudication, the Gazette containing the adver- 
 tisement of the bankruptcy was conclusive evidence of the bank- 
 ruptcy in criminal as well as in civil proceedings taken against him. 
 JR. V. Levi, L. & a 697; 34 L. J. (M. C.) 174: R. v. Robinson, L.R., 
 1 a a R. 80; 36 L. J. (M. C.) 78 (12 & 13 Vict. c. 106, «. 233). It 
 seems, however, to be unnecessary, on the trial of an indictment 
 framed under the 32 <S; 33 Vict. c. 62, s. 11, to prove the trading, the 
 petitioning creditor's debt, or the act of bankruptcy, as that section 
 enacts, not that "any bankrupt," but that " any p&rson adjudged 
 bankrupt" shall, in the eases mentioned in the section, be guilty of 
 a misdemeanor, and therefore the prosecutor need not prove the 
 trading, petitioning creditor's debt, or act of bankruptcy, but merely 
 that the defendant was adjudged bankrupt. R. v. Thomas, 11 Cox, 
 635, 638, per Lush, J. See also ante, pp. 247, 248. Prove also the 
 appointment of A. B. as trustee, which is done by putting in the 
 certificate of his appointment or a copy thereof under the seal of the 
 court. 32 S 33 Vict. c. 71, ss. 18, 107, ante, p. 248. 
 
 Prove also, as to the first count, that the defendant did not ftilly 
 and truly discover to the trustee the property, or some part thereof, 
 mentioned in that count; and as to the second count, that he did not 
 fully and truly discover to the trustee how he disposed of the pro- 
 perty, [and that it was not disposed of in the ordinary way of his 
 trade, nor laid out in the ordinary exp&nse of his family]. The evi- 
 dence on the third count will be the same as the evidence on the 
 first and second counts. The 2nd par. of s. 221 of 24 (& 26 Vict. 
 c. 134, ante, p. 874, to which the 1st par. of s. 11 of 32 <6 33 Vict. 
 c. 62, is analogous, enacted, that if the bankrupt should not, " upon 
 his examination," fully and trulj' discover, &c., and it was therefore 
 necessary on the trial of an indictment under that paragraph to 
 produce and prove the examination. The present statute, however, 
 omits the words " upon his examination," and it would appear, there- 
 fore, that the bankrupt may be liable to an indictment for the 
 offences mentioned to the first, second and third counts of this indict- 
 ment, although he has not been examined. If, however, he has been 
 examined, the examination should be produced. It seems not to be 
 necessary for the prosecutor, at all events in the first instance, to 
 give any evidence that the acts of omission charged in the'first three 
 counts were with mtent to defraud. Upon such acts being proved, 
 the jury ought to convict the defendant, \mless they are satisfied 
 that the defendant had no intent to defi-aud. 32 d 33 Vict. c. 62 
 «. 11, ^ar. 1, ad Jin. 
 
 The formal p^oof as to the fourth and fifth counts is the same as 
 that on the first, second and third counts. Prove also as to the 
 fourth and fifth counts, that the defendant, after the presentation of 
 the petition, concealed or frauduhntly removed the property men- 
 tioned in the indictment, or some part thereof, and that the value of 
 the property so concealed or removed is 10/. Where an indictment 
 specified various articles, without stating the value, and added " one 
 hundred other articles of furniture, and a certain debt due from J. T. 
 to the prisoner, of the value of 20Z. and upwards," the judges held 
 that the indictment was good only as regarded the articles specified; 
 and as an entire value was given to the whole, it did not appear that 
 the articles specified were of the value required by the statute. R. 
 V. Forsyth, R. & R. 274. It had been ruled, that, up to and until his 
 last examination, the bankrupt had a locus pcenitentice, and could not 
 therefore, until that, were passed, be indicted for concealing pro- 
 perty, which ,he might upon his last examination give up; B. vi 
 
Offtncis against the Bankrupt Laws. 877 
 
 Walters, 6 C. dh P. 138 ; but that decision was overruled by the case 
 of Courtivron \. Mewnier, 6 Exch. 74, in which it has held that a 
 secreting by a bankrupt of his goods, with intent to cheat his cre- 
 ditors, was a concealment sufficient to avoid his certificate, under the 
 repealed act 5 <6 6 Vict. c. 122, s. 38, although a full disclosure was 
 made by him to the commissioners in bankruptcy before his last 
 examination. 
 
 Upon proof of such concealment as is charged in the fourth count, 
 the jury are to convict unless they are satisfied that the defendant 
 had no intent to defraud, 32 d 33 Vict. c. 62, «. 11, par. 4. This 
 satisfaction they may gain from the evidence for the prosecution, but 
 if the prosecutor merely proves the concealment without disclosing 
 any fact which show that it was innocent, then it will be for the 
 defendant to prove that he had no intent to defraud. As to the 
 fifth count, the case is different. The prosecutor to support it must 
 prove not merely a removal but a.fraudulm,t removal, 32 (& 33 Vict, 
 c. 62, s. 11, pa/r. 5. That the removal was fraudulent will generally 
 be a matter of inference from the circumstances under which it took 
 place. 
 
 A married woman had carried on business and been adjudicated 
 bankrupt upon her own petition, during the temporary absence of 
 her husband from the country. An indictment under 24 (& 25 Vict. 
 c. 134, charged her with concealing and embezzling certain property 
 laid to be her property, with intent to defraud her creditors. It was 
 held, that on the fact appearing that she was a married woman, the 
 allegation of property was disproved, as it was and continued to be 
 her husband's property, notwithstanding the adjudication of bank- 
 ruptcy, and that therefore the indictment failed. R. v. Rohinson, 
 L. R., 1 a a R. 80; 36 L. J. {M. C.) 78. But see now 33 & 34 
 Vict. c. 93, s. 1, which enacts, that " the wages and earnings of any 
 married woman acquired or gained by her after the passing of this 
 act in any employment, occupation or trade in which she is engaged 
 or which she carries on separately from her husband, and also any 
 money or property so acquired by her through the exercise of any 
 literary, artistic or scientific skill, and all investments of such wages, 
 earnings, money or property, shall be deemed and taken to be pro- 
 perty held and settled tp her separate use, independent of any hus- 
 band to whom she may be married, and her receipts alone shall be a 
 good discharge for such wages, earnings, money and property." 
 
 Where the defendant was indicted for an offence against 32 db 33 
 Vict. c. 62, s. 11, ^an 16, and the facts proved were that he was a 
 grocer who had obtained goods used in his trade upon credit, and 
 that soon after receiving them and before they were paid for and 
 within four months next before the presentation of a bankruptcy 
 petition against him, he executed a bill of sale to a creditor in consi- 
 deration of a pre-existing debt, which bill of sale included all his 
 stock in trade and effects whatsoever, including the before-mentioned 
 unpaid-for goods, it was held by Lush, 3. (after conferring with 
 Martin, B.), that disposing of the goods by bill of sale was not dis- 
 posing of them in the " ordinary way of trade;" and, therefore, that 
 as property which the defendant had obtained on credit, and had not 
 paid for, had passed by the bill of sale, he came within par. 15, 
 unless he had no intent to defraud, but that the assigning the whole 
 of his property to one creditor, reserving nothing for the otherSj 
 showed an intent to defraud, even although it appeared that the bill 
 of sale had been given in pursuance of a long antecedent promise to 
 execute it when requested. R. v. Thomas, 11 Cox, 535. 
 
878 Counterfeiting Trade Marks. 
 
 Sect. 3. 
 
 counterpeitina trade marks. 
 
 25 <& 26 Vict. c. 88, s. 1 — Construction of words : ^^ person;" " mark;'' 
 " trade mark;" " misdemeanor."^ — In the construction of this act the 
 ■word " person" shall include any person, whether a subject of her 
 Majesty or not, and any body corporate or body of the like nature, 
 whether constituted according to the law of this country or of any of 
 her Majesty's colonies or dominions, or according to. the law of any 
 foreign country, and also any company, association, or society of per- 
 sons, whether the members thereof be subjects of her Majesty or not, 
 or some of such persons subjects of her Majesty and some of them 
 not, and whether such body corporate, body of the like nature, com- 
 pany, association, or society be established or carry on business 
 within her Majesty's dominions or elsewhere, or partly within her 
 Majesty's dominions and partly elsewhere; the word "mark" shall 
 include any name, signature, woi-d, letter, device, emblem, figure, 
 sign, seal, stamp, diagram, label, ticket, or other mark of any other 
 description ; and the expression " trade mark" shall include any and 
 every such name, signature, word, letter, device, emblem, figure, 
 sign, seal, stamp, diagram, label, ticket, or other mark as aforesaid 
 lawfully used by any person to denote any chattel, or (in Scotland) 
 any article of trade, manufacture, or merchandise, to be an article m 
 thing of the manufacture, workmanship, production, or merchandise 
 of such person, or to be an article or thing of any peculiar or par- 
 ticular description made or sold by such person, and shall also include 
 any name, signature, word, letter, number, figure, mark, or sign which 
 in pursuance of any statute or statutes for the time being in force 
 relating to registered designs is to be put or placed upon or attached 
 to any chattel or article during the existence or continuance of any 
 copyright or other sole right acquired under the provisions of such 
 statutes or any of them; the word "misdemeanor" shall include crime 
 and offence in Scotland ; and the word " court" shall include any 
 sheriff or sheriff substitute in Scotland. 
 
 Sect. 2 — Forging a trade mark or falsely applying any trade mark 
 with intent to defraud, a misdemea/nor.']. — Every person who, with in- 
 tent to defraud, or to enable another to defraud any person, shall forge 
 or counterfeit, or cause or procure to be forged or counterfeited, any 
 trade mark, or shall apply, or cause or procure to be applied, any trade 
 mark or any forged or counterfeited trade mark to any chattel or 
 article not being the manufacture, workmanship, production, or mer- 
 chandise of any person denoted or intended to be denoted by such 
 trade mark, or denoted or intended to be denoted by such forged or 
 counterfeited trade mark, or not being the manufacture, workman- 
 ship, production, or merchandise of any person whose trade mark 
 shall be so forged or counterfeited, or shall apply, or cause or pro- 
 cure to be applied, any trade mark or any forged or counterfeited 
 trade mark to any chattel or article, not being the particular or pe- 
 culiar description of manufacture, workmanship, production, or mer- 
 chandise denoted or intended to be denoted by such trade mark or 
 by such forged or counterfeited trade mark, shall be guilty of a mis- 
 demeanor \as to punishment, see s. 14, infra"], and every person so 
 committing a misdemeanor shall also forfeit to her Majesty every 
 chattel and article belonging to such person to which he shall have 
 
Counterfeiting Trade Marks. 879 
 
 80 unlawftiUy applied, or caused or procured to be applied, any such 
 trade mark or forged or counterfeited trade mark as aforesaid, and 
 every instrument in the possession or power of such person, and by 
 means of which any such trade mark, or forged or counterfeited 
 trade mark as aforesaid, shall have been so applied, and every in- 
 strument in the possession or power of such person for applying any 
 such trade mark or forged or counterfeit trade mark as aforesaid, 
 shall be forfeited to her Majesty ; and the court before which any 
 such misdemeanor shall be tried may order such forfeited articles as 
 aforesaid to be destroyed or otherwise disposed of as such court shall 
 think fit. 
 
 Sect. 3— Applying a forged trade mark to any vessel, case, wrapper, 
 etc., in or with which any article is sold or intended tq he sold, a mis- 
 demeanor.'] — Every person who, with intent to defraud, or to enable 
 another to defraud, any person, shall apply or cause or procure to be 
 applied any trade mark or any forged or counterfeited trade mark to 
 any cask, bottle, stopper, vessel, case, cover, wrapper, band, reel, 
 ticket, label, or other thing in, on, or with which any chattel or article 
 shall be intended to be sold or shall be sold or uttered or exposed for 
 sale, or intended for any purpose of trade or manufacture, or shall 
 enclose or place any chattel or article, or cause or procure any chattel 
 or article to be enclosed or placed, in, upon, under, or with any cask, 
 bottle, stopper, vessel, case, cover, wrapper, band, reel, ticket, label, 
 or other thing to which any trade mark shall have been falsely ap- 
 plied, or to which any forged or counterfeited trade mark shall have 
 been applied, or shall apply or attach, or cause or procure to be applied 
 or attached, to any chattel or article any case, cover, reel, ticket, label, 
 or other thing to which any trade mark shall have been falsely 
 applied, or to which any forged or counterfeited trade mark shall have 
 been applied, or shall enclose, place, or attach any chattel or article, 
 or cause or procure any chattel or article to be enclosed, placed, or 
 attached, in, upon, under, with, or to any cask, bottle, stopper, vessel, 
 case, cover, wrapper, band, reel, ticket, label, or other thing having 
 thereon any trade mark of any other person, shall be guilty of a 
 misdemeanor [as to punishment, see s. 14, infra], and every person so 
 committing a misdemeanor shall also forfeit to her Majesty every 
 such chattel and article, and also every such cask, bottle, stopper, 
 vessel, case, cover, wrapper, band, reel, ticket, label, or other thing 
 as aforesaid in the possession or power of such person ; and every 
 other similar cask, bottle, stopper, vessel, case, cover, wrapper, band, 
 reel, ticket, label, or other thing made to be used in like manner as 
 aforesaid, and every instrument in the possession or power of such 
 person, and by means of which any such trade mark or forged or 
 counterfeited, trade mark as aforesaid shall have been applied, and 
 also every instrument in the possession or power of such person for 
 applying any such trade mark or forged or counterfeit trade mark 
 as aforesaid, shall be forfeited to her Majesty; and the court before 
 which any such misdemeanor shall be tried may order such forfeited 
 articles as aforesaid to be destroyed or otherwise disposed of as such 
 court shall think fit. 
 
 Sect, 5 — Additions to and alterations of trade marks made with 
 intent to defraud to he deemed forgeries.] — Every addition to and 
 every alteration of, and also every imitation of any trade mark which 
 shall be made, applied, or used with intent to defraud, or to enable 
 
880 Counterfeiting Trade Marks. 
 
 any other person to defraud, or which shall cause a trade mark with 
 such alteration or addition, or shall cause such imitation of a trade 
 mark to resemble any genuine trade mark so or in such manner as 
 to be calculated or likely to deceive, shall be and be deemed to be a 
 false, forged, and counterfeited trade mark within the meaning of this 
 act ; and every act of making, applying, or otherwise using any such 
 addition to or alteration of a trad© mark or any such imitation of a 
 trade mark as aforesaid done by any person with intent to defraud, 
 or to enable any other person to defraud, shall be and be deemed to 
 be forging and counterfeiting a trade mark within the meaning of 
 this act. 
 
 Sect. 9 — Proviso that it shall not he an offence to apply names or 
 words hnown to he used for indicating particular classes of manufac- 
 tures.^ — Provided always, that the provisions of this act shall not be 
 construed so as to make it any offence for any person to apply to any 
 chattel or article, or to any cask, bottle, stopper, vessel, case, cover, 
 wrapper, band, reel, ticket, label or other thing with which such 
 chattel or article shall be sold or intended to be sold, any name, word, 
 or expression generally used for indicating such chattel or article to 
 be of some particular class or description of manufacture only, or so 
 as to make it any offence for any person to sell, utter, or offer or 
 expose for sale any chattel or article to which, or to any cask, bottle, 
 stopper, vessel, case, cover, wrapper, band, reel, ticket, label, or other 
 thing sold therewith, any such generally used name, word, or expres- 
 sion as aforesaid shall have been applied. 
 
 Sect. 10 — Description of trade ma/rhs amd forged trade marks in 
 indictments, etc.'] — In every indictment, pleading, proceeding, and 
 document whatsoever in which any trade mark shall be intended to 
 be mentioned, it shall be sufficient to mention or state the same to be 
 a trade mark without further or otherwise describing such trade mark, 
 or setting forth any copy or fac-simile thereof ; and in every indict- 
 ment, pleading, proceeding, and document whatsoever in which it 
 shall be intended to mention any forged or counterfeit trade mark it 
 shall be sufficient to mention or state the same to be a forged or 
 counterfeit trade mark without further or otherwise describing such 
 forged or counterfeit trade mark, or setting forth any copy or fac- 
 simile thereof. 
 
 Sect. 12 — Intent to defraud, etc., amy particular person need not he 
 alleged in an indictment, etc., or proved.] — In every indictment, infor- 
 mation, conviction, pleading, and proceeding against any person for 
 any misdemeanor or other offence against the provisions of this act 
 in which it shall be necessary to allege or mention an intent to de- 
 fraud, or to enable another to defraud, it shall be sufficient to allege 
 or mention that the person accused of having done any act which is 
 hereby made a misdemeanor or other offence did such act with intent 
 to defraud, or with intent to enable some other person to defraud, 
 without alleging or mentioning an intent to defraud any particular 
 person ; and on the trial of any such indictment or information for 
 any such misdemeanor, and on the hearing of any information or 
 charge of or for any such other offence as aforesaid, and on the trial 
 of any action against any person to recover a penalty for any such 
 other offence as aforesaid, it shall not be necessary to prove an intent 
 to defraud any particular person, or an intent to enable any particular; 
 
Counterfeiting Trade Maries. 881 
 
 person to defraud any particular person, but it shall be sufficient to 
 prove with respect to every such misdemeanor and offence that the 
 person accused did the act charged with intent to defraud, or with 
 intent to enable some other person to defraud, or with the intent that 
 any other person might be enabled to defraud. 
 
 Sect. 13 — Persons who aid in the commission of a misdemeanor to 
 he also guilty.'] — Every person who shall aid, abet, counsel, or pro- 
 cure the commission of any offence which is by this act made a 
 misdemeanor shall also be guilty of a misdemeanor. 
 
 Sect. 14 — Pvmishment for misdemea/nor wnder this acf] — Every per- 
 son who shall be convicted or found guilty of any offence which is 
 by this act made a misdemeanor shall be liable, at the discretion of 
 the court and as the court shall award, to suffer such punishment by 
 imprisonment for not more than two years, with or without hard 
 labour, or by fine, or both by imprisonment, with or without hard 
 labour and fine, and also by imprisonment until the fine (if any) shall 
 iave been paid and satisfied. 
 
 Sect, li— Limitations of actions, etc.l — No person shall commence 
 any action or proceeding for the recovery of any penalty, or pro- 
 curing the conviction of any offender in manner hereinbefore pro- 
 vided, after the expiration of three years next after the committing 
 of the offence, or one year next after the first discovery thereof by 
 the party proceeding. 
 
 Sect. 25 — Act not to affect the corporation of Cutlers of Hallam- 
 shire, nor to repeal 59 G. 3, c. 7.] — Nothing in this act contained 
 shall be construed to' affect the rights and privileges of the coi-pora- 
 tion of cutlers of the liberty of Hallamshire in the county of York, 
 nor shall anything in this act contained be construed in any way to 
 repeal or make void any of the provisions contained in the 59 G. 3, 
 c. 7, intituled " An Act to regulate the Cutlery Trade in England." 
 
 Sect. 26— Short title.'] — The expression " The Merchandise Marks 
 Act, 1862," shall be a sufficient description of this act. 
 
( 882 ) 
 
 CHAPTER V. 
 
 OFFENCES AGAINST PUBLIC MORALS AND POLICE. 
 
 Sect. 1. Bigamy^ p. 882. 
 
 2. Common Nuisance, p. 889. 
 
 3. Carriage and Deposit of Dangerous Goods, p. 917. 
 
 4. Open and Notorious Lewdness, p. 920. 
 6. Gaming, p. 921. 
 
 6. Offences relating to Game, p. 922. 
 
 7. Taking up Dead Bodies, p. 929. 
 
 8. Disturbing Public Worship, p. 930. 
 
 9. Refusing to execute a Public Office, p. 932. 
 
 Sect. 1. 
 
 BIGAMY. 
 
 Statute. 
 
 24 <6 25 Vict. c. 100, s. 57.] — Whosoever, being married, shall 
 marry any other person during the life of the former husband or 
 wife, whether the second marriage shall have taken place in England 
 or Ireland or elsewhere, shall be guilty of felony, and being con- 
 victed thereof shall be liable, at the discretion of the court, to be kept 
 in penal servitude for any term not exceeding seven years, and not 
 less than three years [now five years, 27 d 28 Vict. c. 47, s. 2 {ante, 
 p. 173)], or to be imprisoned for any term not exceeding two years, 
 with or without hard labour; and any such offence may be dealt 
 with, inquired of, tried, determined, and punished in any county or 
 place in England or Ireland where tlie offender shall be apprehended 
 or be in custody, in the same manner in all respects as if the offence 
 had been actually committed in that county or place: Provided, that 
 nothing in this section contained shall extend to any second mar- 
 riage contracted elsewhere than in England and Ireland by any 
 other than a subject of her Majesty, or to any person marrying a 
 second time, whose husband or wife shall have been continually 
 absent from such person for the space of seven years then last past, 
 and shall not have been known by such person to be living within 
 that time, or shall extend to any person who, at the time of such 
 second mai-riage, shall have been divorced from the bond of the first 
 marriage, or to any person whose former marriage shall have been 
 declared void by the sentence of any court of competent jurisdic- 
 tion. 
 
Bigamy. 883 
 
 Indictment. 
 
 Central Criminal Court, to wit: — The jurors for our lady the Queen 
 upon their oath present, that J. S., on the first day of April, in the 
 
 year of our Lord , at the parish of C, in the county of D., did 
 
 marry one A. C., spinster, and her the said A. then and there had 
 for his wife; and that the said J. S. aftenvards, and whilst he was so 
 married to the said A. as aforesaid, to wit, on the first day of June, 
 
 in the year of our Lord , at the parish of F., in the county of G., 
 
 feloniously and unlawfully did marry and take to wife one M. Y., 
 and to her the said M. was tlien and there married, the said A., his 
 former wife, being then alive ; against the form of the statute in 
 such case made and provided, and against the peace of our lady the 
 Queen, her crown and dignity." And the jurors aforesaid, upon their 
 oath aforesaid, do further present, that the said J. S. afterwards, 
 to wit, on the 10th day of June, in the year last aforesaid, at the 
 parish of B., in the county of E., within the jurisdiction of the said 
 court, was apprehended [or, that the said J. S. now is in custody at 
 the parish of B., in the county of E., and within the jurisdiction of 
 the said court] for the felony aforesaid. As to the venue, see ante, 
 p. 882. Where the indictment is not preferred in the county where the 
 second marriage took placet ^' "* i^'^t county in which the prisoner was 
 apprehended or is in custody, it need not state the fact of the appre- 
 hension or custody in the latter county; for it will appear hy the caption 
 of the indictment that the prisoner was in custody of the sheriff of the 
 county in which the indictment was found. JR. y. Whiley, \ C.& E. 150, 
 which case is wrongly reported in 2 Mood. C. C. 186. See R. v. 
 Smythies, 1 Den. 498; 2 C. & K. 878; 19 L. J. (M. C.) 31. In R. v. 
 Eraser, 1 Mood. C. C. 407, the first marriage was laid in Kent, the 
 second in Surrey, the venue was Middlesex, and it was alleged that the 
 prisoner was apprehended without stating any place, and the conviction 
 was held bad, hut no suggestion was made that the defect was cured by 
 the caption; this case, therefore, may now be considered no authority. 
 1 Russ. C. d M. by Greaves, 274 (4iA ed.). So much, therefore, of the 
 form of indictment given above as follows the asterisk appears to he 
 unnecessary in any case, although it is still usual to insert it where the 
 second marriage did not take place in the county where the prisoner 
 is indicted. 
 
 The allegation that the defendant married again, " the said A. his 
 former wife being then alive," sufficiently charges the offence, without 
 any further averment, that he was still married to A. when the offence 
 was committed. Murray v. R., 7 Q. B. 700. 
 
 Felony : penal servitude for not more than seven nor less than five 
 [27 & 28 Vict. c. 47, s. 2 (ante, p. 173)] years, or imprisonment, with 
 or without hard labour, not exceeding two years.— 'ii^ & 25 Vict. 
 c. 100, «. 57. As to requiring the offender to enter into recognizances 
 andfimd sureties for keeping the peace. Id. s. 71, ante, p. 619. 
 
 This offence is not triable at quarter sessions. 5 <& 6 Vict. u. 38, s. 1 
 (ante, p. 104). 
 
 Evidence on the part of the Prosecution. 
 
 1. The marriage between the defendant and A. C. must be proved. 
 The time at which it was celebrated is immaterial; and whether 
 celebrated in this country or in a foreign country is also immaterial. 
 1 Hale, 692. 
 
 If celebrated abroad, it may be proved by any person who was 
 
884 Bigamy. 
 
 present at it ; and circumstances should also be proved, fi'om which 
 the jury may presume that it was a valid marriage according to the 
 laws of the country in which it was celebrated. Proof that the cere- 
 mony was performed by a person appearing and officiating as a priest, 
 and that it was understood by the parties to be the marriage cere- 
 mony, according to the rites and customs of the foreign country, 
 would be sufficient presumptive evidence of it ; see R. v. Inhabitants 
 of Brampton, 10 East, 282, so as to throw upon the defendant the 
 onus of impugning its validity. {See, as to Scotch marriages, Dal- 
 rymple v. Dalrymph, 12 Haggard's Rep. 54 : Ilderton v. Ilderton, 2 
 H. Bl. 145: Orompton v. Bearcroft, Bull. N. P. 113: R. v. Povey, 
 Dears. 32; 22 L. J. (If. C.) 19. It is now established by the case 
 ot R. V. Millis, in the House of Lords (10 CI. & Fin. 534; see also 
 Catherwood v. Caslon, 13 M. <& W. 261), that by the common law of 
 England a marriage between British subjects, although celebrated 
 according to the rites of our church, is void, unless solemnized in 
 the presence of a person in holy orders; and therefore that all mar- 
 riages not so solemnized, in those parts of the British dominions to 
 which the Marriage Act, 26 G. 2, c. 33, does not extend, are still 
 void, and will not subject the parties, if they afterwards contract a 
 second marriage in the lifetime of both, to the penalties of bigamy. 
 It is also settled by a decision of the House of Lords, that a priest in 
 holy orders cannot lawfully solemnize a marriage between himself 
 and another person; Beamish v. Beamish, 9 H. L. C. 274. (As to 
 marriages of Roman Catholics in Ireland, see R. v. Hanley, Car. 
 Sup. 254 : R. v. Orgill, 9 C. d; P. 80: R. v. Fanning, 10 Cox, 411. 
 As to French marriages, see Lacrni v. Higgins, 1 D. & R. N. P. 38; 
 3 Stark. 178. As to marriages in the houses of ambassadors, etc., 
 abroad, see 4 G. 4, c. 91 ; and as to marriages in Newfoimdlmd, 5 
 G. 4, c. 68. 
 
 If celebrated in this country, according to the rites of the esta- 
 blished church, the marriage may be proved by the production of the 
 register of the marriage from the proper custody, that is, from the 
 church itself, or from the custody of the " rector, vicar, curate or 
 other officiating minister ;" 52 G. 3, c. 146 ; Doe v. Fowler, 14 
 Q. B. 700 ; or by a copy thereof, or extract therefrom, provided 
 it be proved to be an examined copy or extract, or provided it 
 purport to be signed and certified as a true copy or extract by 
 the officer to whose custody the original is intrusted ; 14 06 15 
 Vict. c. 99, s. 14; Re Sail's Estate, 22 L. J. (Ch.j 177: Re 
 Porter's Trusts, 25 L. J. (Ch.) 688; together with some proof either 
 direct or presumptive, of the identity of the parties. (Ante, p. 268.) 
 Where the marriage was solemnized under the provisions of stat. 
 6 (fe 7 TT. 4, c. 85, the certificate authorized by the 7th section of that 
 act, and by stat. 6 c& 7 PF. 4, c. 86, s. 38, coupled with evidence of the 
 identity of the parties by persons present at the marriage, is suffi- 
 cient prima facie evidence of a valid marriage. R. v. Hawes, 1 
 Den. 270: and see R. v. Tilson, 1 F. & F. 54. Proof that the mar- 
 riage took place in a dissenting chapel, in the presence of the re- 
 gistrar, that the entry in the registrar's book was signed by a per- 
 son who proved the fact of the marriage, as a witness to the mar- 
 riage, and that the parties afterwards cohabited for some years, was 
 held to be sufficient ^Wma/acie evidence that the chapel was duly 
 registered, and was a place in which marriages might be lawfulW' 
 solemnized under the above act. R. v. Manwaring, Dears. & B. 
 132; 26 L. J. (M. C.) 10. So where it was proved that the marriage 
 
Bigamy. 885 
 
 was celebrated in a dissenting chapel by a dissenting minister in the 
 presence of the registrar of the district and two witnesses and the 
 certificate was produced, it was held unnecessary to prove that the 
 chapel was registered. R. v. Cradoch, 3 F. <& F. 837. (As to the 
 liability of the clergy to prosecution for a refusal to celebrate a 
 marriage according to the directions of that act, and as to the requi- 
 sites of the indictment and evidence in such cases, see the case of 
 R. V. James, 2 Den. 1; 3 C. <& K. 167; 19 L.J. {M. C.) 179.) The 
 prisoner's admission of a prior maniage is evidence that it was law- 
 fully solemnized. R. v. Newton, 2 M. S Rob. 503: R. v. Simmonsto, 
 1 C.&K. 164. If the marriage were by licence, and celebrated 
 under the stat. 26 Q. 2, c. 33, it was necessary, by s. 11, if either of 
 the parties were a minor at the time, to prove that the marriage was 
 solemnized with the consent of the father, guardian, or mother of the 
 minor, as required by that act ; R. v. Butler, R. c& R. 61 : R. v. 
 Morton, Id. 19, n. : R. v. James, Id. 17, per Bayley, J., in Smith v. 
 Euson, 1 PhilUmore, 287; but it seems that subsequent countenance 
 from parents or guardians, or other circumstances of a similar kind, 
 might afford ground for presuming the necessary consent. R. & R. 
 61, n. Provisions were made to remedy this by stat. 3 G. 4, c. 75, 
 and 4 G. 4, c. 17, s. 2; and the later act, 4 G. 4, c. 76, s. 14, merely 
 requires consent in such cases, but does not proceed to make void 
 marriages solemnized without such consent ; R. v. Birmingham,, 8 B. 
 & C. 29; and therefore such consent need not now be proved. And 
 see now the stat. 6 c6 7 TF. 4, c. 85, s. 25. Where a minor was 
 married without consent, in the interval between the 22nd July, 
 1822 (when the 3 G. 4, c. 75, received the Royal Assent, by which 
 s. 11 of stat. 26 G. 2, c. 33, was repealed), and the 1st September, 
 1822 (when the stat. 3 G. 4, c. 75, came into operation), it was 
 holden that the marriage was valid, because, during that interval, 
 there was no enactment in force relating to marriages by licence. 
 R. V. Waully, 1 Mood. C. C. 163. It was the intention of the Mar- 
 riage Act that the banns should be published in the true names of 
 the parties. Under the old act, 26 G. 2, c. 33, the rule on this 
 subject was, that if the banns were published in the name or names 
 totally different from those which the parties, or one of them, ever 
 used, or by which they were ever known, the marriage in pursuance 
 of that publication was invalid; and it was immaterial, in that case, 
 whether the misdescription had arisen from accident or design, or 
 whether it were fraudulent or not ; but if there were a partial 
 variation of the name only, as the alteration of a letter or letters, or 
 the addition or suppression of one christian name, or the names 
 were such as the parties had used and been known by at one time, 
 and not at another — in such cases the publication might or might 
 not be void, the supposed misdescription might be explained, and it 
 became a most important inquiry, whether it was consistent with 
 honesty of purpose, or was done from a fraudulent intention. R. v. 
 Inhabitants of Tibshelf, 1 B. & Ad. 190. But now, under the stat. 
 4 G. 4, c. 76, s. 22, in order to invalidate a marriage, the misdescrip- 
 tion in the banns must be with the knowledge of both parties. R. v. 
 Inhabitants of Wroxton, i B. <& Ad. 640. See also stat. % &1 W. i, 
 c. 85, ss. 42, 43. Where a man and woman were married in Ireland 
 with the ceremonies making a marriage of Eoman Catholics valid, 
 they declaring themselves to be Roman Catholics, it was holden that 
 the man could not, on an indictment for bigamy, set up his alleged 
 Protestantism to defeat such marriage. R. v. Orgill, 9 C. <& P. 80. 
 
886 Bigamy. 
 
 A valid marriage must be proved; per Bayley, J., in Smith v. Husoa, 
 1 Phillimore, 287 ; the law will not presume it in case of bigamy, as 
 it will in civil cases. Jd. It is not necessary, however, to prove the 
 registration of the marriage, the licence, or the publication of the 
 banns; the marriage may be proved by some person who was actually 
 present, and saw the ceremony performed. R. v. Allison, R. <& R. 
 109: R. V. Mmwaring, Dears. S B. 132; 26 L. J. (M. C.) 10. A 
 valid marriage in Scotland cannot be proved but by the evidence of 
 a person who knows the law of Scotland as to marriages. R. v. 
 Povey, Dears. 32; 22 L. J. (M. C.) 19. With respect to the place 
 where the banns may be published and a marriage solemnized, see 
 the Marriage Acts, 4 G. 4, c. 76; 6 G. 4, c. 92; and 6 d; 7 W. 4, e. 85. 
 The non-residence of the parties where the banns were published, or, 
 if by licence, where the marriage was solemnized, is imttiaterial. 4 
 G. 4, c. 76, s. 26: R. v. Hind, R. S R. 253; 6 <6 7 TF. 4, c. 85, s. 25. 
 It may be necessary to add, that the marriages of Jews, see Luido v. 
 Belisario, 1 Hag. 216: Goldsmid\. Bromer, Id. 324; and Quakers, 
 see Dean v. Thomas, Moo. d; M. 361, where both parties are Jews or 
 Quakers, were excepted out of the 4 G. 4, c. 76 (but they are now 
 provided for by the 6 tfc 7 W. 4, c. 85, s. 2, and 10 S 11 Vict. c. 58); 
 nor does that statute extend to marriages beyond seas, or in Scotland. 
 A British subject resident in England, who married a second wife in 
 the lifetime of the first, both marriages being solemnized in Scot- 
 land, was held liable to be indicted and convicted of bigamy in 
 England, under 9 G. 4, c. 31, s. 22. jB. v. Topping, Dears. Qil ; 25 
 L. J. (M. C.) 72. See as to marriages of illegitimate children by 
 licence in England, Priestly v. Hughes, 11 East, 1. 
 
 Proof, however, of a marriage which is voidable merely, will sup- 
 port an indictment for bigamy. 3 Inst. 88. Thus a marriage by a 
 minor in Ireland, without consent, which by the Irish Marriage Act 
 is voidable only within a year, wiU support a conviction for bigamy, 
 if the marriage be not vacated. R. v. Jacobs, 2 Mood. C. C. 140. 
 But it is otherwise, if the marriage be not voidable merely, but void ; 
 as, for instance, if a woman marry A., and in the lifetime of A. marry 
 B. ; and after the death of A., and whilst B. is alive, she maiTy C, 
 she cannot be indicted for bigamy, in her marriage with C, because 
 her marriage with B. was a mere nullity. 1 Hale, 693. So the mar- 
 riage of an idiot, or of a lunatic not in a lucid interval, is void, because 
 he is deemed in law incapable of entering into such a contract. 1 
 Bl. Com. 438, 439. So, if a boy under fourteen or a girl under 
 twelve contract matrimony, it is void, unless both husband and wife 
 consent to and confirm the marriage after the minor arrives at the age 
 of consent. Co. Lift. 79. See R. v. Gordon, R. db R. 48. The stat. 
 5 cfe 6 IF. 4, c. 54, s. 2, makes all marriages which thereafter should 
 be celebrated between persons within the prohibited degrees of con- 
 sanguinity or afiinity (J. e. all marriages which were at that time 
 voidable in the ecclesiastical courts by reason of their being within 
 the prohibited degrees) absolutely null and void to all intents and 
 purposes. Since this statute, therefore, a marriage with the sister of 
 a deceased wife is absolutely void; R. v. St. Giles'-in-the-Fields, 
 R. V. Chadwick, WQ.B. 173 ; 17 L. J. {M. C) 33 ; though solemnized 
 abroad, between British subjects, in a country by the law of which 
 tlie marriage would have been valid, BrooJc v. Brook, 3 Smale <& G. 
 481. ' 
 
 2. The prosecutor must prove the defendant's subsequent marriage 
 with M. Y. Formerly this must have been proved to have taken 
 
Bigamy, 88? 
 
 place in England; for it is the second marriage which constitutes 
 the offence ; 1 Hale, 692, 693 ; but now it is immaterial whether the 
 second marriage take place in England, or elsewhere, provided, if 
 the second marriage take place out of England, the defendant be a 
 subject of her Majesty. 24 & 25 Vict. c. 100, s. 57. This marriage 
 is proved in the same manner as directed ante, p. 883. It seems, 
 however, that the offence will be complete, though the defendant 
 assume a fictitious name at the second marriage. R. v. Allison, R. 
 & R. 109. And where, upon an indictment for marrying Anna T., 
 the defendant's first wife being alive, it appeared that her name was 
 not Anna but Susanna ; but the defendant wrote her name Anna in 
 the note for the publication of banns, and signed the register in which 
 she was so called ; it was held, that, although her name might not 
 be Anna, he could not defend himself on the ground that he did not 
 marry Anna T. R. v. Edviards, R. & R. 283. So also, where the 
 second wife was married by the name of Eliza Thick, which name 
 she had assumed when the banns were published, purposely, that she 
 might not be known to be the person intended (her name being Eliza 
 Brown), Chimey, B., held it to be no answer to the charge. R. v. 
 Penson, b G. & P. 412. Though the subsequent marriage would 
 have been void, as for consanguinity or the like, the defendant is 
 guilty of bigamy. R. v. Brawn, 1 C.&K. 144. See, however, R. v. 
 Fanning, 10 Cox, 411, in which the majority of the judges of the 
 Irish Court of Criminal Appeal held, that to constitute the offence of 
 bigamy, the second marriage must have been one which, but for the 
 existence of the previous maraage, would have been a valid marriage. 
 The same point was raised, but not decided, before the English Coui-t 
 of Criminal Appeal, in R. v. Clarke, 10 Cox, 474. 
 
 8. It must be proved that the first wife was alive at the time 
 the second marriage was solemnized ; which may be done by some 
 person acquainted with her, and who saw her at the time or after- 
 wards. On the trial of an indictment for bigamy it is incumbent on 
 the prosecution to prove to the satisfaction of the jury that the first 
 wife was alive at the date of the second marriage, and that is purely a 
 question of fact. The existence of the first wife at a period antece- 
 dent to the second marriage may or may not afford a reasonable 
 inference that she was living at the time o/the second marriage. If, 
 for example, it was proved that she was in good health on the day 
 preceding the second marriage, the inference would be strong, 
 almost irresistible, that she was living on the day of the second 
 marriage, and the jury would in all probability find that she was so. 
 If, On the other hand, it was proved that she was in a dying con- 
 dition on the day preceding the second marriage, and nothing fur- 
 ther was proved, they would probably decline to draw the inference 
 that she was living on the day of the second marriage. Thus the 
 question is entirely for the jury, and the law makes no presump- 
 tion either way. R.Y.Lumley,L. R.,1 C.C. R.l% ; 38L.J.(M.a) 
 86. Therefore, where, on the trial of a woman for bigamy, the proof 
 was that the second marriage took place in 1847, and that the first 
 husband had been last seen alive in 1843, and the judge directed the 
 jury that, there being no circumstances leading to any reasonable 
 inference that he had died, he must be presumed to have been jiving 
 at the date of the second mamage, this direction was held to be 
 erroneous, and the jury having found the prisoner guilty, the convic- 
 tion was quashed. Id. 
 4. If the defendant be not indicted in the county in which the 
 
888 Bigamy. 
 
 second marriage took place, it must be proved that he was appre- 
 hended, or is in custody in the county in which he is indicted. By 
 the repealed statute 1 Jac. 1, c. 11, the defendant might be tried in 
 the county where he was apprehended, but the words " in custody" 
 were not in that act. Where, the defendant being in custody in the 
 county of W. for larceny, a bill was preferred against him for bigamy 
 in another county, upon which he was detained by order of the court ; 
 it was holden sufficient to warrant the trial in the county of W., 
 because, being in custody upon a criminal charge, he was liable to be 
 tried where he was imprisoned. R. v. Gordon, R. S R. 48. Where an 
 indictment for bigamy alleged that the prisoner was apprehended in 
 Gloucestershire, and this was not proved ; Channell, B., allowed an 
 amendment, stating that the prisoner was in custody in that county. 
 R. V. Smith, 1F.<1;F.S6. 
 
 And it may be necessary to observe, that the first wife is not a 
 competent witness to prove any part of the case, either for or against 
 her husband, but the second wife is. (^Ante, pp. 274, 275.) 
 
 Evidence for the Defendant. 
 
 The following are good defences to an indictment for bigamy:— 
 
 1. That the wife or husband of the party indicted has been "con- 
 tinually absent from the other for the space of seven years then last 
 past, and has not been known to the other to be living within that 
 time;" (i. e., has not been known at any period during the seven 
 years to be alive. R. v, Cktllen, 9 C.<&P. 681 ;) 24 d 25 Vict. c. 100, 
 s. 57. Where the defendant's first wife had left him sixteen years, and 
 it was proved by the second wife that she had known him for nine 
 years living as a single man, and had never heard of the first wife, 
 who it appeared had been living seventeen miles from where the 
 defendant (a poor labouring man) resided ; he was held entitled to 
 an acquittal under this proviso. R. v. Thomas Jones, C. & Mar. 614. 
 On the trial of a woman for bigamy, whose first husband had been 
 absent from her for more that seven years, the jury found that they 
 had no evidence that, at the time of her second marriage, she knew 
 that he was alive ; but that she had the means of acquiring know- 
 ledge of that fact, had she chosen to make use of them. It was held, 
 that upon this finding the conviction could not be supported. R. v. 
 Briggs, Dea/rs. <fi 5. 98 ; 26 L. J. {M. C.) 7. See R. v. Dam, \ F. tt 
 F. 323 : R. v. Oross, Id. 510. 
 
 Where, on a trial for bigamy, absence for seven years is proved, it 
 is for the prosecution to show that the prisoner knew his wife to be 
 alive at some time during the seven years, and if they fail in doing 
 so, the prisoner is entitled to an acquittal. R. v. Cwrgerwen, L. R., 
 1C.C.R.I; 35 L. J. (M. C.) 58 : R. v. Heaton, 3F.&F. 819. And 
 although the seven years have not elapsed before the second mar- 
 riage, yet if the prisoner, at the time of the second marriage, had an 
 honest belief that his first wife was dead, he ought to be acquitted. 
 R. V. Turner, 9 Cox, 145. 
 
 2. That, before the second marriage, the party indicted was di- 
 vorced from the bond of the first marriage. 24 <& 25 Vict. c. 100, 
 s. 57. A divorce a vinculo, for adultery, in a court in Scotland, of 
 persons married in England, is not within the statute ; because no 
 sentence or act of any foreign country or state can dissolve an Eng- 
 lish marriage a vinculo, for grounds on which it is not liable to be 
 dissolved a vinculo in England. R. v. Lolley, R. & R. 237. 
 
Common Nuisance. 889 
 
 3. That the former marriage was declared to be void by the sen- 
 tence of a court of competent jurisdiction. 24 d 25 Vict. c. 100, s. 57. 
 The corresponding clause of the statute 1 Jac. 1, c. 11, a. 3, was held 
 not to extend to the sentence of an ecclesiastical court in a cause 
 of jactitation ; Duchess of Kingston's case, 11 St. Tr. 262 (see ante, 
 p. 245); and even sentences within this clause of the act may be 
 impeached on the part of the crown, upon the ground of fraud or 
 collusion. Id. 
 
 Sect. 2. 
 common nuisance. 
 
 Indictment for carrying on an Offensive Trade. 
 
 Middlesex, to wit :— The jurors for our lady the Queen upon their 
 oath present, that J. S., on the first day of June, in the year of our 
 
 Lord , at the parish of B., in the county of M., near unto divers 
 
 public streets, being the Queen's common highways, and also near 
 unto the dwelling-houses of divers liege subjects of our said lady the 
 Queen there situate and being, unlawfully and injuriously did make, 
 erect, and set up, and did cause and procure to be made, erected, and 
 set up, a certain furnace and boiler, for the purpose of boiling tripe 
 and other entrails and offal of beasts : and that the said J. S., on 
 the day and year aforesaid, and on divers other days * and times be- 
 tween that day and the day of the taking of this inquisition, at the 
 parish aforesaid, in the county aforesaid, unlawfully and injuriously 
 did boil, and cause and procure to be boiled, in the said boiler, 
 divers large quantities of tripe and other entrails and offal of beasts; 
 by reason of which said premises, divers noisome, offensive, and 
 unwholesome smokes, smells and stenches, during the time aforesaid, 
 were from thence emitted and issued, so that the air then and there 
 was and yet is greatly filled and impregnated with the said smokes, 
 smells and stenches, and was and is rendered and become, and was 
 and is corrupted, offensive, uncomfortable and unwholesome, to the 
 great damage and common nuisance of all the liege subjects of our 
 said lady the Queen there inhabiting, being, and residing, and going, 
 returning, and passing through the said streets and highways ; and 
 against the peace of our lady the Queen, her crown and dignity. 
 (2nd Count, for continuing the nuisance.) — And the jurors aforesaid, 
 upon their oath aforesaid, do further present, that the said J. S., on 
 the said first day of June, in the year aforesaid, and from that day 
 until the day O'f the takuig of this inquisition, at the parish aforesaid, 
 in the county aforesaid "[a certain other furnace and boiler, for the 
 purpose of boiling tripe and other entrails and offal of beasts, before 
 that time made, erected, and set up by certain persons to the jurors 
 aforesaid unknown, unlawfully and injuriously did continue and yet 
 doth continue ; and that the said J. S., on the said first day of June, 
 in the year aforesaid, and on divers other days], etc., as in the first 
 count, from the asterish to the end. See the following precedents; for 
 using a shop in a public market as a slaughter-house, C. C. C. 301, 
 and see 4 Went. 224 i—for erecting a manufactory for hartshorn, C. 
 C. C. 311;— for erecting a privy near the highway, 3 Went. 235 •,—for 
 ■w. Q Q 
 
890 Common Nuisance. 
 
 placing putrid carrion near the highway, 4 Went. 2\S ;— for keeping 
 a corpse unburied, S. v. Vann, 2 Den. 331; see 7 ^ 8 Vict. c. 101, 
 s. 31 \—f<rr keeping hogs near a public street and feeding them with 
 offal, C. C. C. 305, and see 2 L. Raym. 1163;— ^r keeping a fierce 
 and unruly hull in a field through which there was a footway, C. 
 C. C. 310;— ^or keeping a ferocious dog unmuzzled, C. C. C. 311 ; — 
 for baiting a bull in the king's highway, 4 Went. 213 ;—for bringing a 
 horse diseased with glanders into a public place, to the danger of 
 infecting the Queen's subjects, R. v. Henson, Dears. 24 \—for keep- 
 ing wood naphtha in a populous place, in such large quantities as to 
 excite terror and danger, R. -f. Lister, Dears, if B. 209 ; 26 L. J. 
 (M: C.) 196 \—for exposing in the public streets a child infected with 
 small-pox, R. v. Vantandillo, 4 M. S/- Sel. 73. 
 
 Fine or imprisonment, or both ; and the nuisance to he abated, if 
 alleged and proved to he then continuing. See 8 T. R. 143 ; 7 T. JR. 
 467 ; 13 East, 164. The l%th sect, of 12 Sf 13 Vict. c. 45, by which 
 any order of quarter sessions may be removed into the Queen's Bench, 
 and enforced as a rule of court, does not apply to an order of quarter 
 sessions to abate a nuisance, mode after the trial of an indictment for 
 such nuisance. R. v. Bateman, % E.Sf B. 584 ; 27 X. J. (M. C.) 
 95. See also the acts for the removal and abatement of nuisances 
 injurious to the public health ; 18 Sf 19 Vict. cc. 116, 121 ; 23 ^ 24 
 Vict. c. 77 ; 26 ^ 27 Vict. c. 117; 29 ^ 30 Vict. c. 90; 31 $• 32 Vict. 
 c. 115; 32^33 Ficit. c. 100. _ • 
 
 Since 14 Sf 13 Vict. c. 100, s. 24, the conclusion in commune nocu- 
 mentuui is not essential. S. v. Holmes, Dears. 207 ; 22 L. J. (M. C.) 
 122. 
 
 The following provisions apply to the improper construction and 
 negligent use of furnaces employed in working steam-engines — 1 If i 
 O- 4, c. 41, s. 1. — Whereas great inconvenience has arisen, andagreat 
 degree of injury has been and is now sustained by his Majesty's 
 subjects, in various parts of the United Empire, from the improper 
 construction as well as from the negligent use of furnaces employed 
 in the working of engines by steam : and whereas by law every such 
 nuisance, being of a public nature, is abateable as such by indictment; 
 but the expense attendirtg the prosecution thereof has deterred parties 
 suffering the?-eby from seeking the remedy given by law : be it there- 
 fore enacted, etc., that it shall and may be lawful for the court iy 
 which judgment ought to be pronounced in case of conviction on any 
 such indictment, to award such costs as shall be deemed proper and 
 reasonable to the prosecutor or prosecutors, to be paid by the party or 
 parties so convicted as aforesaid, such award to be made either before 
 or at the time of pronouncing final judgment, as to the court may seem 
 fit. Section ^provides and enacts, that if it shall appear to the court 
 by which judgment ought to be pronounced, in case of conviction of 
 any such indictment, that the grievance may be remedied by altering 
 the construction of the furnace so employed in the working of engines 
 by steam, it shall be lawful for the court, without the consent (f the 
 prosecutor, to make such order touching the premises, as shall be by 
 the said court thought expedient for preventing the nuisance in future, 
 before passing final sentence upon the defendant or defendants so con- 
 victed. Section 3 provides and enacts, that the provisions of this act, 
 as far as they relate to the payment of costs and the alteration of 
 furnaces, shall not extend or be construed to extend to the owners, 
 or proprietors, or occupiers of any furnaces of steam-engines erected 
 solely for the purpose of working mines of different descriptions, or 
 
Common Nuisance. 891 
 
 employed solely in the smelting of ores and minerals, or in the manu- 
 facturing of the produce of such ores or minerals, on or immediately 
 adf'oining the premises where they are raised. 
 
 Evidence. 
 
 Prove that the defendant erected the boiler in question, or that he 
 continued it after being erected by some other person; prove that 
 he used it for the purposes alleged in the indictment; prove that the 
 smoke or smell arising from it was either injurious to health, or so 
 offensive as to detract sensibly from the enjoyment of life and pro- 
 perty in its neighbourhood ; see R. v. White, 1 Burr. 333; it is not 
 necessary that the smells produced by it should be injurious to 
 health, it is sufficient if they be offensive to the sense ; R. v. Neil, 
 2 C <& P. 485; and prove that it is in a populous neighbourhood, or 
 near a highway; R. v. Papineau, 1 Stra. 686; for its being a nuisance 
 depends in a great measure upon the number of houses, and the con- 
 course of people in its vicinity; and which is a matter of fact to be 
 determined by the jury. R. v. White, supra. 
 
 The defendant, on the other hand, it seems, may prove that the 
 boiler was erected before the houses were built, or the roads con- 
 structed ; R. V. Cross, 2 C. <& P. 483; [set? quosre; see the summing- 
 up of Byles, J., in Hole v. Barlow, as reported in 27 L. J. (C. P.) 
 208, col. 2, where that learned judge observes, that " it used to be 
 thought that if a man knew there was a nuisance, and went and lived 
 near it, he could not recover, because it was said it is he that goes 
 to the nuisance, and not the nuisance to him. That used to be 
 thought 100 years ago to be the law. That, however, is not the law 
 now." If a piivate person who goes to a nuisance may maintain an 
 action in respect of it, it, is difficult to see why, where the public go 
 to a nuisance, an indictment may not be sustained for its continu- 
 ance] : or in a neighbourhood where there were already established 
 other trades, etc., emitting smells extremely offensive or insalubrious, 
 and which smells were not perceptibly increased by the alleged 
 nuisance in question. R. v. Neville, Peahe, 91 : R. v. Watts, M. & 
 M. 281. But it is no defence to say that the alleged nuisance has 
 existed for a number of years ; for no length of time will legalize a 
 nuisance. R. v. Cross, 3 Camp. 227; amd see 7 East, 199; 4 Bing. 
 N. C. 183. It had been said, that, in judging of a public nuisance, 
 the public good it does might in some cases, where the public health 
 was not concerned, be taken into consideration, to see if the public 
 benefit outweighed the public annoyance; R. v. Russell, 6 B. & C. 
 666; 9 Dowl. & Ryl. 566 ; but this doctrine was overruled in the 
 case of R. v. Ward, i A. & E. 384; 6 Nev. & M. 38; 6 L. J. (K. B.) 
 221, where it was held to be no answer to an indictment for a nui- 
 sance in a harbour, by erecting an embankment, that although the 
 work was in some degree a hindrance to navigation, it was advanta- 
 geous in a greater degree to the other uses of the port. See R. v. 
 Morris, 1 B.S Ad. 441: R. v. Tindall, 1 Nev. (6 P. 719; 6 A.(& E. 
 143; 6 L. J. (M. C.) 97: R. v. Randall, C <& Mar. 496: R. v. Betts, 
 16 Q. B. 1023: R. v. Train, 2 B. <& S. 640; 31 L. J. {M. G.) 169. 
 A statute may, however, authorize and thus justify acts which would 
 otherwise amount to a nuisance. Defendants were authorized by 
 act of parliament to make a railway, which ran by the side of a 
 highway, and to use locomotives upon the railway. Horses upon 
 the highway were frightened by the locomotives, but it was held, by 
 
 Q Q 2 
 
892 Common Nuisance. 
 
 the court of King's Bench, that the defendants were not liable to be 
 indicted for a nuisance, as the act of parliament had given them un- 
 qualified authority to use the locomotives. R. v. Pease, 4 £. <£ Ad. 
 30; 2 L. J. {M. C.) 26. 
 
 The doctrine laid down in Hole v. Barlow, 4 C. B., N. S. 334; 
 27 L. J. (C P.) 207, that an action does not lie for the reasonable 
 use of a lawful trade in a convenient place, although it may annoy 
 another, is oven-uled by Bamford v. Turnley, b B. <b S. 62, 66 ; 31 
 L. J. {Q. B.) 286 (JExch. Ckamb.). See also Cavey v. Leadbetter, 13 
 a. B., N. S. 470; 32 L. J. (C. P.) 104: St. Helen's Smelting Co. 
 (Limited) v. Tipping, 35 L. J. ( Q. B.) 66. Where works are so car- 
 ried on as to be a nuisance, it is no answer to an indictment against 
 the master for the nuisance, that he did not personally superintend 
 the works, and that he had given express orders to the workmen that 
 they should be carried on in a mode which, if followed, would have 
 prevented their causing a nuisance. iJ. v. Stephens, L. B., 1 Q. B, 
 702; 35 L. J. {Q. B.) 251. 
 
 BAWDY-HOUSES AND GAMING-HOUSES. 
 
 Statutes. 
 25 G. 2, c. 36, s. 8.] — And whereas, by reason of the many subtle 
 and crafty contrivances of persons keeping bawdy-houses, gaming- 
 houses, or other disorderly houses, it is difficult to prove who is the 
 real owner or keeper thereof, by which means many notorious 
 offenders have escaped punishment : be it enacted, that any person 
 who shall at any time hereafter appear, act, or behave him or herself 
 as master or mistress, or as the person having the care, government, 
 or management of any bawdy-house, gaming-house, or other dis- 
 orderly house, shall be deemed and taken to be the keeper thereof, 
 and shall be liable to be prosecuted and punished as such, notwith- 
 standing he or she shall not in fact be the real owner or keeper 
 thereof. 
 
 Sect. 10. — No Certiorari.'] — No indictment which shall at any time 
 be preferred against any person for keeping a bawdy-house, gaming- 
 house, or other disorderly house, shall be removed by any writ of 
 certiorari into any other court ; but such indictment shall be heard, 
 tried, and finally determined at the same general or quarter session 
 or assizes where such indictment shall have been preferred (unless 
 the court shall think proper, upon cause shown, to adjourn the same), 
 any such writ or allowance thereof notwithstanding. 
 
 8 c6 9 Vict. c. 109, s. 2 —Evidence of House being common Gaming- 
 liouscl — In default of other evidence proving any house or place to 
 be a common gaming-house, it shall be sufficient, in support of the 
 allegation in any indictment or information that any house or place 
 is a common gaming-house, to prove that such house or place is kept 
 or used for playing therein at any unlawful game, and that a bank is 
 kept there by one or more of the players, exclusively of the others, 
 or that the chances of any game played therein are not alike favourr 
 
Common Nuisance, 893 
 
 able to all the players, including among the players, the banker or 
 other person by whom the game is managed, or against whom the 
 other players stake, play or bet; and every such house or place shall 
 be deemed a common gaming-house, such as is contrary to law, and 
 forbidden to be kept by the said act of King Henry VIII. (33 II. 8, 
 c. 9), and by all other acts containing any provision against unlawful 
 gaming and gaming-houses. 
 
 17 <& 18 Vict. c. 38, s. 2.] — Where any constable or officer, autho- 
 rized as aforesaid (under the provisions of 8 (6 9 Vict. c. 109; see s. 1) 
 to enter any house, room or place, is wilfully prevented from, or 
 obstructed or delayed in entering the same, or any part thereof, or 
 where an external or internal door or means of access to any such 
 house, room, or place, so authorized to be entered, shall be found to 
 be fitted or provided with any bolt, bar or chain, or any means or 
 contrivance for the purpose of preventing, delaying, or obstructing 
 the entry into the same, or any part thereof, of any constable or 
 officer authorized as aforesaid, or for giving an alarm in case of such 
 entry, or if any such house, iroom or place, is found fitted or provided 
 with any means or contrivance for unlawful gaming, or with any 
 means or contrivance for concealing, removing, or destroying any 
 instruments of gaming, it shall be evidence, until the contrary be 
 made to appear, that such house, room or place, is used as a common 
 gaming-house within the meaning of this act, and of the former acts 
 relating to gaming, and that the persons found therein were unlaw- 
 fully playing therein. 
 
 16 & 17 Vict. c. 119 — Betting-houses.'] — Recites, that a land of 
 gaming has of late sprung up, tending to the injury and demoralization 
 of improvident persons, hy the opening of places called betting -houses 
 or offices, and the receiving of money in advance by the owners or occu- 
 piers of such houses or offices, or hy other persons acting on their behalf 
 on their promises to pay money on events of horse-races and the like 
 canting eiacies, amd enacts (sect. 1), that No house, office, room, or other 
 place, shall be opened, kept or used, for the purpose of the owner, 
 occupier or keeper thereof, or any person using the same, or any 
 person procured or employed by, or acting for or on behalf of such 
 owner, occupier or keeper, or person using the sajne, or of any person 
 having the care or management, or in any manner conducting the 
 business thereof, betting with persons resorting thereto ; or for the 
 purpose of any money or valuable thing being received by or on 
 behalf of such owner, occupier, keeper, or person as aforesaid, as or 
 for the consideration for any assurance, undertaking, promise or 
 agreement, express or implied, to pay or give thereafter any money 
 or valuable thing on any event or contingency of or relating to any 
 horse-race, or other race, fight, game, sport or exercise, or as or for 
 the consideration for securing the paying or giving by some other 
 person of any money or valuable thing on any such event or con- 
 tingency as aforesaid ; and every house, office, room or other place, 
 opened, kept or used for the purposes aforesaid, or any of them, is 
 hereby declared to be a common nuisance and contrary to law. It 
 appears that the keeping of such a house, etc., as is mentioned in this 
 section is an indictable misdemeanor, although s. 3 of the same statute 
 renders the offence punishable on summary conviction. See M, v. Cravj- 
 shaw. Bell, 303 ; 30 L. J. (M. C.) 68 : R. v. Gregory, 5 B. & Ad. 555 ; 
 3 L. J. (M. C.) 25. A temporary wooden structure four feet high and 
 
894 Common Nuisance. 
 
 without a roof, erected on land adjoining a race-course, and used h) 
 tlie proprietor for the purpose of betting vnth persons who stood outside, 
 is am " office" or '^ place," within the meaming of this sectiwi. Shaw v. 
 Morlof, L. R., 3 Ex. 137 ; 37 L. J. (M. C.) 105. 
 
 Sect. 2 — Betting-houses to be deemed Gaming-houses within 8 cfc 9 
 Vict. c. 109.] — Every house, room, office or place, opened, kept or 
 used for the purposes aforesaid, or any of them, shall be taken and 
 deemed to be a common gaming-house within the meaning of an act 
 of the session holden in the eighth and ninth years of her Majesty, 
 chapter one hundred and nine, " to amend the law concerning Games 
 and Wagers.'" 
 
 3 G. 4, c. lU.2—Ante,p. 175. 
 
 Indictment for keeping a Bawdy-house. 
 
 Middlesex, to wit : — The jurors for our lady the Queen upon their 
 oath present, that J. S. and A. his wife, on the first day of June, in 
 the year of our Lord , and on divers other days and times be- 
 tween that day and the day of the taking of this inquisition, at the 
 parish of B., in the county of M., unlawfully did keep and maintain 
 a certain common ill-governed an*disorderly house ; and in the said 
 house, for the lucre and gain of him the said J. S., certain persons, as 
 well men as women, of evil name and fame, and of dishonest conver- 
 sation, then and on the said other days and times, there unlawfully 
 and wilfully did cause and procure to frequent and come together ; 
 and the said men and women, in the said house of him the said J. S., 
 at unlawful times, as well in the night as in the day, then and on the 
 said other days and times, there to be and remain drinking, tippling, 
 whoring, and misbehaving themselves, unlawfully and wilfully did 
 permit, and yet do permit ; to the great damage and common nuisance 
 of all the liege subjects of our said lady the Queen, there inhabiting, 
 being, residing, and passing, to the evil example of all others in the 
 like case offending, and against the peace of our lady the Queen, her 
 crown and dignity. 
 
 Fine or imprisonment, or both, and, by 3 G. i, c. 114, ante, p. 175, 
 hard labour. No indictment can be preferred for keeping a bawdy- 
 house, unless one or other of the preliminary steps required by 22 Sf 23 
 Vict. c. 17, s. 1, has been taken; see ante, p. 4. A married woman 
 may be indicted with her hv&bandfor this offence. R. v. Williams, 1 
 Salk. 383. The indictment shall not be removed by certiorari, 25 
 6. -2, c. 36, s. 10 ; unless upon the part of the crown ; R. v. Davies, 
 6 T. R. 626 ; and it shall be determined at the same sessions or assizes 
 at which it is preferred, unless the court, upon cause shown, think 
 proper to adjourn the same. 25 G. 2, c. 36, «. 10; see 14 ^ 15 Vict, 
 c. 100, s. 27, ante, p. 93. This offence is triable at the court of quarter 
 sessions for a borough. R. v. Charles, L. ^ C 90; 31 L. J. (M. C.) 
 69. As to the offence of procuring the defilement of girls, see ante, 
 p. 707. 
 
 Evidence. 
 Prove that the house in question, or a room or rooms in it, were let 
 out for the purposes mentioned in the indictment. And if a lodger 
 let her apartment for the purpose of indiscriminate prostitution it is 
 
Common Nuisance. 895 
 
 as much a bawdy-house as if she held the whole house. B. v. Pier- 
 son, 2 L. Raym. 1197 ; 1 Balk. 382. It is not necessary that there 
 should be evidence of any indecency or disorderly conduct being per- 
 ceptible from the exterior of the house. R. v. Rice, L. R., 1 C. C. R. 
 21 ; 35 L. J. (M. C.) 93. 
 
 Secondly, prove that the defendants " acted or behaved as master or 
 mistress, or as the persons having the care, government, or manage- 
 ment" of the house in question ; which is sufficient evidence that the 
 defendants kept the house. 25 G. 2, c. 36, s. 8. 
 
 If a weekly tenant of a house use it as a brothel, and the landlord 
 receive no additional rent by reason of its immoral occupation, the 
 latter cannot be convicted of keeping a brothel merely because, 
 having notice of the nature of the occupation, he does not give the 
 tenant notice to quit. R. v. Barrett, L. & C. 263 ; 32 L. J. (M. C.) 
 36 ; nor would the landlord be liable to be so convicted even if at 
 the time he let the house he knew that it was to be used as a brothel, 
 and, by reason of its occupation as such, received an additional rent. 
 B. V. Stannard, L. & C. 349 ; 33 L. J. {M. C.) 61. 
 
 And thirdly, prove the house to be situate in the parish mentioned 
 in the indictment; for this being matter of local description, it must 
 be proved as laid, unless amended. (See ante, p. 200.) 
 
 Indictment far keeping a Common Gaming-house. 
 
 Commencement as in the last precedent'] — at the parish of B., in the 
 county of M., unlawfully did keep and maintain a certain common 
 gaming-house ; and in the said common gaming-house, for lucre and 
 gain, on the said first day of June, in the year aforesaid, and on the 
 said other days and times, there unlawfully and wilfully did cause and 
 procure divers idle and evil-disposed persons to frequent and come, to 
 play together at a certain unlawful game of cards called Rouge et 
 noir: and in the said common gaming-house, on the said first day 
 of June, in the year aforesaid, and on the said other days and times, 
 there unlawfully and wilfully did permit and suffer the said idle and 
 evil-disposed persons to be and remain, playing and gaming at the 
 same unlawful game called Rouge et noir, for divers large and ex- 
 cessive sums of money; to the great damage and common nuisance 
 of all the liege subjects of our said lady the Queen, to the evil example 
 of all others in the like case offending, and against the peace of our 
 lady the Queen, her crown and dignity. (2nd Count.) — And the jurors 
 aforesaid, upon their oath aforesaid, do further present, that the said 
 J. S. afterwards, to wit, on the said first day of June, in the year afore- 
 said, and on divers other days and times between that day and the 
 day of the taking of this inquisition, at the parish aforesaid, in the 
 county aforesaid, unlawfully did keep and maintain a certain common 
 gaming-room in the house of one J. N. there situate; and in the said 
 common gaming-room, etc., etc., as in the last count, only substituting 
 " gaming-room" for " gaming-house." This precedent was holden 
 good in R. v. Rogier, 2 D. d R. 431; IB.dC. 272. In R. v. Taylor, 
 3 B. (& C. 502, Holroyd, J., said that, in his opinion, it would he 
 mfficient merely to have alleged that the defemdant kept a common 
 gaming-house. 
 
 Fine or imprisonment, or both, and, by 3 G. 4:, c. 114 (ante, p. 175), 
 hard lahau/r. No indictment can be preferred for keeping a gaming- 
 
896 Common Nuisance. 
 
 house, unless one or other of the preliminary steps required Jj/ 22 c6 23 
 Vict. c. 17, s. 1, has been taken; see ante, p. 4. A married woman 
 may be indicted with her husband for this offence. R. v. Dixon, 10 
 Mod. 335. The indictment shall not be removed by certiorari, 25 G. 
 2, c. 36, s. 10 ; unless on, the part of the crown, R. v. Davies, 5 T. R. 
 626; amd it shall be determined at the same sessions or assizes at which 
 it is preferred, unless the court, upon cause shown, think proper to 
 adjourn the same. 25 G. 2, c. 36, s. 10. This offence is triable at 
 the court of quarter sessions for a borough. R. v. Charles, L. & C. 
 90; 31L.J.<iM. G)69. 
 
 Evidence, 
 
 Prove that the house in question, or a room or rooms in it, were 
 used for the purpose mentioned in the indictment See 5 T. R. 338. 
 As to the evidence sufficient for this purpose, see 8 cfc 9 Vict. c. 109, 
 s. 2, and 17 (fe 18 Vict. c. 38, s. 2 {ante, pp. 892, 893). Prove that 
 the defendant " acted or behaved as master or mistress, or as the 
 person having the care, government, or management" of the house or 
 room in question; which is sufficient evidence that the house or room 
 was kept by the defendant. 26 G. 2, c. 36, s. 8. And, lastly, prove 
 the house to be situate within the parish mentioned in the indictment. 
 {See ante, p. 200.) 
 
 Keeping and maintaining a common gaming-house for lucre and 
 gain, and causing and procuring idle and disorderly persons to come 
 there to play at Rouge et noir, and permitting such persons to play 
 there at such a game for money, is an indictable offence at common 
 law. R. V. Rogier, supra. 
 
 After an indictment has been preferred by a private prosecutor, the 
 court will allow any other person to go on with it, even against the 
 consent of the prosecutor. R. v. Wood, 3 B. & Ad. 657; 1 L. J. 
 {M. C.) 93. 
 
 NUISANCES TO HIGHWAYS. 
 
 Statutes. 
 
 5 (& 6 W. i, c. 50, «. 95 — Mode of proceeding if Obligation to 
 Repair is disputed, and where the Highway is not within the Jviris- 
 diction of a Highway Board constituted in pursuance of 25 (& 26 Vict. 
 c. 61.] — If, on the hearing of any summons respecting the repair of 
 any highway {see s. 94), the duty or obligation of such repairs is 
 denied by the surveyor on behalf of the inhabitants of the parish, or 
 by any other party charged therewith, it shall then be lawful for such 
 justices, and they are hereby required, to direct a bill of indictment 
 to be preferred, and the necessary witnesses in support thereof to be 
 subpoenaed, at the next assizes to be holden in and for the said county, 
 or at the next general quarter sessions of the peace for the county, 
 riding, division, or place wherein such highway shall be, against the 
 inhabitants of the parish, or the party to be named in such order, for 
 suffering and permitting the said highway to be out of repair; and 
 the costs of such prosecution shall be directed by the judge of the 
 assize before whom the said indictment is tried, or by the justices at 
 such quarter sessions, to be paid out of the rate made and levied in 
 
Common Nuisance. 897 
 
 pursuance of this act, in the parish in which such highway shall be 
 situate: provided nevertheless, that it shall be lawful for the party 
 against whom such indictment shall be so preferred at the quarter 
 sessions as aforesaid, to remove such indictment by certiorari or 
 otherwise into his Majesty's Court of King's Bench. 
 
 25 & 26 Vict. c. 61, ;;. 19 — Mode of proceeding if Obligation to 
 Repair is disputed, and where the Highway is within the Jurisdiction 
 of a Highway Board constituted in pursuance of this statute.'] — When, 
 on the hearing of any such summons respecting the repair of any 
 highway (sees. 18), the liability to repair is denied by the waywarden 
 on behalf of his parish, or by any party charged therewith, the justices 
 shall direct a bill of indictment to be preferred, and the necessary 
 witiiesses in support thereof to be subpoenaed, at the next assizes to 
 be holden in and for the said county, or at the next general quarter 
 sessions of the peace for the county, riding, division or place wherein 
 such highway is situate against the inhabitants of the parish, or the 
 party charged therewith, for suffering and permitting the said high- 
 way to be out of repair ; and the costs of such prosecution shall be 
 paid by such party to the proceedings as the court before whom the 
 case is tried shall direct, and if directed to be paid by the parish, 
 shall be deemed to be expenses incurred by such parish in keeping 
 its highways in repair, and shall be paid aceoi-dingly. 
 
 5 <fc 6 W. 4, c. 50, s. 96 — Levying and Application of Pines.] — No 
 fine, issue, penalty, or forfeiture for not repairing the highways, or not 
 appearing to any indictment for not repairing the same, shall here- 
 after be returned into the court of Exchequer, or other court, but 
 shall be levied by and paid into the hands of such person or per- 
 sons residing in or near the parish, township, or place, where the 
 road shall lie, as the justices or court imposing such fines, issues, 
 penalties, or forfeitures, shall order and direct, to be applied towards 
 the repair and amendment of suoh highway : and the person or per- 
 sons so ordered to receive such fine shall and is hereby required to 
 receive, apply, and account for the same, according to the direction 
 of such court, or in default thereof shall forfeit double the sum 
 received ; and if any fine, issue, penalty, or forfeiture, to be imposed 
 on any such parish, township, or place, for not repairing the highway, 
 or not appearing as aforesaid, shall hereafter be levied on any in- 
 habitant of such parish, township or place, then such inhabitant shall 
 and may make his complaint to the justices at a special sessions for 
 the highways ; and the saidjustices are hereby empowered and autho- 
 rized, by warrant under their hands, to make an order on the sur- 
 veyor of the parish for the payment of the same, out of the money 
 receivable by him for the highway rate, and shall within two months 
 next after service of the said order on him pay unto suoh inhabitant 
 the money therein mentioned. 
 
 Sect 98 — Costs.'] — It shall and may be lawful for the court before 
 whom any indictment shall be preferred for not repairing highways 
 to award costs to the prosecutor, to be paid by the person so in- 
 dicted, if it shall appear to the said court that the defence made to 
 such indictment or presentment was frivolous or vexatious. 
 
 Sect. 99 — Proceeding hy Presentment abolished.'] — From and after 
 the commencement of this act, it shall not be lawful to take or com- 
 
 qq6 
 
898 Common Nuisamce. 
 
 mehce any legal proceeding, by presentment, against the inhabitants 
 of any parish or other person, on account of any highway or turnpike 
 road being out of repair. (See R. v. St. Mawgam in Meneage, % A.A 
 E. 496; 7 L. J. (M. C.) 98; 3 Nev. & P. 502 : R. v. Denton, 18 Q. B. 
 761; 21 L. J. (M. C.) 207. 
 
 Sect. 100 — Competency of Witnesses^ — No person shall be deemed 
 incompetent to give evidence or be disqualified from giving testimony 
 or evidence in any action, suit, or prosecution, or other legal pro- 
 ceedings to be brought or had in any court of law or equity, or 
 before any justice or justices of the peace, under or by virtue of 
 this act, by reason of being an inhabitant of the parish in which any 
 offence shall be committed, or of being a treasurer, clerk, surveyor, 
 district surveyor, assistant stirveyor, collector, or other ofiicer ap- 
 pointed by virtue of this act, nor shall such testimony or evidence for 
 any of the reasons aforesaid, be rejected, or liable to be questioned or 
 set aside. {See now 6 (6 7 Vict. c. 86, and 14 & 15 Vict. c. 99, s. 2, 
 ante, p. 273.) 
 
 Sect. 107 — Certiorari^ — No rate nor any proceeding to be had 
 touching the conviction of any offender against this act, or any order 
 made, or any other matter or thing done or transacted in or relative 
 to the execution of this act, shall be vacated for want of form, or be 
 removed or removable (except as herein mentioned— i. e. in case of 
 appeal, where the sessions grant a case, s. 108) by certioram, or any 
 other writ or process whatever, into any of his Majesty's courts of 
 record at Westminster. 
 
 3 G. 4, c. 126, 8. 110 — Fine for Non-repair of Turnpike Road.'] — 
 When the inhabitants of any parish, township, or place shall be 
 indicted (or presented) for not repairing any highway, being a turn- 
 pike road, and the court before whom such indictment (or present- 
 ment) shall be preferred shall impose a fine for the repair of such 
 road, such fine shall be apportioned, together with the costs and 
 charges attending the saine, between the inhabitants of such parish, 
 township, or place, and the trustees or commissioners of such turnpike 
 road, in such manner as to the said court, upon consideration of the 
 circumstances of the case, shall seem just ; and it shall and may be 
 lawful for such court to order the treasurer of such turnpike road to 
 pay the sum so proportioned for such turnpike road out of the money 
 then in his hands, or next to be received by him, in case it shall 
 appear to such court, from the circumstances of such turnpike debts 
 and revenues, that the same may be paid without endangering the 
 securities of the creditors who have advanced their money upon the 
 credit of the tolls to be raised thereupon, which orders shall be 
 binding upon such treasurer, and he is hereby authorized and re- 
 quired to obey the same. 
 
 Indictment for Ohitructing a Common Highway. 
 
 Commencement as ante, p. 889] — and on divers other days and times 
 between that day and the day of the taking of this inquisition, in a 
 
 certain street called Thames-street, situate in the parish of , in 
 
 the city of London, being the Queen's common highway, used for all 
 the liege subjects of our lady the Queen, with their horses, coaches, 
 
Common Nuisance. 899 
 
 carts, and carriages, to go, return, pass, repass, ride, and labour, at 
 their free will and pleasure, unlawfully and injuriously did [put and 
 place three empty drays, and did then and on the said other days and 
 times there unlawfully and injuriously permit and suffer the said 
 empty drays respectively to be and remain in and upon the Queen's 
 common highway aforesaid for the space of several hours, to wit, for the 
 space of five hours on each of the said days] : whereby the Queen's 
 common highway aforesaid, then and on the said other days and 
 times, for and during all the time aforesaid on each of the said days 
 respectively, was obstructed and straitened, so that the liege subjects 
 of our said lady the Queen could not then and on the said other days 
 and times, go, return, pass, repass, ride, and labour with their horses, 
 coaches, carts, and other carriages, in, through, and along the Queen's 
 common highway aforesaid, as they ought and were wont and accus- 
 tomed to do : to the great damage and common nuisance of all her 
 Majesty's liege subjects going, returning, passing, repassing, riding, 
 and labouring in, through, and along the Queen's common highway 
 aforesaid ; to the evil example of all others in the like case offending, 
 and against the peace of our lady the Queen, her crown and dignity. 
 See precedents of obstructing a highway hy continuing a hedge across 
 it, C. C. C. 307; — hy erecting a gate across it, 6 Went. 401, 405: S. v. 
 Botfield, C. <& Mar. 151; — by building or continuing a building upon 
 it, 4 Went. 181, 191; 1 A. & E. 822; — by placing carts upon it for 
 the sale of vegetables, C. C. C. 305; — hy laying soil upon it, C. C. C. 
 303; — by laying rubbish upon it, C. C. C. 316; — by digging holes in it, 
 C. C. C. 303, 314; — by digging a horsepond and erecting a cistern in 
 it, C. C. C. BOA; — by stopping a watercourse and thereby overfiouiing 
 the highway, C. C. C. 376; — by digging trenches in order to lay down 
 pipes for the supply of gas from mains to private houses, B. v. Long- 
 ton Gas Co., 2K<&E. 651 ; 29 L. J. (M. C.) 118 i—by exhibiting 
 effigies at a vnndow, and thereby attracting a crowd, R. v. Carlile, 
 d C. & P. 636 ; — hy laying down a tramway in it, R. v. Train, 2 B. 
 &S.UQ; aiL.J.(M.C.) 169. 
 
 Fine or imprisonment, or both. Nuisamce, as far as relates to high- 
 ways, is of two kinds: positive, by obstruction; and negative, by want 
 of reparation. The latter we shall consider presently. 
 
 The trial of an indictment for obstructing a highway will not be 
 postponed until after the trial of an action by the prosecutor against 
 the defendant in respect of the same obstruction. R. v. Bowles, 2 F. 
 (& F. 371. 
 
 Evidence. 
 
 Prove the way in question to be a common highway. (See post, p. 
 906.) Prove the obstruction, as stated in the indictment; and prove 
 that it was productive of inconvenience to persons passing through 
 the street, either in carriages or on foot. Where a waggoner occu- 
 pied one side of a public street in a city, before Ms warehouses, in 
 loading and unloading his waggons, for several hours at a time, both 
 day and night, and having one waggon at least usually standing be- 
 fore his warehouses, so that no carriages could pass on that side of 
 the street, and sometimes even foot passengers were incommoded by 
 cumbrous goods lying upon the ground ready for loading; this was 
 holden to be a public nuisance, although it appeared that there wa.=; 
 room for two carriages to pass on the opposite side of the street. R. 
 V. Russell, 6 East, 427; and see R. v. Cross, 3 Camp. 227. Where 
 a highway runs between fences, the right of passage which the public 
 
900 Common Nuisance. 
 
 have along it extends prima facie, and unless there be evidence to 
 the contrary, over the whole space between the fences. R. v. United 
 Kingdom Electric Telegraph Co., 2 B. <& S. 647, n. (a); 31 L.J. 
 (if. C.) 166. A permanent obstruction erected upon a highway 
 without lawful authority, and which renders the way less commodi- 
 ous than before to the public, is a public nuisance at common law. 
 Ih. Where, therefore, the defendants placed telegraph posts upon a 
 highway and permanently kept them there, such posts being of such 
 size and solidity as to obstruct the passage. of carriages and horses, 
 or foot passengers, upon the parts of the highway where they stood, 
 the defendants were held liable to be found guilty upon an indict- 
 ment for a nuisance. And it was also held, that it made no differ- 
 ence in the defendant's liability to conviction that the posts were 
 not placed upon the hard or metalled pai-t of the highway, or upon a 
 footpath artificially formed upon it, or that sufficient space was left 
 for the public traffic. lb. On an indictment for the continuance of 
 a nuisance, viz., the continuance of a wall obstructing a highway, 
 the record of the judgment on a former indictment for the same 
 nuisance against the same defendant on which he was convicted is 
 conclusive evidence that the hcus in quo is a highway, and that the 
 wall is a nuisance. R. v. Mayhury, i F. t& F. 90. Although an act 
 of parliameiiit authorizes alterations in a public highway, yet if those 
 alterations are not made with reasonable care and cause unnecessaiy 
 danger to persons using the highway, the contractor executing the 
 works may be indicted for obstructing the highway. R. v. Burt, 11 
 Cox, 399. 
 
 Where a statute enacted, that the erection of a building within 
 certain limits should be deemed a " common nuisance," and also gave 
 a summary remedy, by proceedings before magistrates, it was held 
 that the offender might be indicted for the nuisance. R. v. Chegory, 
 h B. & Ad. 655; 3 L. J. {M. C.) 25. (See ante, p. 3; and R. v. 
 Charlesworth, 16 Q. B. 101-2.) 
 
 Indictment for Obstructing ihe Navigation of a Public River. 
 
 Gloucester, to wit : — The jurors for our lady the Queen upon their 
 oath present, that the river Severn, that is to say, a certain part of 
 the said river lying and being in the county of Gloucester, is, and 
 from the time whereof the memory of man is not to the contrary, hath 
 been, an ancient river, and the Queen's ancient and common highway 
 for all the liege subjects of our lady the Queen and her predecessors, 
 with their ships, barges, lighters, boats, wherries, and other vessels, 
 to navigate, sail, row, pass, repass and labour, at their free will and 
 pleasure, without any impediment or obstruction whatsoever. And 
 the jurors aforesaid, upon their oath aforesaid, do further present, that 
 
 J. S., on the first day of June, in the year of .our Lord , at the 
 
 parish of , in the county aforesaid, unlawfully, wilfully, and in- 
 juriously did [erect, fix, put, place, and set in the said river and 
 Queen's ancient and common highway, near a certain place called 
 Guy's Sharl, a certain snare, trap, machine, and engine commonly 
 called Putts, for the taking and catching of fish, and composed of 
 wood, wooden stakes, and twigs; and that he the said J. S., on the 
 said first day of June, in the year last aforesaid, and on divers other 
 days and times between that day and the day of the taking this in- 
 
Common Nuisance. 901 
 
 quisition at the parish aforesaid, in the county aforesaid, in the said 
 river and Queen's ancient and common highway there, the said snare, 
 trap, machine and engine, called Putts, unlawfully, wilfully, and in- 
 juriously did continue, and still doth continue, so erected, fixed, put, 
 placed, and set in the said river and Queen's ancient and common 
 highway as aforesaid]; by means whereof the navigation and free 
 passage of, in, through, along, and upon the said river Severn, and the 
 Queen's ancient and common highway, on the day and year aforesaid, 
 and on the said other days and times, hath been, and still is, greatly 
 straitened, obstructed, and confined, so that the liege subjects of our 
 said lady the Queen, navigating, sailing, rowing, passing, repassing, 
 and laboiu-ing with their ships, barges, lighters, boats, wherries, and 
 other vessels, in, through, along, and upon the said river and Queen's 
 ancient and common highway there, on the same day and year afore- 
 said, and on the said other days and times, could not, nor yet can go, 
 navigate, sail, row, pass, repass, and labour with their ships, barges, 
 lighters, boats, wherries, and other vessels, upon and about their law- 
 ful and necessary affairs and occasions, in, through, along, and upon 
 the said river and Queen's ancient and common highway there, in so 
 free and uninterrupted a manner as of right they ought, and before 
 have been used and accustomed to do; to the great damage and 
 common nuisance of all the liege subjects of our said lady the Queen, 
 navigating, sailing, rowing, passing, repassing, and labouring with 
 their ships, barges, lighters, boats, wherries, and other vessels, in, 
 through, along, and upon the said river Severn, and Queen's ancient 
 and common highway there, to the great obstruction to the trade 
 and navigation of and upon the said river, to the evil example of all 
 others in the like case offending, and against the peace of our lady 
 the Queen, her crown and dignity. 
 
 Fine or imprisonment, or both. Also, to divert a part of a public 
 river, whereby the current of it is weakened, and rendered incapable 
 of carrying vessels of the same burthen as it could before, is a common 
 nuisance. 1 Hawk. c. 75, s. 11. But if a ship or other vessel sink by 
 accident in a river, although it obstruct the navigation, yet the owner 
 is not indictable as for a nuisance, for not removing it. R. v. Watts, 
 2 Esp. 675. See R. v. Russell and others, 9 D. <& B. 566; 6 B. <& C. 
 566: R. v. Ward, 4A.dE.38i; 6 Nev. <& M. 38 ; b L. J. (K. B.) 
 221: R. V. Tindall, 1 Nev. S P. 719; (, A. & E. 143; 6 L. J. (M. C.) 
 97: R. V. Mmris, 1 B. d Ad. 441 : R. v. Randall, C. & Mar. 496 
 {ante, p. 891). 
 
 EmiderMe. 
 Prove-that the river in question is public and navigable {see R. v. 
 Beits, 16 Q. B. 1023) in that part of it which was obstructed: and 
 prove the obstruction stated in the indictment, in the same manner 
 as under the last precedent. Upon the trial of an indictment for a 
 nuisance in a navigable river, by erecting staiths therein, for loading 
 ships with coals, the juiy were directed to acquit the defendant, if 
 they thought the abridgment of the right of passage occasioned by 
 these staiths was for a public purpose, and occasioned a public 
 benefit; and if the erections were in a reasonable situation, and a 
 reasonable space was left for the passage of vessels on the river ; 
 and the judge pointed out to the jury that, by reason of the staiths, 
 the coals were supplied better and at a cheaper rate than they other- 
 wise could be, which was a public benefit; and it was holden that 
 this direction was right. R. v. Russell, supra; Lord Tenterden, C. J., 
 
902 Common Nuisance. 
 
 dissmtiente. But see R. v. Ward, i A. tS; E. 384, and the other cases 
 cited ante, ^.891. 
 
 The building of a bridge, or of a wall or embankment, partly in 
 the bed of a navigable river, does not necessarily constitute a nuis- 
 ance ; the question whether in fact it is so or not in the particular 
 instance is for a jury; and where the verdict of a jury negatives 
 any actual obstruction, that is in effect an acquittal. M. v. Belts, 
 16 Q. B. 1022 ; see R. v. CharUsworth, Id. 1012. Where the judge 
 at the trial asked the jury whether they thought the erection would 
 be " a material nuisance ;" in which case they were to find a verdict 
 of guilty: but told them that if they thought the " nuisance" was so 
 slight, uncertain and rare, that the defendant ought not to be made 
 criminally liable for it, they should acquit him; and the jury saying 
 that they considered the erection, " although a nuisance, was not 
 sufiieiently so to render the defendant criminally liable," he directed 
 an acquittal : the court held that the charge was to be understood 
 as meaning, not that a party may legally commit a small nuisance, 
 but that an obstruction might be so insignificant as not to constitute 
 a nuisance; and that the jury must be understood as finding that 
 the obstruction in question was so insignificant ; and so that there 
 was not a misdirection which would warrant a new trial. R. v. 
 Russell, 3E. (& B. 942 ; 23 L. J. (M. C.) 173 : see the judgment in R. 
 v. Tindall, & A. & E. 162; 6 L. J. (M. C.) 97. 
 
 Where the workmen of the defendant, in working his colliery, 
 stacked the refuse in such a manner that it fell into and obstructed 
 a navigable river, and the defendant was indicted for a nuisance in 
 causing such obstruction, it was held, that the facts of his not having 
 personally superintended the works, of his having given express 
 orders to the workmen that the refuse should be deposited in a par- 
 ticular place where it would not do any harm, and that it was not to 
 be thrown into the river, would not relieve him from liability upon 
 the indictment. R. v. Stephens, L. R., 1 Q. B. 702; 35 L. J. \Q. B.) 
 251, 
 
 Indictment against a Parish for not repairing a Highway. 
 
 Middlesex, to wit: — The jurors for our lady the Queen upon their 
 oath present, that, from the time whereof the memory of man is not 
 to the contrary, there was and yet is a certain common and ancient 
 Queen's highway, leading from the town of Hatfield, in the county 
 of Hertford, towai-ds and unto the city of London, used by and for 
 all the liege subjects of our lady the Queen and her predecessors, with 
 their horses, coaches, carts, and other carriages, to go, return, pass, 
 repass, ride and labour at their free will and pleasure; and that a 
 certain part of the said common and ancient Queen's highway called 
 
 lane, situate in the parish of Fryern Bamet, in the county of 
 
 Middlesex, extending from a certain field there called , unto a 
 
 certain bridge called bridge, containing in length forty yards, 
 
 and in breadth eight yards, on the first day of June, in the year of 
 
 our Lord , and continually afterwards until the day of the taking 
 
 of this inquisition, at the parish aforesaid, in the county last afore- 
 said, was and is yet very ruinous, miry, deep, broken, and in great 
 decay, for want of due reparation and amendment of the same, so 
 that the liege subjects of our said lady the Queen, during the time 
 last aforesaid, could not go, return, pass, repass, ride and labour with 
 their horses, coaches, carts and other carriages, in, through, and along 
 the Queen's common highway aforesaid, as they ought and were wont 
 
Common Nuisance. 903 
 
 and accustomed to do, without great danger of their lives, and the 
 loss of their goods ; to the great damage and common nuisance of all 
 her Majesty's liege subjects, going, returning, passing, repassing, 
 riding and labouring, in, through and along the Queen's common 
 highway aforesaid; to the evil example of all others in the like case 
 offending, and against the peace of our lady the Queen, her crown 
 and dignity:** And that the inhabitants of the said parish of Fryem 
 Bamet, in the said county of Middlesex, the common highway as 
 aforesaid, so as aforesaid being in decay, ought to repair and amend, 
 when and so often as it should or shall be necessary. 
 
 If there be other parts of the highway out of repair, within the same 
 parish, insert other counts specifying them. An indictment against 
 a parish for not repairing a horse and footway is the same as the 
 above, only substituting for the word "highway," the words "pack 
 and prime way," and for the words " with their horses, coaches, 
 carts," etc., in the commencement, substituting the words " on horse- 
 back and on foot, to go, return, pass, repass, ride, labour, and drive 
 their cattle at their free will and pleasure ;" and for the words " with 
 their horses, coaches, carts, and other carriages," near the end of the 
 count substituting the words " with their horses and cattle." I'he 
 indictment usually states the highway to have been so immemorially, 
 but this is unnecessary ; it is sufficient to allege that it is a common 
 public highway, without showing how it became so; Aspindall v. 
 Brown, 3 T. R. 265 : M. v. Tunoeston, 16 Q. B. 109 ; 20 X. J. 
 (M. C.) 46; and it is prudent to plead it thus, particularly where it 
 is not an ancient way. So, although usual, it is unnecessary to show 
 the termini of the way ; 2 Sound. 158, c. : JR. v. Haddock, Andr 145 : 
 B. V. St. Weonard's, 6 C. Sf P. 582 ; yet perhaps it is safer to do so. 
 1 Hawk. c. 76, ss. 86, s7. But if stated, they must be stated correctly, 
 for a variance between the indictment and evidence in this respect 
 would be fatal, unless amended. R. v. Great Canfield, 6 Esp. 136: 
 R. V. St. Weonard's, supra. If the highway be described as leading 
 from, the tovmship of A. unto the town of B., the termini A. and B. 
 are excluded ; and therefore, if the offence was committed in the town- 
 ship if A. the defendant must be acquitted. R. v. Botfield, C. 6c Mar. 
 151. Where a public footway led from A. to the gate of a church- 
 yard, and communicated through that gate by a public path ivhich in 
 one part of it formed an acute angle with the church, it was held that 
 it might be described as a footway leading from A. towards and unto 
 the church. R. v. Marchioness of Downshire, iA.SfJE. 232 ; 5 Nev. 
 Sf M. 662. Where the highway was described as leading from the 
 village of T. to tiie village of E , and the evidence was that it led from 
 the village ofT. into a turnpike road from A. to B., and then, after 
 passing along it for some distance, branched off to the village of E., 
 it was held well described. R. v. Turvieston, 16 Q. B. 109 ; 20 L. J. 
 (M. C.) 46. Where the indictment stated the way to be a carriage- 
 way leading from the town of A., in the. county of B., towards and 
 unto the village of E. in the same county, and the part charged to be 
 out of repair was a portion of a lane called F. lane, and it appeared 
 in evidence that, to go from the town of A. to the village of E. with a 
 carriage, a person must go four miles along the C. turnpike road, 
 then all along F. lane, and then cross the W. turnpike road, and for 
 a short distance go along a road which goes from the W. turnpike road 
 to the village of E. : it was held, that the road was not misdescribed. 
 R. v. Steventon, 1 C Sr K. 55. Where an indictment charged the 
 obstruction tf a footway from A. to C, and it appeared that the way 
 was a carriage-way from A. to B., and a footway from B. to C, the 
 
904 Common Nuisance. 
 
 obstruetion being between B. and C, this was held, if a misdescription; 
 amendable under 14 Sj- 15 Vict. c. 100, s. 1 ; B. v. Sturge, 3 E. Sf B. 
 734; 23 L.J. (M. C.) 172. The indictment, however, must show 
 with certainty the part of the road which is out of repair, how many 
 yards in length, how many in br-eadth, etc. 1 Hawk. c. 76, ss. 88, 89 ; 
 but see 2 Saund. 158 d. ; and that it is within the parish ; see Cowp. 
 m ; ST.R 509 ; 7 B.ij-C. 413 ; R. v. Upton-vn- Severn, 6C.SfP. 
 133 4 and if the parish be situate part in one county and part in 
 another, the indictment must be against the whole parish, although 
 the road out of repair were in a pari of the parish lying in one county 
 only ; R. V. Clifton, 5 T. R. 498 ; see i Burr. 2507, cont. ,• but the 
 venue must nevertheless he laid in the county where that part of the 
 road out of repair was situate. Where two parishes are separated by 
 a river, the medium filum aquae is the presumptive boundary between 
 them. R. v. Landulph, \ M. ^ Rob. 393. Where a public way 
 crosses the bed of' a river, which washes over it at every tide, and 
 leaves a deposit of mud, the parish is not bound to make U good. Id. 
 Fine. As to the levying and application of such fine, see 5 ^ 6 
 W. 4, c. 50, s. 96 (ante, p. 897) ; 1 Salk. 358 ; 13 East, 566 ; 24 L. J. 
 {Q.B.)22S; and 3 G. 4, c. 126, s. 1 10 (ante, p. 898). As to the costs, 
 see 5 ^ 6 W. 4, c. 50, ss. 95, 98 {ante, pp. 896, 897) ; and 25 ^ 26 Vict. 
 c. 61, s. 19 {ante, p. 897). There is a very material difference in the 
 power of the court as to costs where the indictment is directed undei 
 5 if 6 W. 4, c. 50, s. 95, and where it is directed under 25 if 26 Vict, 
 c. 61, s. IQ. Where it is directed under the former enactment, "the 
 costs of such prosecution shall be directed by the judge of the assize 
 before whom the said indictment is tried, or by the justices at such 
 quarter sessions, to be paid out of the rate made and levied in pur- 
 suance of this act, in the parish in which such highway shall be situate" 
 (5 ^ 6 W^ 4, c. 60, s. 95); but where it is directed under the latter 
 enactment " the costs of such prosecution shall be paid by such party 
 to the proceedings as the court before whom the case is tried shall 
 direct, and, if directed to be paid by the parish, shall be deemed to be 
 expenses incurred by such parish in keeping its highways in repair, 
 and shall be paid accordingly." (25 ^ 26 Vict. c. 61, s. 19.) The 
 5 ^ 6 PT. 4, c. 50, s. 95, gives the presiding judge no discretion as to 
 the costs, whereas the 25 Sf 26 Vict. c. 61, s. 19, gives him a discretion. 
 Where, the obligation to repair being disputed, an indictment is di- 
 rected under 5 ^ 6 VF. 4, c. 50, s. 95, and the defendants are convicted, 
 the prosecutor is entitled as matter of right to an order for costs 
 under that section. R. v. Yarkhill, 9 C. Sf P. 218; even although 
 the defendants plead guilty, R. v. Haslemere, S B. if S. 313; 
 32 Z. J. (M. C.) 30, overruling R. v. Linton, 1 Russ. 374: R. v. 
 Aston Ingham, Id.{n.): R. v. Vowchurch, 2 C. 4- K. 393: R. v. 
 Stainhall, 1 F. Sf F. 363: R. v. Langley, '2, F. Sf F. 170; or where 
 the defendants plead, and the jury find, that another person is liable to 
 repair ratione tenurse; R. v. Justices of Surrey, 1 Bail C. C. 70; 
 21 L. J. {M. C.) 195. But the court has no power to give the prose- 
 cutor his costs under that section where the defendants are acquitted on 
 the ground of the road indicted not having been proved to he a highway; 
 R. V. Chedworth, Q C. Sf P. 285: R. v. Paul, 2 M. Sr Rob. 307: 
 R. V. Heanor, 6 Q. B. 745; 14 L. J. (M. C. 38: see R. v. Down- 
 holland, 2 New Sess. Ca. 177; 15 L. J. {M. C.) 25; or to be the high- 
 way set out in the order of justices; R. v. Fifehead, 3 Cox, 59; nor 
 where the jury is discharged without coming to a verdict. R. v. 
 Heytesbuiy, 8 L. T., N. S. 315. Where the indictment is directed 
 under 25 Sf 26 Vict. c. 61, s. 19, and the road is found not to be (i 
 
Common Nuisance. 905 
 
 highiaat/, the court has no power to order costs. R. v. Buckland, 6 
 B. ^ S. 397; 34 L. J. {M. C.) 178. It has been ruled that on the 
 trial of an indictment preferred under l> &• 6 W. i, c. 50, s. 95, and 
 removed by certiorari and tried at the assizes, the judge had no power 
 to award costs for a frivolous defence under sect. 98: the power being, 
 as it was said, limited to the court at which the prosecution was ori- 
 ginally preferred ; R. V. Preston, 2 M. Sf Rob. 137; but this seems 
 not to be maintainable ; see R. v. Upper Papworth, 2 East, 413: R. 
 V. Pembndge, 3 Q. B. 901 ; 3 6?. ^ 2). 5; 12 L.J. (Q. B.) 47: R. v. 
 Preston, 7 Dowl. 593. And a judge who tries, at Nisi Prius, an 
 indictment not preferred under s. 95, removed by certiorari, has power 
 to award costs under s. 98 ; R. v. Pembridge, supra; and the Court of 
 Qmen's Bench has the like power where the indictment preferred 
 under s. 95 ftas been removed by certim-ari ; R. v. Preston, 7 Dowl. 
 593. But a judge who tries, at Nisi Prius, an indictment preferred 
 under s. 95, and remcwed by certiorari, has no power under that section 
 to award that the costs of the prosecution shall be paid out of the rate. 
 R. V. Ipstones, L. R., 3 Q. B. 216; 37 X. J (M. C.) 37, overruling 
 R. V. Eardishnd, S B. Sf B. 960; 23 X. J. (M. C.) 145, and R. v. 
 Great Broughton, 2 M. Sj- Rob. 444. Where the indictment is not 
 removed by certiorari, but is tried in the ordinary way on the crown 
 side at the assizes, the amount of the costs where ordered by the judge 
 of assize to be paid under s. 95, must be ascertained by the clerk of 
 assize. R. v. Clark, 5 Q. B. 887 ; 13 X. J. (M. C.) 91. 
 
 It has been hoMen that the 95th section (in directing payment of the 
 costs out of the rate, made and levied in pursuance of the act in the 
 parish in which the highway is situate) extends not only to rates made 
 or levied at the time of the judge's order for payment, but to the 
 highway rate in general ; and that if there be not sufficient funds in 
 the hands of the surveyors at that time, they must make a rate for the 
 purpose. And the order binds, not only the surveyors in office at the 
 time, but their successors, until the costs be paid. R. v. Eyton, 3 E. 
 ^ B. 390. 
 
 On the hearing of a summons under s. 94, if the obligation to repair 
 be denied by the parith, the special sessions have no authority to inquire 
 into the matter at all, but are bound under s 95 to direct an indict- 
 ment to be preferred. R. v. Arnould, 8 E. Sf B. 550 ; 27 X. J. {M. C.) 
 92. But tins is only where the road is admitted to be a highway, and 
 it is out of repair. Ex parte Bartlett, 30 X. J. {M. C.) 65. And so 
 the justices have no power to direct an indictment under s. \9 of the 
 25 ^ 26 Vict, c 61, where the road in question is bona fide denied by 
 the waywarden on behalf of the parish to be a highway, although he 
 admits that it is out of repair, and that if it were in fact a highway 
 his parish would be bound to repair it. R. v. Farrer, X. R., 1 Q. B. 
 558; SaL.J. {M. C.) 210. 
 
 The costs provided for by sect. 95 are not within any of the words 
 of sect. 103, and therefore cannot be recovered by distress, under the 
 proceedings directed by that section ; but a mandamus will issue to 
 compel the taking of the proper steps. R. v. Arnould, supra. 
 
 An indictment for non-repair of a highway, preferred and found at 
 the assizes, in pursuance of an <jrder of justices, made under 5^6 
 W. 4, c. 50, s. 95, may be removed by certiorari into the Court of 
 Queen's Bench, notwithstanding sect. 107. R. v. Sandon, 3 E. Sf B. 
 540 ; 23 X. J. {M. C.) 129. 
 
 General Issue. 
 And J. S. and J. N., two of the inhabitants of the said parish of 
 
"06 Ccmmon Nuisance. 
 
 Pryern Bamet, by A. B. their attorney, for themselves and the rest 
 of the inhabitants of the said parish, come into court here, and 
 having heard the said indictment read, say they are not guilty of 
 the said premises in the said indictment above specified and charged 
 upon them ; and of this they put themselves upon the country, etc. 
 (See ante, p. 138.) 
 
 Evidence for the Prosecution wnder the General Issue. 
 
 1. The prosecutor must prove that the road or street in question 
 is a public highway, that is to say, a way open and common to all 
 persons. 1 Hawh. c. 76,' «. 1; see 8 T. R. 634; 11 East, 376, n. ; 
 6 Tavmt. 125; 1 Camp. 260; 4 Camp. 16; 4 fi. tfe AU. 447; I B. & 
 Ad. 32; 2 M. & Rob. 307. And if the termini be set out in the in- 
 dictment, they must be proved as laid. R. v. Grreat Canfield, R. v. 
 St. Weonard's (ante, p. 903). A misdescription of the termini may 
 however be amended under 14 & 15 Vict. c. 100, s. 1, if the variance 
 be not calculated to prejudice the defence. R. v. Sturge, 3 E. <& B. 
 734; 23 L. J. (M. C.) 172. A road or street may ire law be a public 
 highway, though it be not a thoroughfa/re ; it is a question of fact for 
 the jury in each case whether it is so or not. Bateman v. BhieJc, 18 
 Q. B. 870. A road dedicated to and used by the public becomes 
 (subject to the provisions of the 5 <6 6 TT. 4, c. 60, s, 23) a highway 
 which the parish must repair, although neither such dedication, nor 
 such use have been adopted or acquiesced in by the parish, and 
 although the parish may in fact never have repaired the road. R. v. 
 Leake, b B.& Ad. 469 ; 2 Nev. <& M. 583 : R. v. NewhoU, 11 Cox, 
 231: see Roberts v. Hunt, 15 Q. B. 17 r R. v. Lordsmere, 15 Q. B. 689; 
 19 L. J. (M. C.) 216 ; the absence of repair by the parish is, how- 
 ever, a circumstance (to be weighed with the other evidence in the 
 case) going to prove that the road is not a public one. R. v. Leake, 
 R. v. Newbold, supra. Public user of a road for many years is evi- 
 dence from which the jury may infer a dedication, though it may not 
 be clear in whom the ownership of the soil is vested. R. v. East 
 Mark, 11 Q. B. 877; 11 L. J. (Q.B.) 177: see Poole v. Huskisson, 11 
 M. & W. 827: R. v. Petrie, i E. d: B. 737. A public user, even for 
 less than twenty years, may be sufficient evidence for this purpose, 
 if clearly shown to have been acquiesced in by the owner of the soil. 
 R. V. Charley, 12 Q. B. 516. The stat. 6 <& 6 W. i, c. 50, does not 
 apply retrospectively to roads completely public by dedication before 
 the act, but only to roads then made, and in progress of dedication. 
 R. V. West Mark, 2 M. & Rob. 305. Where a road has been dedi- 
 cated to the public, but the conditions have not yet been fulfilled 
 which, under the 23rd section of that act, make it repairable by the 
 parish, the owner of the soil is not liable to its repair. R. v. Wilson, 
 18 Q. B. 348 ; see Roberts v. Hunt,' 15 Q. B. 17. A road newly 
 formed, or continued under an award made under an Inclosnre Act, 
 is not repairable by the parish until it has been declared by justices 
 in special sessions to be fully and sufficiently formed, completed and 
 repaired, under 41 G. 3, c. 109, s. 9. R. v. EatfieW, 4: A. & E. 156; 
 even though the parish had in fact repaired it before and after the 
 award, which was made eighteen years ago. jB. v. East Hagbowne, 
 Bell, 135. There is no such inconsistency between the powers and 
 duties of commissioners of sewers to keep up a sea or river wall, and 
 a right of way enjoyed by the public along such a wall, as to prevent 
 such a right of way being acquired : — evidence of long and uninter- 
 
Common Nuisance. ' 907 
 
 rapted user may establish the right of way in such a case as well as 
 in the ordinary case of a right of way claimed and used over the 
 land of an individual. Board of Works for Greenwich District v. 
 Mavdsley, L. JR., 5 Q. B. 397 ; 39 L. J. (Q.B.) 205. 
 
 There cannot in point of law be a dedication to apart of the public, 
 but it seems that there may be a dedication pai'tial as to the use of the 
 road by the whole public ; e. g., that it shall be used on foot only ; or 
 for all purposes except carrying coals ; or that it shall continue sub- 
 ject to such use of portions of it as the occupiers of adjoining houses 
 had been accustomed to make. See Marquis of Stafford v. Coyne, 
 1 B.&C. 267: Le Neve v. Vestry of Mile End Old Toum, 8 E. & 
 B. 1054: Morant v. Chamherlin, ^ H. & N. 541. So a foot road may 
 be dedicated to and accepted by the public as a highway, subject to 
 the inconvenience of being occasionally ploughed up, and there is no 
 legal objection to such a limited dedication of a way. Mercer v. 
 Woodgate, L. R., 5 Q. B. 26; 39 L. J. (M. C.) 21. 
 
 A parish cannot be convicted for not rebuilding a sea-wall washed 
 away by the sea, over the top of which the alleged highway used to 
 pass. R. V. Paul, 2 M. <& Rob. 307. So, where part of a highway 
 had, at the time when the indictment was preferred, been destroyed 
 by the encroachments of the sea, and the surface of the existing road 
 was in good repair up to the point from which it had been destroyed, 
 at which point the road was terminated by a perpendicular cliff, 
 caused by successive encroachments ; it was held that there was no 
 obligation on the parish to provide an available carriage-way from 
 that point, in the line of the former road, down to the beach. R. v. 
 Hornsea, Dears. 291; 23 L. J. {M. C.) 59: see also R. v. Bamber, 5 
 Q. B. 279; Dav. & M. 367; 13 L. J. (M. C.) 13; post, p. 913. 
 
 The record of a former conviction of the parish or of a former judg- 
 ment against them on a presentment for non-repair of the same road 
 is, where not guilty alone is pleaded, conclusive evidence against the 
 defendants (in the absence of fraud or want of notice) that the high- 
 way is in the parish, and that the parish was liable to repair it. R. 
 V. St. Pamcras, Peake, 219: i?. v. Whitney, 7 C. d P. 208 : R. v. 
 Houghton, \ E. & B. 501. And a conviction on an indictment 
 against an adjoining parish, for non-repair of a piece of road in con- 
 tinuation -of the way in question, was held admissible in evidence to 
 prove that the way in question was a highway. R. v. Brightside 
 Bierlow, 13 Q. B. 933; 19 L. J. (M. C.) 50. 
 
 2. He must prove that that part of the road in question which is 
 out of repair is within the parish charged by the indictment, and any 
 local description given of the part out of repair must be proved as 
 laid. {See ante, p. 61.) But want of certainty in such description 
 cannot be taken advantage of under the general issue. R. v. Ham- 
 mersmith, 1 Stark. 357. 
 
 3. He must prove the part of the road so described to be out of 
 repair, as stated in the indictment. See 2 L. Raym. 1169. 
 
 4. It is not necessary, however, to prove the liability of the parish 
 to repair; for the law presumes that until the contrary is shown. 
 And this primary liability of the parish was held not to be taken 
 away even by a statute which imposed on a canal company the lia- 
 bility to repair the same highway, out of tolls granted to them for 
 that purpose. R. v. Brightside- Bierlow, 13 Q. B. 933; 19 L. J. 
 {M. C.) 50. 
 
 Evidence for the Parish, under the General Issue. 
 Under the general issue, the parish may prove that the road in 
 
908 Common Nuisance. 
 
 question is not a common highway, or that it is in good and suffi- 
 cient repair, or that the part out of repair is not within the parish. 
 2 Savmd. 161 6, in notis: R. v. Norwich, 1 Str. 181, 182, 183. But 
 they cannot prove the liability of particular persons, ratione tenurw, 
 or the like, to repair the road in question ; that defence must be 
 made the subject of a special plea, in all cases ; R. v. St. Andrew's, 
 1 Mod. 112: Anon. 1 Vent. 366; 1 Hawk, c.76, s. 9; 2 Saund. 160, ra., 
 10, unless the parish have been relieved of their liability by a public 
 statute. 3 Camp. 222: see 1 L. Raym. 725; 2 T. R. 106; IB.&Ald. 
 179. 
 
 The inhabitants of a parish are not bound to repair a way used by 
 the public and repaired by the parish for twenty years if there be no 
 owner who could dedicate it, and the repairs by the parish be shown 
 to have been begun and continued under a mistaken notion of the 
 liability to repair. R. v. Edmonton, 1 M. & Rob. 24. See R. v. 
 Leake, ante, p. 906. 
 
 After verdict for the defendants for the non-repair of a highway, 
 the court in one case refused to grant a new trial on the ground of 
 the improper rejection of evidence, but suspended the judgment, in 
 order that another indictment might be preferred. R. v. Sutton, 5 
 B. & Ad. 62 ; 2 Nev. & M. 67; 2 L. J. {M. C.) 76. But this seems 
 now to be settled otherwise : see the cases cited ante, p. 179. 
 
 Plea that others, ratione tenurse, are hownd to repair. 
 And J. S. and J. N., two of the inhabitants of the said parish ot 
 Pryern Barnet, by A. B., their attorney, for themselves and the rest 
 of the inhabitants of the said parish (excepting one A. C.) come into 
 court here, and having heard the said indictment read, say, that our 
 lady the Queen ought not further to prosecute the said indictment 
 against the inhabitants of the parish aforesaid (excepting the said 
 A. C. as aforesaid); because they say, that as to the said part of the 
 said highway in the said indictment described to be rainous, miry, 
 deep, broken, and in great decay, the said A. C, by reason of his 
 
 tenure of certain lands and tenements called , lying and being 
 
 in the said parish, ought to repair and amend the said part of the 
 said highway so alleged to be ruinous, miry, deep, broken and in 
 decay as aforesaid, when and so often as there should be occasion [as 
 the said A. C, and all those who Tield the said lands and tenements 
 for the time being, from the time whereof the memory of man is not 
 to the contrary, hitherto were used and accustomed, and of right 
 ought to do] . And this they, the said J. S. and J. N., are ready to 
 verify : wherefore they pray judgment, and that they and the rest of 
 the inhabitants of the said parish of Fryern Barnet (excepting the 
 said A. C. as aforesaid), by the court here maybe dismissed and dis- 
 charged from the said premises, in the said indictment above speci- 
 fied. See the precedents, C. C. C. 322, 391 ; 4 Went. 162, 171, 176, 
 184; 6 Went. 411. Jt is not necessary (although usual) to allege the 
 prescription as in the above precedents between the brackets; 2 Saund. 
 
 158 6, n. (9). It is usual, also, after stating the liability to repair, 
 ratione tenurse, to add a special traverse of the liability of the parish 
 to repair; but this is improper, amd probably demurrable, as being a 
 tra/oerse of a conclusion of law. See 1 Saumd. 23, n. (6) ; 2 Saund. 
 
 159 a, n. (10). See, however, R. v. Ecclesjield, 1 B.& Aid. 348. It 
 may be necessa/ry here to mention, that an individual cannot be bound 
 by prescription to repair a highway, unless it be in respect of the tenure 
 of his land, taking of toll or other profit. 2 Saund. 168/, n. (9). 
 And it seems that a parish cannot be liable by prescription to repair 
 
Common Nuisance, 909 
 
 a highway situate in another parish. R. v. Ashby Fohille, L. R., 1 
 Q. B. 213; 35 L. J. (M. C.) 154. Nor can a parish get rid of its lia- 
 bility to repair, and throw the hurden upon an individual, hy reason of ■ 
 any agreement between the individual and others. 3 East, 86. It is 
 therefore necessary, in all cases where the parish in which the road is 
 situate throws the liability to repair upon an individual or upon 
 another parish, etc., to state in the plea the consideration far such lia- 
 bility ; merely stating a prescription will not be sufficient, except in the 
 case of a corporation, sole or aggregate, who may be bovmd by a pre- 
 scription or usage, without consideration : R. v. St. Giles, b M. & Sel. 
 260 : R. V. Ashby Folville, 35 L. J. {M. C.) 154 : and except, also, 
 w]isre the liability is thrown upon u, district or township in the same 
 parish, there an immemorial custom for the district to repair all the 
 roads within it may be pleaded, without expressly stating any conside- 
 ration for it, for the consideration appears sufficiently upon the face of 
 it. R. V. Ecclesfield, I B. & Aid. 348 : and R. v. W. R. of Yorkshire, 
 i B. d Aid. 623. 
 
 To an indictment against the inhabitants of the parish of A. for 
 the non-repair of a highway within the parish, there was a plea that 
 the inhabitants of the parish of G. from time immemorial, and in 
 consideration of levying and receiving certain rates in respect of 
 certain lands in the parish of A. adjacent to the highway, had repaired 
 and ought to repair the highway so often as there should be occa- 
 sion. Replication, that the agreement in the plea mentioned was 
 duly determined by notice. On demurrer to the replication the plea 
 was held bad, since the alleged consideration was insufficient to 
 support the liability of G., because it could not be enforced, and be- 
 cause it could not from its nature be immemorial, and the repairs 
 must have been done by G. under some arrangement between the 
 two parishes which might be, and had been, put an end to. R. v. 
 Ashby Folville, L. R., 1 Q. B. 213 ; 35 L. J. {_M. C.) 154. 
 
 And hereupon N. W. \{he clerh of the peace or cleric of the arraigns'] , 
 who prosecutes for our said lady the Queen in this behalf, says, that 
 by reason of anything in the said plea above pleaded in bar alleged 
 our said lady the Queen ought not to be precluded from prosecuting 
 the said indictment against the said inhabitants of the said parish of 
 Fryem Barnet : because he says,* that the said A. C. ought not to 
 repair or amend the said part of the said highway so alleged to be 
 ruinous, miry, deep, broken and in decay as aforesaid, by reason of 
 his said tenure, in manner and form as in and by the said plea is 
 above supposed and alleged: and this he the said N. W. prays may 
 be inquired of by the country. And the said J. S. and J. N., for 
 themselves and the rest of the inhabitants of the parish of Pryern 
 Barnet aforesaid, do the like. Therefore let a jury, etc., etc. 
 
 Evidence. 
 In order to support this plea, the defendants must prove that A. C. 
 is the occupier of the lands and tenements mentioned in the plea : 
 for it is the occupier who is liable, whether he be owner or not. 
 R V. Watts, 1 Salk. 357: R. v. Buchnell, 7 Mod. 55. Prove also, 
 either that these lands were formerly granted to be holden by the 
 service of repairing this part of the highway in question, or that 
 A. G., or those who occupied the lands before him, were always used 
 and accustomed to repair it, from which circumstance such a grant 
 
910 Common Nuisance. 
 
 ■will be presumed. The liability must exist from time out of memory; 
 and therefore if it appear that the tenement in respect of which the 
 • liability is charged originated within time of memory, the plea will 
 not be supported. R. v. Hayman, M. & M. 401. Evidence of 
 reputation is admissible to prove the liability ratione tmwrm; R. v. 
 Suam, % A. <& E. 516: R. v. Bedfordshire, i E. & B. 535; over- 
 ruling R. v. Wavertree, % M. & Rob. 353: see R. v. CoUm,, 3 Cam'p. 
 444. Where the occupier of land is bound, ratione tenurce, to repair 
 a highway, and the land is afterwards divided among several occu- 
 piers, each occupier is liable for the repair of the whole, and he may 
 have his remedy over against the others for contribution. R. v. Bue- 
 cleugh, 1 Salk. 35,8; 2 Saimd. 159 n. (9). An indictment for the non- 
 repair of a highway in parish A., alleging the liability by reason 
 of the tenure of lands in A., is not supported by proof of a 
 liability to repair a way extending through A. and other parishes, 
 by reason of the tenure of a farm made up of lands in A. and the 
 other parishes. R. v. Mizen. 2 M. & Rob. 382. 
 
 The record of an acquittal upon a former indictment against the 
 parish, with respect to the same piece of highway, is no evidence for 
 the defendants; for it might have proceeded upon other grounds than 
 the non-liability of the parish to repair. R. v. 8t. Pamcras, Pealce, 
 219. So, the record of a former conviction, although conclusive 
 against the parish upon the plea of not guilty. Id.; R. v. Whitney, 
 7 C.c&P. 208: R. v. Haughton, 1 E. & B. 601; 22 L. J. (M. C.) 89, 
 unless fraud or want of notice can be shown; 2 Saund. 160 a, n. (10); 
 yet is not, it should seem, evidence against them, when they plead 
 specially that an individual or corporation, etc., are bound to repair. 
 But the record of a judgment after verdict against the parish upon 
 such a plea would, it shotdd seem, be conclusive evidence against the 
 parish, upon their pleading the same plea to any subsequent indict- 
 ment. See R. V. Eardislamd, 2 Camp. 494. 
 
 Plea that a Particular Division of the Parish is bound to repair. 
 
 And J. S. and J. N., two of the inhabitants of a certain district or 
 township called A. in the said parish of Pryem Barnet, by A. B., 
 their attorney for themselves and the rest of the inhabitants of the 
 said district or township, come into court here, and having heard the 
 said indictment read, say, that our lady the Queen ought not further 
 to prosecute the said indictment, so far as respects the inhabitants of 
 the district or township aforesaid ; because they say that the said 
 parish of Fryern Barnet is, and from time whereof the memory of 
 man is not to the contrary, hitherto has been, divided into three dis- 
 tricts or townships called A., B. and C; and that the inhabitants 
 respectively of the several districts or townships of A. and C. have, 
 from time whereof the memory of man is not to the contrary, hitherto 
 been used and accustomed to repair and amend the several and re- 
 spective highways situate and lying in their said respective districts 
 or townships, independently of each other; and that so much of the 
 
 said highway in the said indictment mentioned as leads from to 
 
 lies within the said district or township of A., and so much of 
 
 the said highway as leads from to lies within the said dis- 
 trict or township of B., and so much of the said highway as leads 
 
 fi'om to lies within the said district or township of C. (see 
 
 R. V. Bridekirh, 11 East, 304); and that the said part of the said 
 highway in the said indictment described to be ruinous, miry, deep, 
 
Common Nuisance. 911 
 
 broken and in great decay, lies in that part of the said parish of 
 Fryern Barnet called the district or township of C; and by reason 
 of the premises aforesaid the inhabitants of the said district or town- 
 ship of C. ought to repair and amend the part of the said highway 
 last aforesaid, independently of the inhabitants of the said district or 
 township of A., in the said parish; and this they the said J. S. and J. N. 
 are ready to veriiy; wherefore, for themselves and the rest of the in- 
 habitants of the said district or township of A., they pray judgment, 
 and that they and the rest of the said inhabitants of the said district 
 or township by the court here may be dismissed and discharged frop 
 the premises in the said indictment above specified. See 2 Saund. 
 160, n. ( 10) . The inhabitants of' B. should in this caseplead a similar 
 plea, and the inhabitants of C. should(l thinh)plead the general issue. 
 If the plea alleges that the particular district has been accustomed to 
 repair all the roads within it, which otherwise would be repairable by 
 the parish at large, it must show not only that the road in question is 
 mthin the particular district, but also that it is one which, but for the 
 custom, would be repairable by the parish. R. v. Mastrington, 5 A. 
 if E. 765 ,QL.J. (M. C.) 17 : and see R. v. Ecclesfield, 1 B. £f Aid. 
 348. It is necessary that the prescription should be pleaded: for if 
 judgment were given against the parish, whether after verdict on the 
 general issue, or by default, it would be conclusive evidence afterwards 
 that the whole parish is bound to repair; R. v. St. Pancras, Peake, 
 219: R. V. Whitney, 7 C. S^ P. 208 ; unless fraud could he shown. Id.; 
 or unless the defence in the former case were managed by the district 
 in which the road lay, and the other districts had no notice of the pro- 
 secution, in which case the court would give leave to the other districts 
 to plead the prescription to tfie subsequent indictment. R. v. Townsend, 
 Doug. 421 ; 2 Saund. 160 a, ra. (10) ; and see 2 Camp. 494. See the 
 precedents, C. C. C. 392; 6 Went. 394, 410, 411 ; and see particularly 
 the case of R. v. Ecclesfield, I B. S^ Aid. 348 (ante, p. 909). Where 
 an indictment charged that the inhabitants of the township of Bond- 
 gate in Auckland, Newgate in Auckland, and the borough of Auck- 
 land, in the parish of St. Andrew, Auckland, were immemorialty 
 liable to repair a highway in the town of Bishop Auckland, in the 
 parish of St. Andrew, Auckland, and no consideration was laid for 
 such liability, the indictment was held had in arrest of judgment. But 
 it was held to be no objection that the three townships were charged 
 conjointly. R. y. Bishop Auckland, \ A. S^ E. 744. 
 
 Replication. 
 Commencement as ante, p. 909, to the asterisk, and then thusl : — 
 that the inhabitants respectively of the several districts or townships 
 of A. and C. have not, from time whereof the memory of man is not to 
 the contrary, hitherto been used or accustomed to repair and amend 
 the several respective highways situate and lying in their said re- 
 spective districts or townships, independently of each other; and 
 this he the said N. W. prays may be inquired of by the country, etc. 
 {See ante, p. 129.) Or the prosecutor may traverse the fact of the part 
 of the road out of repair being within the district of C. 
 
 Evidence. 
 
 Prove that the districts of A. and C. have been accustomed, as far 
 
 as aged witnesses can recollect, each to repair the highways within its 
 
 own district. Proof of a highway extinguished, as such, sixty years 
 
 before, by an inclosure act, but since used by the public, and repaired 
 
912 Common Nuisance. 
 
 by the district charged, is not sufficient to support the indictment. 
 R. V. Westmarh, 2 M. d Rob. 305. That the way is out of repair 
 is impliedly admitted by the plea, and that the part in question lies 
 ■within the district of C. is impliedly admitted by the above replica- 
 tion. As to the effect of a record of a former conviction or acquittal 
 of the parish in evidence, see ante, pp. 907, 910. 
 
 Qucere whether, on an indictment against inhabitants of a district, 
 charging them with liability to repair a highway out of the district, 
 it is necessary to prove a specific consideration for such liability, or 
 T^hether consideration may be inferred from the fact of repair without 
 other evidence. Semble, it may. R. v. Denton, 18 Q. B. 761 ; 21 
 L. J. (M. C.) 207j n. 2. 
 
 As to the repair of roads and streets in towns governed by local 
 improvement acts, incorporating the Towns Improvement Act, see 
 Slater v. Mayor, etc., of Ashton-wnder-Lyne, 18 Q. B. 398. 
 
 Indictment against an Individual for not repairing ratione 
 tenurse. 
 Same as the precedent, ante, p. 902, to the asterisk, and then thusl : 
 — and that A. C, late of the parish of Fryern Bamet, in the county 
 aforesaid, esquire, by reason of his tenure of certain lands and tene- 
 ments called , lying and being in the said parish, ought to repair 
 
 and amend that part of the highway aforesaid, so as aforesaid being 
 ruinous, miry, deep, broken, and in decay, when and so often as there 
 shall be occasion [as the said A. C, and all those who held the said 
 lands and tenements for the time being, from time whereof the 
 memory of man is not to the contrary, hitherto were used and accus- 
 tomed, and of right ought to do, and the said A. C. still of right 
 ought to do], and that the said A. C. hath not yet done the same, etc. 
 See the precedents, C. C. C. 319; 4 Went. 190. Although usual, it is 
 not necessary to allege a prescription, as in the ahoee precedent between 
 the crotchets. 2 Saimd. 158 e, n. (9). If land adjoining a highway 
 not enclosed be afterwards enclosed by the owner (not being done by 
 virtue of a writ of ad quod damnum, or other legalproceedings),he thereby 
 renders himself liable during the continuance of the enclosure to repair 
 that part of the highway adjoining the land so enclosed; 2 Saund. 161, 
 n. (12) ; and he may be indicted for allowing it to be out ofrepaiir, the 
 indictment setting out tlie special matter. And these or the like con- 
 siderations for the liability to repair must be stated in all cases where 
 the indictment is against an individual, or against another parish than 
 that in which the road is situate ; stating a prescription alone will not 
 be sufficient; except in the case of a corporation, sole or aggregate, who 
 may be bound to repair by prescription or usage, without consideration. 
 R. V. St. Giles, bM.& Sel. 260. 
 
 General Issue. 
 And the said A. C, by A. B., his attorney, comes into court here, 
 and having heard the said indictment read, says, that he is not guilty 
 of the said premises in the said indictment above specified and 
 charged upon him ; and of this he puts himself upon the country, etc. 
 {See ante, p. 907.) 
 
 Evidence. 
 Prove the liability of A. C. to repair the part of the highway in 
 question ratione tenurce, as directed ante, p. 909. If it appear that 
 
Common Nuisance. 913 
 
 the tenement in respect of which the liability is charged, originated 
 ■within time of legal memory, the defendant must be acquitted. R. 
 ^.Haymcm, M. & M. 401 : see R. v. Sheffield Caiml Co., 13 Q. B. 913 ; 
 19 L. J. (M. C.) 44: see R. v. Ramsden, E. B. & E. 949 ; 27 L. J. 
 (M. C.) 296. And prove the highway to be out of repair, as directed 
 ante, p. 907. 
 
 On the other hand, the defendant, under the general issue, may 
 prove either that the road is not out of repair, or that, instead of his 
 being bound to repair it, the parish at large, or some district of it, by 
 prescription or custom, or some individual ratione tenuroe, is bound 
 to repair it ; a special plea is not necessary in such a case. 2 Saund. 
 159, n. (10). However, if he plead it specially, after pleading the 
 liability of the parish, district, or person, he must conclude with a 
 special traverse of his own liability. Id. 159 a, n. (10). 
 
 An infant, whose guardian in socage is in possession of the pro- 
 perty, is not such owner or occupier of the land as to be chargeable 
 ratione tenures for the non-repair of a bridge or highway; the guardian 
 must be charged. R. v. Sutton, i A.ib E.b'il; 5 Nev. & M. 353 ; 4 
 L. J. (jST. B.) 215. But it seems that infancy would not be exempt, 
 if there were no other person against whom the performance of the 
 repairs could be enforced. Id. 
 
 Where, on an indictment in the common form for not repairing a 
 highway, alleging the defendant's liability ratione tenuroe, it was 
 found by a special verdict that the defendant's land adjoined the sea ; 
 that anciently a highway went over this land, and that the defend- 
 ant's predecessors had repaired it, etc. .; that within living memory 
 the sea had encroached, and that the ancient highway was covered 
 by the sea ; that the defendant's predecessors had from time to time 
 gradually removed the ancient highway as the sea encroached, and 
 appropriated other parts of the estate for the site of a highway, so as 
 to keep a highway along the sea-coast, and that they had always 
 repaired such highway ; that the highway mentioned in the indict- 
 ment passed over a different part of the estate from that formerly 
 occupied by any part of the ancient road ; that the sea had, shortly 
 before the finding of the indictment, made an encroachment and 
 washed away pajt of the highway alleged to be out of repair, and 
 washed away large quantities of the earth, so that the residue of the 
 road was too narrow for passage, and was made to stand at the edge 
 of a precipitous bank of about seventy feet ; it was held that, on 
 these facts, the defendant was entitled to judgment. R. v. Bamher, 
 Dav. & M. 367 ; 5 Q. B. 279 ; 13 L. J. {M. C.) 13. 
 
 Where the defendant was charged with a liability to repair a high- 
 way by reason of his tenure of land called Saw-pit Field, evidence of 
 the conviction of a former owner and occupier of the Saw-pit Field, 
 for the non-repair of the same highway (on a presentment preferred 
 against him, alleging his liability to repair it ratione termrce, to which 
 he pleaded guilty) ; together with evidence of the subsequent repair 
 of the highway by the occupiers of the same lands, and of the sale of 
 them, with public notice that they were subject to such liability ; 
 was held sufficiently to prove the liability charged : and some of the 
 judges thought that the conviction was an estoppel on the defendant, 
 although not pleaded. R. v. Blakemore, 2 Den. 410 ; 21 L.J. {M. C.) 
 60 : see R. v. St. Pancras, ante, p. 907 ; Hoh. 206 ; 2 L. Raym. 1051 ; 
 1 Salh. 276 ; 4 Bing. N. C 782. 
 
 The liability to repair a highway ratione clausurce is only on the 
 
 w. ^ ^ 
 
914 Common Nuisance. 
 
 occupier of the lands inclosed, and not on the owner. R. v. Bamsden, 
 E. B. & E. 949 ; 27 L. J. (M. C.) 296. 
 
 Indictment against a particular District of a Parish for not 
 Repairing. 
 Same as the precedent, ante, p. 902, to the dsterisk, except that instead 
 of saying, " situate, lying, and being in the parish of Pryern Barriet," 
 you say, " situate, lying, and being in a certain district ot toVmship 
 called C., in the parish of Fryem Bafnet," etc. ; arvd then thus] : — 
 and that the inhabitants of the said district or township of C, in the 
 said parish of Fryem Barnet, in the county afoteSald, have, from 
 time whereof the memory of man is not to the contrary, hitherto 
 been used and accustomed to repair and amend that part of the high- 
 way aforesaid, so as aforesaid being ruinous, miry, deep, broken, and 
 in decay, when ahd so often as there should be occasion, and that the 
 said inhabitants of the said district or township aforesaid have not 
 yet done the same, etc. See the precedents, 4 T^e«*. 157, 160, 178, 
 184, C. a C. 320 ; and see 2 Sa:und. 158/, n. (9) ; R. V. Ecchfeld, 1 
 B. & Aid. 348. Whether am indictment may he sufficient, which only 
 alleges that the defendants, the common highway aforesaid, to <M afore- 
 said being in decay, etc., from time whereof, etc.. Ought to repair and 
 still ought to repair, etc., quaere: See R. v. Tryddyn, 21 L. J. (M. C.) 
 108. Or the liability of the township may be Set 6ut specially, as in 
 the plea, ante, p. 910. See R. V. Netherthong, 2 £. S Aid. 179 ; atid 
 vide infra. 
 
 General Issue, 
 
 And J. S. and J. N., two of the inhabitants of the said district or 
 township called C, in the said parish of FtygM Barnet, by A. B., their 
 attorney, for themselves and the rest Of the inhabitants of the eaid 
 district or township, come into court here, and having heard the Said 
 indictment read say, that they are not guilty of the said pretoises in 
 the said indictment above specified and charged upon thein : and of 
 this they put themselves upon the couiitry, etc. (S« ante, p. 907.) 
 
 Evidence. 
 
 Prove the liability of the township of C. tO repair the part of the 
 highway in question, by proving that the township has been used and 
 accustomed to do so heretofore. (See ante, p. 911.) And prove the 
 highway to be out of repair, as directed ante, p. 907. 
 
 On the other hand, the defendants, under the general issue, may 
 prove either that the road is in repair, or that, instead of their dis- 
 trict being bound to repair it, the parish at large, or some other 
 district in the parish, or some individual ratione tenures, is bound to 
 repair it : a special plea is not necessary in such a case. 2 Sawnd. 
 159, n. (10). However, if it be pleaded specially, after pleading the 
 liability of the parish, district, or person, the plea, must conclude with 
 a special traverse of the liability of the district indicted. Id. 159 o, 
 n. (10). See the precedent, 4 Went. 161, 166 ; 6 Went. 414. If indeed 
 the indictment charge the district or township with the repair Of all 
 roads within it generally, in that case a special plea would be neces- 
 sary ; for such a prescription makes the township, for all legal pur- 
 poses, as to the repair of roads, a parish, and they must plead, etc.. 
 
Common Nuisance. 915 
 
 in the same manner as a parish would under the same circumstances. 
 R. V. Hatfield, i B. <& Aid. 76. 
 
 Indictment for not repoAring a Bridge. 
 Middlesex, to wit: — The jurors for our lady the Queen upon their 
 oath present, that from time whereof the memoiy of man is not to the 
 contrary, there was and yet is a certain common public stone bridge, 
 commonly called D. bridge, situate and being in the several parishes 
 of B. and C, in the county of M., in the Queen's common highway 
 leading from the town of H., in the county of H., towards and unto 
 the city of London, used by and for all the liege subjects of our said 
 lady the Queen and her predecessors, on foot, and with their horses, 
 coaches, carts, and other carriages, to go, return, pass, repass, ride, 
 and labour, at their free will and pleasure ; and that the said bridge, 
 
 on the first day of June, in the year of our Lord , and continually 
 
 afterwards until the day of the taking of this inquisition, at the several 
 parishes of B. and C. aforesaid, in the county aforesaid, was and yet 
 is very ruinous, broken, dangerous, and in great decay, for want of 
 upholding, maintaining, amending, a,nd repairing the same, so that 
 the liege subjects of our said lady the Queen upon and over the said 
 bridge, with their horses, coaches, carts, and other carriages, could 
 not during the time last aforesaid, nor yet can, go, return, pass, 
 repass, ride, and labour, as they before used and were accustomed to 
 do, and still of right ought to do, without great danger of their lives, 
 and the loss of their goods ; to the great damage and common nuis- 
 ance of all the liege subjects of our said lady the Queen, upon and 
 over the said bridge, going, returning, passing, repassing, riding and 
 labouring ; and against the peace of our lady the Queen, her crown 
 and dignity : And that the said bridge is not within any city or town 
 corporate : and that it cannot be known and proved that any hun- 
 dred, riding, wapentake, city, borough, or parish, or any person cer- 
 tain, or any body politic, ought of right to make, rebuild, repair, or 
 amend the said bridge ; and that the inhabitants of the whole county 
 of Middlesex aforesaid ought to make, rebuild, repair, and amend the 
 said bridge, when and so often as it should or shall be necessary ; 
 according to the form of the statutes in such case made and provided. 
 See the precedents, C. V- C. 313; 6 Went. 427. If the bridge be within 
 a city or town corporate, the inhabitants of such city or town corporate 
 shall repair it ; if within a riding, the inhabitants of the riding shall 
 repair it ; but, in all other cases, the inhabitants of the county at large 
 are liable to repair it ; 22 H. 8, u. 6 (and see 2 East, 342 ; 2 M. Sr 
 Sel. 513, 262 ; 1 B. Sf Ad. 289) ; unless they can throw the burthen of 
 it upon some individual, who ratione tenure is bound to repair it, 
 or upon the inhabitants of some parish or district (as a hundred) 
 who by immemorial custom are bound to repair it; and imme- 
 morial usage alone is a sufficient ground for an indictment against 
 a parish for not repairing a bridge. S. v. Hendon, 4 B. ^ Ad. 
 628; 2 L. J. (M. C.) 55: R. v. Sutton, S A. Sj- K 597; 4 L. J. 
 (K. B.) 215. Hundreds are not relieved by 5 S)- 6 W. i, u. 50, from 
 liability to repair hundred bridges. S. v. Inhabitants of Chart 
 and Longliridge, 1. H., i C. C. R. 237 ; 39 L. J. (M. C.) 107. See 
 the precedents, 4 Went. 178, 187; and see 5 Burr. 2594; IZ East, 
 220; 1 M. Sj- Sel. 435; 12 East, 192; 16 East, 223; 4 B. Sf Aid. 
 623 ; 6 i>. ^ -R. 231 ■ i B. Sj- C. 194 : and generally Burn's J., by 
 Chitty, tit. " Bridges." The Isle of Ely is, by virtue ofstat. 7 W. i 
 
 R R 2 
 
916 Common Nuisance. 
 
 £r 1 Vict. c. 53, s. 7, and 6 ^ 7 VF. 4, c 87, within tloe word " Biding," 
 in the 22 H. 8, c. 5. R. v. isZe o^' ^ij,, 19 X. y. (itf. C.) 2-23. 
 Where a borough, incorporated by charter with a non-intromittant 
 clause, was enlarged, under the stats. 2 ^^^ 3 W. 4, c. 64, «. 35, and 
 
 5 ^ 6 M^. 4, t;. 76, i. 7, by the addition of a parish within the same 
 county, containing a bridge which until that time the county had re- 
 paired, it was held that this transfer of the new district did not of 
 itself, without evidence that the borough had been used to maintain 
 any bridges, render the borough liable to repair such bridge. R. v. 
 New Sarum, 7 Q. B. 941 ; 15 L. J. (M. C.) 15. If part of a bridye 
 be toithin one county, etc., and the other part within another county, 
 etc., each county shall repair that part of the bridge which is within it. 
 '22 B. 8, c. 5, s. 3 : see jR. v. Penegoes and Machynlleth, Z D. Sf R. 
 383 ; Q, B. if C. 1 66. Besides the bridge, the county is bound to re- 
 pair 300 yards of the road adjoining each end of it. 22 H. 8, e. 5, ». 9 ; 
 and see 7 East, 583 ; 5 Taunt. 284; 14 East, 477 ; 4 5. ^ Aid. 623. 
 By 43 G. 3, c. 59, s. 5, no bridge thereafter to be built in any county, 
 by or at the expense of any individual or private person, body politic 
 or corporate, shall be deemed a county bridge, unless erected in a sub- 
 stantial and commodious manner, under the direction or to the satis- 
 faction of the county surveyor, etc. See R. v. Derbyshire, 2 B.Sf Ad. 
 
 1 47 ; \ L.J.{M.C.)\5: R. v. Lancashire, '2 B. if Ad. 813; \L.J. 
 (M. C.) 3: R. V. Gloucestershire, C. 6f Mar. 506. Where a county 
 bridge, which had been washed atoay, was, after the 43 G. 3, c. 59, 
 built wider than before, and without notice to the county surveyor, by 
 the parish, partly with the old materials, and in the same line of pas- 
 sage over the river, it was held that this was not a new bridge within 
 the meaning of the act, and that the county was still liable to repair it, 
 R. V. Devon, oB.Sc Ad. 383 ; 2 L.J. {M. C.)li; 2 Nev. &■ M. 21-2 : 
 see R. V. Adderbury East, Dao. ^ M. 324; 13 Z. J. (M. C.) 9. 
 The county are not compellable to widen a bridge, R. v. Devon, 
 i B. 4r C. 670 ; 7 D. if R. 147. A foot-bridge, formed by three 
 planks, nine or ten feet long, and a hand-rail, which carried a public 
 footpath over a small stream, was held not to be such a bridge as the 
 county was bound to repair. R. v. Southampton, 18 Q. B. 841. 
 
 As to what is a bridge, and what a culvert, and so part of the high- 
 way, see R. V. Oxfordshire, \ B. If Ad. 289 : R. v. Whitney, 7 C. Sf 
 P. 208; 4 L. J. (M. C.) 86. R. v. Derbyshire, HG-irD. 97; 11 
 L. J. {M. C.) 51. 
 
 The pleas and evidence are the same, mutatis mutandis, with the 
 pleas and evidence in the case of an indictment for not repairing a 
 highway. (See ante, p. 902, et seq.) 
 
 The costs of a frivolous defence to an indictmentfor non-repair of a 
 county bridge, though they cannot be given under the 5 ^ 6 W. 4, c. 50 
 {which does not apply to county bridges, see sect. 5, or to hundred 
 bridges ; R. v. Inhabitants of Chart and Longbridge, L. R., I C. C. 
 R. 237 ; 39 L. J. (M. C.) 107), may be obtained, on the certificate of 
 the judge that the defence was frivolous, under the 13 G. 3, c. 78, 
 s. 64, iohich is incorporated into the 43 G. 3, c. 58, s. 1, and for this 
 purpose not repealed by the b Sf Q W.i, c. 50. R. v. Merionethshire, 
 
 6 Q. B. 343; 13 L. J. {M. C.) 158. So, also, the provision of 13 
 G. 3, c. 78, s. 24, as to presentments of highways, which by 43 G. 3, 
 c. 58, s.\, is incorporated into that act, is not, as to bridges, repealed 
 Ay 5 ^ 6 TT. 4, c. 50. R. v. Breconshire, 16 Q. B. 813; 18 L. J. 
 {M. C.) 123. 
 
 See a precedent of an indictment for not repairing a county gaol, 
 C. C. C. 318. 
 
Carriage <md Deposit of Dangerous Goods. 917 
 
 Other Cases of Indictable Nuisances. 
 
 1. By 6tat. 10 <& 11 W. 3, c. 17, s. 1, all lotteries are declared to be 
 public nuisances (unless specially sanctioned by act of parliament): 
 and by reason of such declaration the keeping of a lottery is indict- 
 able, although the second section of the statute subjects the doing so 
 to a penalty. R. v. Orawshaw, Bell, 303 ; 30 L. J. (M. C.) 58. 
 2. Stage-plays unlicensed, booths and stages for rope-dancers, 
 mountebanks, and the like, are also public nuisances. 4 Bl. Com. 
 167, 168. 3. The making and selling of fireworks and squibs, or 
 throwing them about in the street, is declared to be a common nui- 
 sance by stat. 9 (fe 10 W^. 3, c. 7. 4. A common scold is deemed a 
 public nuisance. 4 Bl. Com. 109. 5. A herbalist who publicly ex- 
 poses in his shop, on a highway, a picture of a man naked to his 
 waist and covered with sores, is guilty of a nuisance, although there 
 is nothing immoral or indecent in the picture, and the motive for its 
 exhibition is innocent. B. v. Grey, ^ F. & P. 73. 6. Negligently 
 blasting stone in a quarry, and thereby projecting large pieces of 
 stone, so as to endanger the safety of persons in houses and on the 
 highways adjoining the quarry, is a misdemeanor indictable at com- 
 mon law. R. V. Mutters, L. & C. 491; 34 L. J. (if. C.) 22. 
 
 Sect. 3. 
 carriage and deposit op dangerous goods. 
 
 Statute. 
 29 cfc 30 Vict. c. 69, s. 1 — Nitro-glycerine to he deemed dangerous.'] — 
 The goods or article commonly taiown as nitro-glycerine or glonoine 
 oil shall be deemed to be specially dangerous within the meaning of 
 this act. 
 
 Sect. 2 — Other goods may he declared so hy order in council.'] — Her 
 Majesty may from time to time, by order in council, declare that 
 any goods named in any such order (other than nitro-glycerine or 
 glonoine oil) are to be deemed specially dangerous within the mean- 
 ing of this act, and may from time to time amend or repeal any such 
 order ; and any goods which are by any such order declared to be 
 specially dangerous shall, so long as such order is in force, be deemed 
 to be specially dangerous within the meaning of this act. 
 
 Sect. 3— Such goods to he marked and notice to he given of their 
 character.] — No person shall deliver any goods which are specially 
 dangerous [see ss. 1, 2, supra] to any warehouse owner or carrier 
 [see s. 7, infra], or send, or carry, or cause to be sent or carried any 
 such goods upon any railway, or in any ship to or from any part of 
 the United Kingdom, or in any other public conveyance, or deposit 
 any such goods in or on any warehouse or quay, unless the true name 
 or description of such goods, with the addition of the words, specially 
 dangerous, is distinctly written, printed or marked on the outside of 
 the package, nor, in the case of delivery to or deposit with any ware- 
 house owner or carrier, without also giving notice in writing to him 
 
918 Carriage, and Deposit of Dangerous Goods. 
 
 of the name or description of such goods, and of their being specially 
 dangerous. And any person who commits a breach of this enactment 
 shall be liable to a penalty not exceeding five hundred pounds, or at 
 the discretion of the court to imprisonment, with or without hard 
 labour, for any term not exceeding two years. 
 
 Sect, 4 — Provision for case of absence of knowledge of naiume of 
 goods.l — Provided always, as follows: (1.) Any person convicted of 
 a breach of the last foregoing enactment shall not be liable to impri- 
 sonment, or to a penalty of more than two hundred poimds, if he 
 shows to the satisfaction of the court and jury before whom he is con- 
 victed that he did not know the nature of the goods to which the in- 
 dictment relates. (2.) Any person accused of having committed a 
 breach of the said enactment shall not be liable to be convicted 
 thereof if he shows to the satisfaction of the court and jury before 
 whom he is tried that he did not know the nature of the goods to 
 which the indictment relates, and that he could not, with reasonable 
 diligence, have obtained such knowledge. 
 
 Sect. b—As to forfeiture of such goods.] — Where goods are deli- 
 vered, sent, carried, or deposited in contravention of the said enact- 
 ment, the same shall be forfeited, and shall be disposed of in such ' 
 manner as the commissioners of her Majesty's Treasury or (in case 
 of importation) the commissioners of customs direct, whether any 
 person is liable to be convicted of a breach of the said enactment 
 or not. 
 
 Sect. 7 — Interpretation.'] — In construing this act, the term ware- 
 house owner shall include all persons or bodies of persons owning or 
 managing any warehouse, store, quay, or other premises in which 
 goods are deposited; and the word carrier shall include all persons 
 or bodies of persons carrying goods or passengers for hire by land or 
 water. 
 
 32 S 33 Vict. c. 113 (The Nitro-Olycerine Act, 1869), s. 2^Inter- 
 pretation.] — In the interpretation of this act, " nitro-glycerine" means 
 the substance called or known by that name, or as glonoine oil, and 
 this act extends to every substance having nitro-glycerine in any 
 form as one of its component parts or ingredients, in the same man- 
 ner as if it were nitro-glycerine: "court" includes any justices, 
 sheriff, or magistrate exercising jurisdiction under the powers of this 
 act: "person" includes body corporate. 
 
 Sect. 3 — Importation or exportation of nitro-glycerine a misdemeanor 
 — Exceptions.] — Save as hereinafter mentioned no person shall, after 
 the passing of this act, bring into any port or harbom- of the United 
 Kingdom, or ship or unship on, from, or near the coasts of any part 
 of the United Kingdom, any nitro-glycerine. {See s. 2, supra.) 
 
 If any person acts in contravention of this section he shall be 
 guilty of a misdemeanor, and shall, at the discretion of the court 
 [see s. 2, supra], be liable to be imprisoned, with or without hard 
 labour, for any term not exceeding one year, or to pay a penalty not 
 exceeding five hundred pounds; and all nitro-glycerine [see s. 2, 
 supra] brought into any port or harbour, or shipped or unshipped in 
 contravention of this section shall be forfeited. 
 
 If it is shown to the satisfaction of one of her Majesty's principal 
 
Carnage and Deposit of Dangerous Goods. 919 
 
 .secretaries of state that any substance having nitro-glycerine in any 
 form as one of its component parts or ingredients can safely be 
 brought into any port or harbour of the United Kingdom, or be 
 safely shipped or unshipped on, from, or near the coasts of any port 
 of the United Kingdom, he may by general or special licence autho- 
 rize the introduction or exportation of such substance into or from 
 the United Kingdom on such conditions as he thinks expedient. 
 
 No penalty shall be inflicted in pursuance of this section on any 
 person bringing nitro-glycerine [s«e s. 2, supra] into any port or 
 harbour of the United Kingdom who proves to the satisfaction of 
 the court [see s. 2, supra'} before which he is tried that he was driven 
 into such port or harbour by stress of weather, that witli as little 
 delay as possible he gave notice to the authorities having jurisdic- 
 tion in such port or harbour of the arrival of the ship bringing nitro- 
 glycerine [see s. 2, sttpraj, and that he conformed to any directions 
 which may have been given him by such authorities. 
 
 Sect. 4 — Manufacturing, &c. nitro-glycerine a misdemeanor — Excep- 
 tions.^ — No person shall, after the expiration of four weeks from the 
 passing of this act, manufacture, sell, carry, or otherwise dispose of 
 or have in his possession any nitro-glycerine [see s. 2, mpra] in any 
 part of the United Kingdom^ except in accordance with a general or 
 special licence issued by one of her Majesty's principal secretaries of 
 state. The said secretary of state may annex any absolute prohibi- 
 tions or any restrictions to any licence granted by him in pursuance 
 of this act, limiting the manufacture, sale, carriage, disposal, or stor- 
 age of nitro-glycerine [see s. 2, supra'], to particular persons, and to 
 particular places, and for particular purposes, or otherwise prohibit- 
 ing or restricting the manufacture or use thereof in such manner as he 
 thinks fit ; he may also, in any case where he allows nitro-glycerine 
 [see s. 2, supra'] to be carried, prohibit the carriage thereof along 
 any public way, and add restrictions as to the persons by whom, 
 the mode in which, the places from and to which, and the quantity 
 in which any nitro-glycerine [see s. 2, supra] is to be carried, and 
 generally may make such provisions and restrictions, whether relat- 
 ing to the matters aforesaid, or any of them, as he thinks fit for the 
 protection of the public against the danger arising from the manu- 
 facture, sale, carriage, disposal, or storage of nitro-glycerine. {See 
 s. 2, supra.) 
 
 If any person manufactures, sells, carries, or otherwise disposes of 
 or has in his possession any nitro-glycerine [see s. 2, supra] without 
 a general or special licence in pursuance of this act, he shall be 
 guilty of a misdemeanor, and shall, in the discretion of the court [see 
 s. 2, supra], be liable to be imprisoned, with or without hard labour, 
 for any period not exceeding one year, or to pay a penalty not ex- 
 ceeding five hundred pounds. 
 
 The said secretary of state may annex to the breach of the condi- 
 tions of any licence granted by him any punishment or penalty, not 
 being greater than the punishment or penalty to which a person 
 manufacturing, selling, carrying, disposing of, or having in his pos- 
 session any nitro-glycerine [see s. 2, supra] without a general or spe- 
 cial licence is made liable by this act; and any pecuniary penalty so 
 annexed may be recovered summarily if it does not exceed one hun- 
 dred pounds. 
 
 Provided that no penalty shall be inflicted in pursuance of this 
 act on any carrier, wharfinger, or warehouseman, who satisfies the 
 
920 Open and Notorious Lewdness. 
 
 court [see s. 2, supra] that, after using all due precautions, the nitro- 
 glycerine [see s. 2, supra] was carried by him, or was in his posses- 
 sion without his knowledge. 
 
 Sect. 5 — Provisions as to persons having nitro-glycerine in possession 
 at commencement of Act] — Every person having any nitro-glycerine 
 ,[see s. 2, supra] in his possession at the time at which this act is 
 passed shall give notice thereof in writing to the said secretary of 
 state, stating such particulars in relation to the quantity, storage, 
 and otherwise as the said secretary of state may require, and the said 
 secretary of state may thereupon make such order in respect to the 
 disposal thereof as he thinks just. 
 
 Any person failing to give such notice as required by this section 
 will be subject to the same punishment and penalty, to which a per- 
 son manufacturing, selling, carrying, disposing of or having in his 
 possession any nitro-glycerine [see s. 2, supra] without a licence is 
 made liable by this act. 
 
 Sect. 4. 
 open and notorious lewdness. 
 
 Indictment against a Man for publicly exposing his naked Person. 
 
 Middlesex, to wit : — The jurors for our lady the Queen upon their ' 
 oath present, that J, S., being a scandalous and evil- disposed person, 
 and devising, contriving, and intending the morals of divers liege 
 subjects of our lady the Queen to debauch and corrupt, on the first 
 
 day of June, in the year of om* Lord , on a certain public and 
 
 common highway situate in the parish of , in the county of M., 
 
 in the presence of divers liege subjects of our said lady the Queen 
 then there being, and within sight and view of divers other liege 
 subjects through and on the said highway then there passing and 
 repassing, unlawfully, wickedly and scandalously did expose to the 
 view of the said persons so present, and so passing and repassing as 
 aforesaid, the body and person of him the said J. S. naked and un- 
 covered, for a long space of time, to wit, for the space of one hour ; 
 to the great scandal of the said liege subjects of our said lady the 
 Queen, to the manifest corruption of their morals, in contempt of our 
 said lady the Queen and her laws, to the evil example of all others 
 in the like case oflfending, and against the peace of our lady the 
 Queen, her crown and dignity. The allegation, that the offence was 
 committed ''within sight and view of divers liege subjects" etc., appears 
 to be necessary. See S. v. Webb, 1 Den. 338 ; 2 C. (& K. 933; 18 L. J. 
 (M. C.) 39. Since 14 <fc 15 Vict. c. 100, s. 25 (even if before) the in- 
 dictment need not conclude in commune nocumentum. R. v. Holmes, 
 Dears. 207; 22 L. J. (M. C.) 122. 
 
 Fine or imprisonment (and by li d; 15 Vict. c. 100, s. 29, amte, p. 
 175, ha/rd labour), or both. See B. v. Sedley, 10 St. Tr. App. 93 ; 
 1 Sid. 168; 1 Keb. 620: and see R. v. Gallard, 1 Sess. Ca. 231: 
 R. V. Crundem, 2 Camp. 89: R. v. Justices of Newcastle-upon-Tyne, 1 
 B. & Ad. 933 : R. v. Rowed, 3 Q. B. 180 ^IG.&D. 518 ; 11 £. J. 
 (M. G)74 (ante,p.n8). 
 
 An indecent exposure, though in a place of public resort, if visible 
 
Gaming. 921 
 
 only by one person, is not indictable as a common nuisance. R. v. 
 Webb, 1 Den. 338; 2 C. db K. 933: R. v. Watson, 2 Cox, 376: see -B. v. 
 Elliot, L. & C. 103. An omnibus is a public place sufficient to 
 support the indictment. R. v. Holmes, ante,p. 920. But an enclosed 
 urinal, to which, however, the public have free access, in a public 
 market, is not. R. v. Orchard, 3 Cox, 248. It is not necessaj-y, 
 however, that the exposure should be made in a place open to the 
 public, it is sufficient if it be made where a number of persons may 
 be offended by it, and several see it. R. v. Thallman, L. & C. 326; 
 33 L. J. {M. C.) 58. 
 
 As to selling obscene prints or books, see ante, p. Ill; as to keeping 
 a bawdy-house, see ante, pp. 892, 894. 
 
 Sect. 5. 
 
 GAMING. 
 
 Statute. 
 
 8 <fi 9 Vict. c. 109, s. 17 — Cheating at play punishable as obtaining 
 Money by false pretences.'] — Every person who shall by any fraud or 
 unlawful device or ill-practice in playing at or with cards, dice, 
 tables, or other game, or in bearing a part in the stakes, wagers, or 
 ^adventures, or in betting on the sides or hands of them that do play, 
 or in wagering on the event of any game, sport, pastime, or exercise, 
 win from any other person, to himself, or any other or others, any 
 sura of money or valuable thing, shall be deemed guilty of obtaining 
 such money or valuable thing from such other person by a false 
 pretence, with intent to cheat or defraud such person of the same, 
 and being convicted thereof shall be punished accordingly. 
 
 Indictment for Winning Money at Cards, etc., by Fraud. 
 
 Berks, to wit: — The jurors for our lady the Queen upon their oath 
 present, that W. M., on the 9th day of June, in the year of our Lord 
 1856, by fraud, unlawful device and ill-practice in playing at and with 
 cards (" ca/rds, dice, tables or other game, or in bearing a part in the 
 stakes, wagers, or adventures, or in betting on the sides or hands of 
 them that do play, or in wagering on the event of amy game, sport, 
 pastime, or exercise") unlawfully did win from one H. P. B., to a cer- 
 tain person, whose name is to the jurors unknown (" to himself or 
 any other or others") a sum of money (to wit), fifty pounds (" any sum 
 of money or valuable thing"), of the monies of the said H. P. B. 
 And so the jurors aforesaid, upon their oath aforesaid, do say that the 
 said W. M., then in manner and form aforesaid, unlawfully did obtain 
 the said sum of money (to wit), fifty pounds, so being of the monies of 
 the said H. P. B. as aforesaid, from the said H. P. B. by a false pretence 
 with intent to cheat and defraud the said H. P. B. of the said sum of 
 money (to wit), fifty pounds, against the form of the statute in such case 
 made and provided, and against the peace of our lady the Queen, her 
 crown and dignity. (Second Count.) And the jurors aforesaid, upon 
 their oath aforesaid, do further present that the said W. M. afterwards 
 (to wit), on the day and year aforesaid, by fraud, unlawful device and 
 
 R K 5 
 
922 Offences relating to Game. 
 
 ill-practice in playing at and with cards, unlawfully did win from the 
 said H. P. B., to a certain person, whose name is to the jurors un- 
 known, a certain sum of money with intent to cheat him, the said 
 H. P. B., to the evil example of all others in the like case offending, 
 against the form of the statute in such case made and provided, and 
 against the peace of our lady the Queeii, her crown ^nd dignity. 
 \_An indictment in the form contained in this second covnt was held good 
 after verdict, although it was olgected that it should have alleged that 
 the moneif won was the property of the person defrauded^ R. v. Moss, 
 Dears. & B. 104; 26 L. J. {M. C.) 9. Where the offence was com- 
 mitted by two or more, and there is cmif doubt whether the game or 
 fraud comes within 8 (6 9 Vict. c. 109, «. 17, a cov/nt should be added 
 as in R. v. Hudson, Bell, 263; 29 L. J. (M. C.) 145, charging a 
 conspiracy to cheat.'] 
 
 Misdemeanor: punishable as for obtaining money by false pretences. 
 {See ante, p. 470.) 8 tfe 9 Vict. c. 109, s. 17. 
 
 Evidence. 
 
 To maintain this indictment, it is necessary not only to prove that 
 W. M. won of H. P. B. the money, etc., laid in the indictment, or 
 some part of it, see R. v. Damley, 1 Stark. R. 359, but also to prove 
 that it was won by " fraud or unlawful device or ill-practice." See 
 R. V. Rogier, 2 D. <& R. 431; 1 B. d C. 272. A variance between 
 the indictment and evidence as to the game played (if stated) would 
 be fatal, unless amended. See Cooke v. Stratford, 13 M. d W. 379. 
 It does not seem, however, to be necessary to state the name of the 
 game. See further as to what frauds and games come within the 
 8 <fe 9 Vict. c. 109, s. 17, R. v. Bailey, 4 Cox, 390: R. v. Hudson, Bell, 
 263; 29 L. J. {M. C.) 145. 
 
 Sect. 6. 
 ofpencijs relating to game. 
 
 Statute. 
 
 9 G. 4, c. 69, s. 4 — Limitation of Proceedings.] — The prosecution 
 for every offence punishable upon summary conviction, by virtue of 
 this act, shall be commenced within six calendar months after the 
 commission of the offence ; and the prosecution for every offence 
 punishable upon indictment, or otherwise than upon summary con- 
 viction, by virtue of this act, shall be commenced within twelv? 
 calendar months after the commission of such offence. 
 
 Sect. 8 — Conviction — Evidence.] — On every conviction under thia 
 act for the first or second offence, the convicting justices shall re- 
 turn the same to the next quarter sessions for the county, riding, 
 division, city, or place wherein such offence shall have been com- 
 mitted : and the record of such conviction, or any copy thereof, 
 shall be evidence in any prosecution to be instituted agaiast the 
 party thereby convicted for a second or third offence: and the clerk 
 of the peace shall immediately on such return make, or cause to be 
 made, a memorandum of such conviction in a register to be kept by 
 
Offences relating to Game. 923 
 
 him of the names and places of abode of the persons so convicted, 
 and shall state whether such conviction be the first or second con- 
 viction of the offending party. 
 
 Sect. 12 — Night, What.'] — Provided, that, for the purpose of this 
 act, the night shall be considered and is hereby declared to com- 
 mence at the expiration of the first hour after sunset, and to conclude 
 at the beginning of the last hour before sunrise. 
 
 Sect. 13 — Game, What.'] — For the purpose of this act, the word 
 "game" shall be deemed to include hares, pheasants, partridges, 
 grouse, heath or moor game, black game, and bustards. 
 
 TAKING GAME AFTER TWO PREVIOUS CONVICTIONS. 
 
 Statutes. 
 
 9 G. 4, c. 69, s. 1.] — Whereas an act was passed in the fifty-seventh 
 year of the reign of his late Majesty King George the Third, intituled, 
 " An Act for Prevention of Persons going armed hy Night for the 
 Destruction of Game; and for repealing an Act made in the last 
 Session of Parliament relative to Rogues and 'Vagabonds;" and 
 whereas the practice of going out by night, for the pm-pose of de- 
 stroying game, has nevertheless very much increased of late years, 
 and has in very many instances led to the commission of murder, and 
 of other grievous offences ; and it is expedient to repeal the said 
 recited act, and to make more effectual provisions than now by law 
 exist for repressing such practice ; be it enacted, that the said re- 
 cited act shall be and the same is hereby repealed, except so far as 
 the same repeals any other acts ; and if any person shall, after the 
 passing of this act, by night, unlawfully take or destroy any game 
 or rabbits in any land, whether open or inclosed, or shall by night 
 unlawfully enter or be in any land, whether open or inclosed, with 
 any gun, net, engine, or other instrument, for the purpose of taking or 
 destroying game, such offender shall, upon conviction thereof before 
 two justices of the peace, be committed, for the first offence to the 
 common gaol or house of correction, for any period not exceeding 
 three calendar months, there to be kept to hard labour, and at the 
 expiration of such period shall find sureties by recognizance, or in 
 Scotland by bond of caution, himself in ten pounds, and two sureties 
 of five pounds each, or one surety in ten pounds, for his not so 
 offending again for the space of one year next following ; and in case 
 of not finding such sureties, shall be further imprisoned and kept to 
 hard labour for the space of six calendar months, unless such sureties 
 are sooner found ; and in case such person shall so offend a second 
 time, and shall be thereof convicted before two justices of the peace, 
 he shall be committed to the common gaol or house of correction for 
 any period not exceeding six calendai- months, there to be kept to 
 hard labour, and at the expiration of such period shall find sureties 
 by recognizance or bond as aforesaid, himself in twenty pounds, and 
 two sureties in ten pounds each, or one surety in twenty pounds, for 
 his not so offending again for the space of two years next following ; 
 
924 Offences relating to Game. 
 
 and in case of not finding such sureties, shall be further imprisoned 
 and kept to hard labour for the space of one year, unless such sureties 
 are sooner found ; and in case such person shall so offend a third 
 time, he shall be guilty of a misdemeanor, and, being convicted 
 thereof, shall be liable, at the discretion of the court, to be trans- 
 ported beyond seas for seven years, or to be imprisoned and kept to 
 hard labour in the common gaol or house of correction for any term 
 not exceeding two years ; and in Scotland, if any person shall so 
 offend a first, second, or third time, he shall be liable to be punished 
 in like manner as is hereby provided in each case. 
 
 7 (fe 8 Vict. c. 29, s. 1.']— Recites the 9 G. 4, c. 69, s. 1, and that the 
 provisions of that act have been evaded and defeated by the destruction, 
 by armed persons at night, of game or rabbits, not upon open or inclosea 
 lands, as described in the said act, but upon public roads and highways, 
 and other roads and paths leading through such lands, amd also at the 
 gates, outlets, and opening between such lands and roads, highways 
 and paths, so that not only has the destruction of game and rabbits not 
 been presented, but the risk of murder and other grievous offences con- 
 templated by the said act has been increased, etc., and enacts, that, 
 from and after the passing of this act, all the pains, punishments 
 and forfeitures imposed by the said act upon persons by night un- 
 lawfully taking or destroying any game or rabbits in any land open 
 or inclosed, as therein set forth, shall be applicable to and imposed 
 upon any person by night unlawfully taking or destroying any game 
 or rabbits on any public road, highway, or path, or the sides thei'eof, 
 or at the openings, outlets, or gates, from any such land into any such 
 public road, highway, or path, in the like manner as upon any land, 
 open or inclosed ; and it shall be lawfiil for the owner or occupier 
 of any land adjoining either side of that part of such road, highway, 
 or path, where the offender shall be, and the gamekeeper or servant 
 of such owner or occupier, and any person assisting such game- 
 keeper or servant, and for all the persons authorized by the said act 
 to apprehend any offender against the provisions thereof, to seize and 
 apprehend, any person offending against the said act or this act; and 
 the said act, and all the powers, provisions, authorities and jmisdic- 
 tions therein or thereby contained or given, shall be as applicable 
 for carrying this act into execution, as if the same had been here 
 specially set forth. 
 
 20 d 21 Vict. c. 3.2— Ante, p. 172. 
 
 27 d; 28 Vict. c. 47, s. 2.1— Ante, p. 173. 
 
 Indictment. 
 
 Commencement as amte, p. 313, and after stating the two former con- 
 victions proceed as follows :] — And the jurors aforesaid, upon their 
 oath aforesaid, do further present, that the said .J. S. afterwards, and 
 after he had been so twice convicted as aforesaid, and within twelve 
 calendar months now last past, to wit, on the first day of June in the 
 year last aforesaid, by night, to wit, about the hour of eleven in 
 the night of the same day, did unlawftilly take and destroy certain 
 game and rabbits, to wit, one pheasant and two rabbits, in certain 
 land (" any land whether open or inclosed") in the occupation of J. N., 
 

 Offences relating to Game. 925 
 
 situate at the parish of B., in the county of M. [or, did unlawfully 
 enter certain land in the occupation of J. N., situate, etc., and was 
 then by night unlawfully in the said land with a certain gun (" gun, 
 engine, or other instrument^'), for the purpose, by night as aforesaid, 
 of therein taking and destroying game] ; against the form of the 
 statute in such case made and provided, and against the peace of 
 our lady the Queen, her crown and dignity. If the offence was com- 
 mitted on any public road, highway, w path, or the sides thereof, or at 
 any opening, outlet, or gate from amy land into any such road, etc., state 
 it accordingly. 1 <& 8 Vict. c. 29, s. 1. 
 
 Where the indictment, in setting out the second of the two former 
 convictions, stated that the defendant afterwards, to wit, on the 11 th 
 November, 1858, was duly convicted before, etc., for that he, within six 
 calendar months next before, etc., to wit, on the 2ith November in the 
 year aforesaid, in the night of the same day, at, etc., by night unlawfully 
 did enter and be in a/nd upon certain inclosed land in, etc., with certain 
 instruments [not stating what they were"] , for the purpose of killing, 
 taking, amd destiraying game thereon, this being his second offence, 
 (mtrary, etc., and was then adjudged to be imprisoned for six calendar 
 months, etc., this was held a sufficient statement of such conviction. 
 Cureton v. B., 1 B. <& S. 208 ; 30 L. J. {M. C.) 149. 
 
 Misdemeanor'} penal servitude for not more thorn seven nor less than 
 five years, or imprisonment and hard labour, not exceeding two years. 
 9 G. 4, c. 69, s. 1 ; 20 (g 21 Vict. c. 3 (ante, p. 172) ; 27 <:6 28 Vict. c. 47, 
 s. 2 {ante, p. 173). 
 
 Evidence. 
 
 Prove the two former convictions by the production of the originals, 
 or by examined copies. (See ante, p. 243 ; and 9 G. 4, c. 69, s. 8, 
 ante, p. 922.) Prove the identity of the defendant. And prove the 
 third offence, as stated in the indictment. It must have been com- 
 mitted in the night-time, that is, some time between the expiration 
 of the first hour after sunset, and the beginning of the last hour 
 before sunrise ; 9 Gr. 4, c. 69, s. 12 ; but a variance between the hour 
 stated and that proved will not be material. It must also appear that 
 the offence was committed within twelve calendar months before the 
 prosecution. See the evidence under the next precedent. 
 
 THREE OE MORE ENTERING LAND IN THE NIGHT, TO TAKE 
 GAME, ARMED. 
 
 Statutes. 
 
 9 G. 4, c. 69, s. 9 — Three persons armed taking Game, etc.'] — 
 Enacts, that if any persons, to the number of three or more together, 
 shall by night unlawfully enter or be in any land, whether open or 
 inclosed, for the purpose of taking or destroying game or rabbits, 
 any of such persons being armed with any gun, cross-bow, fire-arms, 
 bludgeon, or any other offensive weapon, each and every^ of such per- 
 sons shall be guilty of a misdemeanor, and, being convicted thereof 
 before the justices of gaol delivery, or of the court of great sessions 
 
926 Offences relating to Game. 
 
 of the county or place in which the offence shall be committed, shall 
 be liable, at the discretion of the court, to be transported beyond 
 seas for any term not exceeding fourteen years, nor less than seven 
 years, or to be imprisoned and kept to hard labour for any term not 
 exceeding three years ; and in Scotland any person so offending shall 
 be liable to be punished in like manner. 
 
 7 <fe 8 Vict. c. 29, s. X.^—Ante, p. 924. 
 
 20 & 21 Vict. c. 3.1— Ante, p. 172. 
 
 27 <& 28 Vict. c. 47, s. 2,']— Ante, p. 173. 
 
 Indictment. 
 
 Surrey, to wit : — The jurors for our lady the Queen upon their oath 
 present, that J. S., W. S,, E. (i,, and divers other pei-sons to the 
 jurors aforesaid unknown, to the number of three and more together, 
 on the first day of November, in the year of our Lord - — , about 
 the hour of eleven in the night of the same day, being then, by night 
 as aforesaid, respectively armed with guns and other offensive 
 weapons (" any gv/n, cross-how, fire-arms, bludgeon, or other offensive 
 weapon"), did then together, by night as aforesaid, and armed as 
 aforesaid, unlawfully enter (" enter or he in^') certain land (" a/ny 
 land, whether open or inclosed") in the occupation of J. N., situate at 
 the parish of B., in the county of S., for the purpose therein of de- 
 stroying game; against the form [OfS ante, p. 347]. Add a count 
 charging that the defendants " were by night as aforesaid, and armed 
 as aforesaid, together unlawfully in the said land, for the purpose," 
 etc. A count for assaulting a gamekeeper may also be added, if neces- 
 sary/ : see ante, p. 686 ; a/nd R. v. JSamdley, h C & P. .')65. 
 
 This offence ii of a local nature, and the indictment must describe 
 the land by name or occupation. H. v. Ridley, R. Sr R. 515. It is 
 not, however, necessary to state both the name and the occupation of the 
 land ; but, if both be staled, both must be pror,ed, and a variance will 
 be fatal {unless amended). R. v. Owen, 1 Mood. C. C. 118. ''A 
 certain cover in the parish of A." was held too general a description. 
 R. V. Crick, -5 C. if P. 508. The indictment need not specify whether 
 the land was open or inclosed. R. v. Andreiis, 2 M. Sc Rob. 37. 
 Nor is it necessary to name a certain close ; if the land described com- 
 prehend several closes, and the offence be committed on any part of such 
 hind, it is sufficient. R. v. Oezzell, 2 Den. 274 ; 3 C. ^ K. 150 ; 20 
 L, J. (-M. C.) 192. The indictment must show that the entry and the 
 arming were by night ; where, therefore, an indictment stated that the 
 defendants, on, etc., did by night enter divers closes, and were then 
 and there in the said closes armed, etc., the judgment was arrested, 
 because the word " night " was confined to the first branch of the sen- 
 tence, and the words " then and there " referred only to the day and 
 place before stated. R. v. Davies, 10 B. 4" C. 89 ; see Cureton v. R., 
 1 B.ir S. 208; 30 L. J. (M. C.) 149. It has been held that the 
 indictment is sufficient, if it alleges that the defendants were together 
 in the land by night, armed, for the purpose of destroying game, with- 
 out a distinct averment, in the earlier part of it, that the defendants 
 being armed, did together unlawfully enter, etc. R. v. Kendrich, 
 7 C. Sf P. 184. But in a subsequent case, R. v. Willis, Id. 812, 
 
Offences relating to Game. 927 
 
 Parke, B., intimated that it would be advisable to inlroduee such iin 
 averment in future ; and the above indictment has been framed in com- 
 pliance with this suggestian. 
 
 Misdemeanor : penal servitude for not more than fourteen and not 
 less than Jive years ; or imprisonment and hard labour not exceedirii/ 
 three years : 9 G. 4, c. 69, s. 9 ; 30 ^ 21 Vict. c. 3 (ante. p. 172); 27 
 if 28 Vict. c. 47, s. 2 (ante, p. 173). The justices at sessions have no 
 jurisdiction of this offence. 9 G. 4, c. 69, s. 9. 
 
 Evidence. 
 
 Prove that the defendants, with others, to the number of three or 
 more, entered and were, in the night-time (that is to say, some time 
 between the expiration of the first hour after sunset, and the begin- 
 ning of the last hour before sunrise, 9 G. 4, c. 69, s. 12 (ante,p. 923),) 
 in certain land in the occupation of J. N., and situate as described in 
 the indictment. A variance in the local situation, occupation, or the 
 name of the land, if it be stated, will be fatal, unless amended. R. 
 V. Owen, 1 Mood. C. C. 118. 
 
 Prove that they entered the land for the purpose of taking and de- 
 stroying game (that is, hares, pheasants, partridges, grouse, heath or 
 moor game, black game, and bustards, 9 G. 4, c. 69, s. 13 (ante, 
 p. 923),) or rabbits thei-e. Upon an indictment on the repealed sta- 
 tute 67 G. 3, c. 90, for having entered a close, etc., with intent then 
 and there illegally to destroy game, etc., the jury found that the de- 
 fendant was in pursuit of game, but could not say whether in the 
 close mentioned in the indictment or not ; and the defendant having 
 been convicted, the judges held the conviction wrong, because the 
 entry with intent to kill was confined by the indictment to the close 
 specified, and it was therefore necessary to prove the intent as to 
 that close. R. v. Barham, 1 Mood. C. C. 161 : see R. v. Capewell, 5 
 C. & P. 549: R. V. Gainer, 7 C. <& P. 231: Fletcher v. Calthrop, 6 Q. 
 B. 880; 14 L. J. (M. C.) 49 ; sed quaere; see per Hill, J., in Oureton v. 
 R., \ B.&S. 208; 30 L. J. (M. C.) 149. Where people are out at 
 night in pursuit of game, intending to take it when they can find any, 
 they are in pursuit of game in every field through which they pass. 
 If they are out with a general intent to take game, there is an intent 
 to take it in any field they may pass through where game may be 
 expected to be found. R. v. Higgs, 10 Cox, b21, per Willes, J. 
 And therefore where the prisoners were charged with being by 
 night, armed, in a certain close for the purpose of destroying game 
 therein, and the evidence was that they passed through the close 
 without doing anything in it, and that after being lost sight of for 
 two hours, they were found three miles off' with game in their pos- 
 session, it was held that there was evidence that they were in the 
 close mentioned in the indictment for the purpose of destroying 
 game. Id. The intent is proved by circumstances from which the 
 jury may infer it, as that the land was a preserve for game, or that 
 the defendants discharged guns there, or that they actually took 
 game or rabbits there, which is the best possible evidence of the 
 intent. All who are at the place, each acting his part with the com- 
 mon intent of taking game in the land mentioned in the indictment, 
 are equally guilty, though some of them only are 'bodily on the 
 land; if, therefore, some (though less than three) enter the land de- 
 scribed in the indictment (whether it be open land, or consist of one 
 or more closes or inclosures) armed, and others be watching on the 
 
928 Offences relating to Game. 
 
 outside of the land to give an alarm if necessary, they may equally 
 be convicted with those who actually enter the land, on an in- 
 dictment charging them all with having entered the land ai-med: 
 R. V. Passey, 1 C. & P. 282: R. v. Lockett, Id. 300 : R. v. Andrews, 
 2 M.& Rob. 37: R. v. Whittaker, 1 Den. 310; 2 C. S K. 636 ; n 
 L. J. {M. C.) 127: R. v. Scotton, 5 Q. B. 493; 13 L. J. (M. C. 58: 
 R. V. Uewell, 2 Den. 274 ■ 3 C. <& K. 150 ; 20 L. J. {M. C.) 192. 
 See now the 7 <& 8 Vict. c. 29, s. 1 (ante, p. 924). But not so if, 
 some of them being on the land in question, another is poaching in- 
 dependently of them on adjoining land. R. v. Nickless, % C. & P. 
 Ibl. And where the indictment charged that the prisoners were 
 with others on Redborough-hill Brake, and one only was seen there, 
 the others being in a wood separated therefrom by a high-road, 
 Pattescm, J., held the indictment not proved. R. v. Dowsell, 6 C.& 
 P. 398. The sending in of a dog to drive hares into a net set in the 
 fence, is not an entering of the land within the statute. R. v. 
 Nickless, swpra; see R. v. Pratt, i E. (& B. 860; Dears. 602. It is 
 not necessary, in order to prove that the defendants were on the 
 land unlawfully, to negative any permission to them by the owner 
 or tenant of the land to be there. R. v. Wood, Dears. <& B. 1; 25 
 L. J. (M. C.) 96. 
 
 Prove that the defendants, or some or one of them, were armed 
 with a gun or other offensive weapon, as stated in the indictment. 
 {See ante, p. 867.) A stick or bludgeon is not an offensive weapon, 
 unless the jury find that the defendant took it with him for the pur- 
 pose of offence. R. v. Palmer, \ M. & Rob. 70 : R. v. Fry, 2 M. <& 
 Rob. 42. Large stones are offensive weapons, if the jury are satisfied 
 that they were of a description capable of inflicting serious injury if 
 used offensively, and that they Were brought and used by the de- 
 fendants for that purpose. R. v. Grice, T C. & P. 803. The words 
 of the statute are, '■'■any of such persons being armed," etc.: and if 
 one of the party be armed with the knowledge of the rest, it will 
 support the allegation that they were all armed ; R. v. Smith, R. & 
 R. 368: R. v. Goodfellow, 1 Den. 81 ; I C. & K. 724; and it is not 
 necessary that any of the pai-ty should be actually armed at the 
 moment they are discovered, if there be evidence to satisfy the jury 
 that they were armed on the land. Upon an indictment on the re- 
 pealed statute, for hem^ found armed, it appeared that the flash of a 
 gun was seen in a wood, but before the defendants were discovered, 
 they had abandoned their arms, and were found creeping away upon 
 their knees; the judges held that they were armed within the mean- 
 ing of that statute. R. v. Nash, R. c6 R. 386. It would be within 
 the words of this statute if one of the party was armed without the 
 knowledge of his companions; but the contrary was decided upon 
 the repealed statute; R. v. Southern, R. <& R. 444; and it may be 
 doubtful how far such a case would come within the intention of the 
 legislature in this particular act. Where the indictment charged 
 that the defendants A. and B., together with another person, enterea 
 certain land, " the said A. and B. then and there being armed," it was 
 held that this allegation was not supported by proof that the third 
 person was armed, and that A. and B.» were not so. R. v. Davis, 8 
 C. (& P. 759: -but see R. v. Goodfellow, 1 Den. 81; 1 C. d; K. 724, 
 contra. 
 
 Lastly, it must be proved that the offence was committed within 
 twelve calendar months next before the prosecution. 9 G. 4, c. 69, 
 s. 4 {ante, p. 922). See R. v. Killminstei; 1 C. & P. 228 (ante, 
 
Taking up Dead Bodies, 929 
 
 p. 75): R. Y. Austin, 1 C. <& K. 621 (ante, p. 74) : R. v. Brooks, 
 1 Den. 217 ; 2 C. <& K. 402 (oni!e, i?. 74): B. v. J^mZ^, i F. & F. 16 
 (anfe, ^. 74) : R. v. Par/cer, £. t6 C. 459 ; 33 £. J. {M. C.) 135 (ante, 
 p. 74): A V. Casio;*, 11 Cox, 385 {ante, pp. 74, 75). 
 
 Sect. 7. 
 taking up dead bodies. 
 
 Indictment for Digging up and Carrying away a Dead Body. 
 
 Central Criminal Court, to wit: — The jurors for our lady the Queen 
 upon their oath present, that J. S., on the first day of June, in the 
 
 year of our Lord , the churchyard of and belonging to the parish 
 
 church of the parish of B., in the county of M., unlawftilly and wil- 
 fully did break and enter, and the grave there in which one J. N., 
 deceased, had lately before then been interred, and then was, unlaw- 
 fully, wilfully, and indecently did dig open, and the body of him the 
 said J. N. out of the grave aforesaid unlawfully, wilfully and inde- 
 cently did then take and carry away; in contempt of our lady the 
 Queen and her laws, to the evil example of all others in the like case 
 offending, and against the peace of our lady the Queen, her crown 
 and dignity. 
 
 Misdemeanor: fine or imprisonment, or hath. R. v. Lynn, 2 T. R. 
 733: R. V. GiUs, R. & R. 366, n.: R. v. Oimdich, D. & R. N. P. 13. 
 See also R. v. Sharpe, Dears. & B. 160; 26 L. J. {M. C.) 47. If 
 the lody cannot he recognized, state it to be the body of a person to the 
 jurors aforesaid unknown; and if it he doubtful from what place the 
 body was taken, see R. S R. 366, n. 
 
 The leaving unburied the corpse of a person for whom the defendant 
 was botmd to provide Christian burial, as a wife or child, is also an 
 indictable misdemeanor, if he he shown to have been of ability to pro- 
 vide such burial. R. v. Vann, 2 Den. 326; 21 L. J. (M. C.) 39. See 
 1 & % Vict. c. 101, s. 31, as to the burial of poor persons by thepa/rish 
 officers. 
 
 See 2 «fc 3 W. 4, c. 75, the Act for regulating Schools of Anatomy. 
 
 Evidence. 
 
 Prove that the defendant dug up the body; and the slightest re- 
 moval of it would, it seems, be sufficient to constitute the offence. 
 Or, prove that the body was found in the defendant's possession, and 
 that it had been previously interred in the churchyard mentioned in 
 the indictment; from which the jury may fairly presume that the de- 
 fendant was the person who dug it up or removed it. 
 
 It is a misdemeanor at common law to remove, without lawful 
 authority, a corpse from a grave, whether in a churchyard or in the 
 burial ground of a congregation of Protestant Dissenters; and it is 
 no defence to such a charge that the motives of the defendant were 
 pious and laudable. R. v. Sharpe, Dears. & B. 160: 26 L. J. 
 (M. C.) 47. So, a person, who without lawful authority disposes of 
 a dead body for the purpose of dissection, and for gain and profit, is 
 indictable at common law. But where the master of a workhouse. 
 
930 Disturbing Public Worship. 
 
 having as such the lawful possession of the bodies of paupers who 
 died therein, and who therefore was authorized under the 7th section 
 of the Anatomy Act {2 d; 3 W. 4, c. 75) to permit the bodies of such 
 paupers to undergo anatomical examination, unless to hig knowledge 
 the deceased person had expressed in his lifetime, in the manner 
 therein mentioned, his desire to the contrary, " or unless the surviv- 
 ing husband or wife, or any known relative of the deceased person, 
 should require the body to be interred without such examination," — 
 in order to prevent the relatives of the deceased paupers, from 
 making this requirement, and to lead them to believe that the bodies 
 were buried without dissection, showed the bodies to the relatives 
 in coffins, and caused the appearance of a funeral to be gone through; 
 and, having by this fraud prevented the relatives from making the 
 requirement, then sold the bodies for dissection; he was held not to 
 be indictable at common law. B. v. Feist, Dears. & B. 590; 27 
 L. J. (M. (7.) 164. 
 
 Sect. 8. 
 disturbing public worship. 
 
 Statute. 
 52 G. 3, c. 155, «. 12.] — If any person or persons, at anytime after 
 the passing of this act, do and shall wilfully and maliciously or con- 
 temptuously disquiet or disturb any meeting, assembly, or congrega- 
 tion of persons assembled for religious worship, permitted or autho- 
 rized by this act, or any former act or acts of parliament, or shall in 
 any way disturb, molest, or misuse any preacher, teacher, or person 
 officiating at such meeting, assembly, or congregation, or any person 
 or persons there assembled, such person or persons so offending, upon 
 proof thereof before any justice of the peace by two or more credible 
 witnesses, shall find two sureties, to be bound by recognizances in 
 the penal sum of fifty pounds, to answer for such offence, and, in de- 
 fault of such sureties, shall be committed to prison, there to remain 
 till the next general or quarter sessions; and, upon conviction of the 
 said offence at the said general or quarter sessions, shall suffer the 
 pain and penalty of forty pounds. \^This act does not extend to 
 Quakers' meeting-houses, s. 14, nor does it extend to the meetings for 
 religious worship mentioned in 18 <£ 19 Vict. c. 86, s. 1.] 
 
 Indictment for Distv/rbing a, Congregation of Baptists during 
 Divine Service. 
 Westmoreland, to wit: — The jurors for our lady the Queen upon 
 their oath present, that heretofore, to wit, at the general quarter ses- 
 sions of the peace holden at Appleby, in and for the county of West- 
 moreland, on the day of , in the year of our Lord , be- 
 fore A. B. and C. D., esquires, and others their associates, justices of 
 our lady the Queen, assigned to keep the peace of our said lady the 
 Queen in the said county, and also to hear and determine divers 
 felonies, trespasses, and other misdemeanors in the said county com- 
 mitted, J. N., clerk, teacher and preacher to a congregation of Pro- 
 testants, dissenting from the Church of England, scrupling infant 
 
Disturbing Public Worship. 931 
 
 baptism, did then, pursuant to the statute in such case made and pro- 
 vided, certify to her Majesty's justices of the peace assembled in 
 quarter sessions aforesaid, that he had appointed a certain house 
 
 situate at , in the parish of B., in the county aforesaid, therein 
 
 to assemble and meet for religious worship, and which was then duly 
 registered and recorded, according to the directions of the statute in 
 such case made and provided. And the jurors aforesaid, upon their 
 oath aforesaid, do further present, that afterwards, to wit, on the first 
 day of June, in the year of our Lord , a congregation of Pro- 
 testants, dissenting from the Church of England, of which the said 
 J. N. was then the teacher and preacher, were assembled for the 
 public worship and service of Almighty God in the house aforesaid, 
 so certified, registered and recorded as aforesg,id; and that J. S., 
 J. W. and E. W. afterwards, to wit, on the day and year last afore- 
 said, whilst the said congregation were so assembled as aforesaid, 
 and during divine service, unlawfully, wilfully, maliciously and con- 
 temptuously did come into the said congregation, during divine 
 service as, aforesaid, and did then wilfully, msilicionsly and con- 
 temptuously disquiet and disturb the congregation [by then talking, 
 cursiug, and swearing, with a loud voice, and also by talking with a 
 loud voice to the said J. N., he the said J. N. then being in the 
 pulpit], the doors of the said meeting-house and place where the 
 said congregation were so assembled as aforesaid not being then 
 locked, barred, or bolted; against the form [as ante, p. 347]. {2nd 
 Count.} — And the jurors aforesaid, upon their oath aforesaid, do 
 further present, that the said J. S., J. W. and E. W. afterwards, to 
 wit, on the day and year last aforesaid, ijnlawfully, wilfully, mali- 
 ciously and contemptuously did come into a certain congregation 
 of Protestants dissenting from the Church of England, then assem- 
 bled for the worship and service of Almighty God, in a certain 
 meeting-house, and the said congregation did then unlawfully, wil- 
 fully, maliciously and contemptuously disquiet and disturb [by talk- 
 ing, laughing, swearing, and cursing with a loud voice], (the said 
 meeting-house where the said congregation were so assembled as 
 aforesaid being then and long before certified, registered and re- 
 corded, according to the direction of the statute in such case made 
 and provided, and the doors of the said meeting-house and place 
 where the said congregation were so assembled, not being then 
 locked, barred, or bolted); against the form [as ai!ite,p., 347]. See 
 R. V. Cheere, A: B. & C. 902 \ 1 D. & Ry. 461. 
 
 Fine £40 (52 G. 3, c. 155, s. 12) each defendant; R. v. Hube, 5 T. 
 R. 5i% See the like provision as to Catholic chapels, 31 (?, 3, c. 33, 
 s. 10. See also the stats. 1 Mary, sess. 2, c. 3; 1 W, & M. c. 18: and 
 the case of Williams v. Glenister, i B.& C. 699. This offence may be 
 tried at the sessions; 52 G. 3, c. 155, s. 12, or in the Queen's Bench; 
 R. V. Wroughton, 3 Bwrr. 1683; or at the assizes, if removed from the 
 sessions by certiorari; 5 T. R. 642; 4 -3f . <£ Sel. 508. 
 
 The 23 & 24 Vict, c, 32, s. 2, renders liable to summary conviction 
 any person guilty of riotous, violent or indecent behaviour in any 
 chwch or chapel of the ^Established Church, or in arvy chapel of any 
 religious denomination, or in amy place of religious worship certified 
 imder the 18 & 19 Vict. c. 81, whether during the celebration of divine 
 worship or at amy other time, or in any churchyard or burial grovmd, 
 or who molests, disturbs, eta.., amy preacher or clergyman as therein men- 
 
932 Refusing to execute a Public Office. 
 
 Evidence. 
 
 1. Prove that the chapel or meeting-house was certified and regis- 
 tered as alleged in the indictment ; which may be done by the clerk 
 of the peace producing the book, etc., in which the same was regis- 
 tered, or by an examined or certified copy of the entry under 14 
 <& 15 Vict. e. 99, s. 14 (arete, p. 263). Where the chapel or meeting- 
 house has been registered under the 18 d; 19 Vict. c. 81, the regis- 
 tration may be proved by the certificate mentioned in s. 11 of that 
 statute. Where it was objected that the 62 G. 3, c. 155, s. 12, did 
 not extend to a congregation of foreign Lutherans, though registered, 
 the objection was overruled. R. v. JSube, Peake, 132. It is imma- 
 terial whether the officiating clergyman have qualified according to 
 the statute or not. Id. 
 
 2. Prove the disturbance as stated in the indictment. Where, in 
 a contest for the situation of a clerk to a meeting-house, one clerk 
 pulled the other from the desk, it was holden to be a disturbance 
 within the statute, R. v. Hube, 5 T. R. 542, although the statute 
 was certainly intended principally to apply to persons who with 
 violence oppose a form of worship inconsistent with their own ideas 
 and tenets. 
 
 Sect. 9. 
 refusing to execute a public office. 
 
 Indictment for refusing to serve the Office of Chief Constable. 
 
 Middlesex, to wit : — The jurors for our lady the Queen upon their 
 oath present, that, at the general quarter sessions of the peace, 
 holden at the New Sessions House on Clerkenwell G-reen, in and for 
 
 the county of Middlesex, on , the day of , in the year 
 
 of our Lord , before A. B. and C. D., esquires, and other their 
 
 associates, justices of our said lady the Queen, assigned to keep the 
 peace of our said lady the Queen in the said county, and also to hear 
 and determine divers felonies, trespasses, and other misdemeanors in 
 the said county committed, one J. S., then and long before being an 
 inhabitant and residing in the parish of B., within the hundred of 
 Ossulston, in the said county, and a fit and able person to execute 
 the ofiice of chief constable within the said hundred, at the said ses- 
 sions, by the justices aforesaid, in due manner was elected to be one 
 of the chief constables of the hundred aforesaid, in the room and 
 stead of one J. N., whereof the said J. S. afterwards, to wit, on the 
 day and year aforesaid, had notice. Nevertheless the said J. S. not 
 regarding his duty in that behalf, but contriving and intending the 
 due execution of justice to hinder and prevent, afterwards, to wit, on 
 the day and year aforesaid, unlawfully, wilfully, obstinately and con- 
 temptuously did refuse, and from thence continually until the day of 
 the taking of this inquisition, unlawfully, wilfully, obstinately, and 
 contemptuously hath refused, and still doth refuse, to take upon 
 himself and execute the said office of chief constable, within the 
 hundred aforesaid, contrary to his duty in that behalf, in manifest 
 contempt and delay of justice, and against the peace of our lady the 
 Queen, her crown and dignity. The indictment must show by whom 
 
• Refusing to execute a Public Office, 933 
 
 the defendant was elected, and that he had notice. B. v. Harpur, 5 
 Mod. 96. 
 
 Fine or imprisonment, or loth. See R. v. Bower, 1 B. & C. 587; 
 2D.<&R. 842. 
 
 Evidence. 
 
 1. Prove the election, by subpoenaing the clerk of the peace to 
 produce the minutes of it. 2. Prove the service of a notice upon the 
 defendant, informing him of his election, and requiring him to attend 
 before the justices to be sworn. 3. And prove either an actual refusal 
 to serve the office ; or that he did not attend to be sworn in, which 
 would be primA facie evidence of a refusal. 
 
 On the other hand, the defendant, as a defence, may prove: 1. That 
 he is not an inhabitant resident of the place for which he is chosen. 
 R. v. Adlard, 1 D. <& B. 340 ; 4 B. c6 C. 772 : Donne v. Martyr, 2 
 M.<S: R.^l; 8B.C&C.62; 1 Bum's J., h/ Chitty, tit. " Constable," 
 s. 2. — 2. That he is president or one of the commons or fellows of 
 the faculty of physic in London. 32 E. 8, c. 40.— 3. That he is a 
 surgeon duly admitted, and practising in London, semb. See 6 H. 8, 
 c. 16; 18 G. 2, c. 15: R. v. Pond, Comyns, 312.— 4. That he is an 
 apothecary, free of the company of apothecaries in London, or (if he 
 reside in the country) having served seven years' apprenticeship. 
 G (& 7 W. 3, c. 4. — 5. That he is a practising barrister or attorney. 
 Semble, 2 Hawh. c. 10, s. 39. — 6. That he is an alderman of London. 
 2 Hawh. c. 10, s. 40. — 7. That he is a serjeant, corporal, or private 
 man serving in the militia. 26 G. 3, c. 127, s. 139. — 8. That he is a 
 Protestant dissenting minister, and has taken the oaths, etc., 1 W. i& 
 M. c. 18, s. 11, and does not follow any trade, occupation, etc., for 
 his livelihood, excepting that of a schoolmaster. 52 G. 3, c. 155, 
 s. 9. — 9. That he is a Catholic clergyman, and has taken the oaths 
 prescribed. 31 G. 3, c. 32, s. 8. — 10. That he is a foreigner. R. v. 
 Mierre, 5 Burr. 2787.— 11. That he has a special exemption from 
 the crown, from serving in parish offices, etc. R. v. Clarke, 1 T. R. 
 679. 
 
 But it is no answer to say that he is a Protestant dissenter or 
 Catholic; for he may serve by deputy, if he do not wish to take the 
 oaths. 1 TF. c6 M. c. 18, s. 7; 31 G. 3, c. 32, s. 7. Nor is it any de- 
 fence that he is an officer of the King's guards, 2 Hawk. c. 10, s. 41, 
 or a younger brother of the Trinity House, 1 T. R. 679, for the same 
 reason. Nor is it any defence that he resides in the jurisdiction of a 
 leet within the hundred or place for which he is elected ; R. v. Genge, 
 Covyp. 13 ; or that no constable had ever been before appointed for 
 the place. 2 Keb. bbT. 
 
 Indictment for refusing to serve the Office of Petty Constable. 
 Middlesex, to wit:— The jurors for our lady the Queen upon their 
 
 oath present, that J. S., on the day of , in the year of our 
 
 Lord , and long before, was and still is an able-bodied man, resi- 
 dent within the parish of B., in the county of M., between the ages of 
 twenty-five years and fifty-five years, and duly qualified to execute 
 the office of constable for the said parish ; and that the said J. S., on 
 the day and year aforesaid, at a special petty sessions of the peace 
 of the justices of the peace of the said county, duly holden for the 
 appointment of constables for the said parish, was lawfully and in due 
 
934 Refuging to execute a Public Office. ' 
 
 manner and form chosen, nominated, and appointed by the said jus- 
 tices to be one of the constables of and for the said paaish, for one 
 year from thtoce Biext following, to do and execute all and singular 
 those things which belong to the oflSce of constable ; and that the 
 said J. S. afterwards, to wit, on the day and year aforesaid, had due 
 notice thereof, and was then sutomoned!^tind required to appear before 
 the said justices on the fifth day of August in the year aforesaid, 
 then to tatee his oath for the due execution of the said ofiice of con- 
 stable for the said parish, according to the duty of that office, and to 
 take upon himself the said office. Nevertheless the said J. S., not 
 regarding his duty in that behalf, but contriving and intending the 
 due execution of justice to hinder and prevent, afterwards, to wit, on 
 the day and year aforesaid, unlawfully, wilfully, obstinately, and con- 
 temptuously did refuse, and from thence continually until the day of 
 the taking of this inquisition, unlawfully, wilfully, obstinately, and 
 contemptuously hath refused, and still doth refuse, to take his said 
 oath for the due execution of the said office of constable, Or iti any- 
 wise to take upon himself and execute the said office ; contrary to 
 his duty in that behalf, in manifest contempt and delay of justice, 
 and against the peace of our lady the Queen, her Crown and dignity. 
 (See a similaf precedent, where the defemdamt was elected at the leet, 
 1 Brnn'g J. 1085 (30f^ ed)\ G. C. C. 125; 4 Went. 351, 352; and 
 the like where the election was at a court of wardmote for one of (he 
 wards in the city of London, C. C. G. 147.) 
 
 The appointment, duties, and powers of parish constables are now 
 regulated by the stat. 5 <& & Vict. c. 109, the 21st section of which pro- 
 hibits their future appointment (except for the performance of dJaUes 
 unconnected with the preservation of the peace) at any court leet or 
 tonwn, or otherwise than umder the provisions of that act, wpf the GoUmty 
 Constables Act, 2 c6 3 Vict. c. 93. As to the grownds of exemption, see 
 sect. 6. 
 
 As to the e/oideinee, see wiite, p. 933. 
 
 Indictment fot refusiiig to serve the Office of Overseer of the Poor. 
 
 Middlesex, to wit : — The jurors for our lady the Queen upon their 
 
 oath present, that J. S., on the day of , in the year of our 
 
 Lord , and long before, was and still is a substantial householder 
 
 in the parish of B., in the county of M., and an inhabitant and resi- 
 dent in the said parish, and a fit and able person to execute the office 
 of overseer of the poor for the said parish ; and that the said J. S. 
 on the day and year aforesaid, by warrant under the hands and seals 
 of A. C, esquire, and J. P., clerk, two of the justices of our said lady 
 the Queen assigned to keep the peace of our said lady the Queen in 
 and for the county aforesaid, and also to hear and determine divers 
 felonies, trespasses, and other misdeeds committed in the said county 
 (one of the said justices being of the quorum, and both of the said 
 justices then dwelling in [or near] the parish aforesaid in the county 
 aforesaid), was lawfully nominated and appointed to be one of the 
 overseers of the poor of the said pai-ish, according to the direction of 
 the statute in such case jnade and provided ; whereof the said J. S. 
 afterwards, to wit, on the day and year aforesaid, had notice. Never- 
 theless, the said J. S., not regarding his duty in that behalf, but 
 contriving and intending to render the said warrant of appointment 
 
Refusing to eieecute a Puhlio Office. 935 
 
 of no effect, afterwards, to wit, on the day and year aforesaid, unlaw- 
 fully, wilfully, obstinately, and contemptuously, did reftise, and from 
 thence continually until the day of the taking of this inquisition, 
 unlawfully, wilfully, obstinately, and contemptuously hath reiused 
 and still doth refuse, to take upon himself and execute the said office 
 of overseer of the poor of the said parish ; contrary to his duty in 
 that behalf, to the great damage of the said parish and the parishioners 
 thereof, in delay of the provision for and care of the poor of the said 
 parish, in contempt of our lady the Queen and her laws, to the evil 
 example of all others in the like case offending ; against the form of 
 the statute in such case made and provided, and against the peace 
 of our lady the Queen, her crown and dignity. {See the precedents, 
 4 Went. 338, 439.) In stating the appointment, let the terms of the 
 warrant be particularly attended to. 
 
 Evidence. 
 
 Produce the warrant, and prove it. Prove that the defendant had 
 notice of it, as mentioned in the indictment. And prove either that 
 he had actually teflised to eiecute the office. Or that he did not after- 
 wards execute it, from which his refusal to execute it will be implied. 
 The same causes of exemption from serving the office of constable 
 are in general equally applicable to the office of overseer of the poor. 
 (See amte, p. 933.) 
 
 Upon an indictment against a defendant, for refusing to serve the 
 office of overseer, it was held that he was a substantial householder, 
 within the stat. 43 Eliz. c. % and liable to serve such office, although 
 lie occupied a house and paid rent and taxes in the parish by means 
 of a clerk only, but slept in another parish. R. v. Poynder, IB.&C. 
 178 ; 2 D. tfe JJ. 258 : and see R. V. Hall, 'iD.dR. 241 ; 1 B. <& C. 
 123. 
 
( 936 ) 
 
 PART III. 
 
 CONSPIEACT. 
 
 Indictment for a Conspiracy to charge a Man with a Chime. 
 
 Central Criminal Court, to wit: — The jurors for our lady the Queen 
 upon their, oath present, that J. S. and A. his wife, J. W. and E. W., 
 being evil-disposed persons, and wickedly devising and intending, 
 -not only to deprive one J. N. of his good name, fame, credit, and 
 reputation, but also to subject him, as far as in them lay, to the 
 pains and penalties by the laws of this kingdom made and provided 
 against and inflicted upon persons guilty of [rape], on the first day 
 of June, in the year of our Lord , did amongst themselves con- 
 spire, combine, confederate, and agree together, falsely to charge 
 and accuse the said J. N., that he, the said J. N., had then lately 
 before [feloniously ravished and carnally known the said A. violently 
 and against her will and consent]. And the jtjkoes apokesaid, 
 upon their oath aforesaid, do farther present, that the said J. S. and 
 A. his wife, and J. W. and E. "W., afterwards, to wit, on the day and 
 year aforesaid, in pursuance of and according to the said conspiracy, 
 combination, confederacy, and agreement amongst themselves had 
 as aforesaid* \here set out the overt acts, as in high treason (see ante, 
 p. 721), introducing the second and each of the subsequent oAs thus:"] 
 And the jurors aforesaid, upon their oath aforesaid, do further pre- 
 sent, that, in further pursuance of and according to the said con- 
 spiracy, combination, confederacy, and agreement amongst them, the 
 said J. S. and A. his wife, and J. W. and E. W., had as aforesaid, 
 they the said, etc., on etc. [continuing the indictment from the above 
 asterisk, as thus,'] falsely and unlawfully, in the presence and hearing 
 of divers persons, did charge and accuse the said J. N. with and of 
 the rape aforesaid. And the jurors aforesaid, upon their oath 
 aforesaid, do further present, that in further pursuance of and accord- 
 ing to the said conspiracy, combination, confederacy, and agreement 
 amongst them the said J. S. and A. his wife, and J. W. and E. W., 
 had as aforesaid, she the said A. afterwards, to wit, on the day and 
 year aforesaid, did, upon her oath, falsely charge and accuse the said 
 J. N. before A. C, esquire, then and yet being one of the justices of 
 our said lady the Queen in and for the county aforesaid, assigned to 
 keep the peace, and also to hear and determine divers felonies, tres- 
 passes, and other misdeeds committed in the said county, that he the 
 said J. N. had then lately before feloniously ravished and carnally 
 known her the said A., violently and against her will and consent. 
 And the jurors aforesaid, upon their oath aforesaid, do further 
 present, that in fiui;her pursuance of and according to the said con- 
 
■racy. 937 
 
 splracy, combination, confederacy, and agreement amongst them the 
 said J. S. and A. his wife, and J. W. and E. W., had as aforesaid, she 
 the said A., by the name of A., the wife of J. S., afterwards, to wit, 
 at the general quarter sessions of the peace of our said lady the 
 Queen, holden at the New Sessions House on Clerkenwell Green, in 
 and for the county of Middlesex aforesaid, and within the jurisdiction 
 
 of the said court, on Monday, the day of June, in the year 
 
 aforesaid, before A. B. and C. D., esquires, and others their associates, 
 justices of our said lady the Queen, assigned to keep the peace of 
 our said lady the Queen in and for the county aforesaid, and also to 
 hear and determine divers felonies, trespasses, and other misdeeds 
 committed in the said county, did falsely exhibit a bill of indictment 
 against the said J. N. to P. C., esquire [here insert the names of the 
 gra/nd jurors to whom the indictment for rape was exhibited], good and 
 lawful men of the said county, then there sworn and charged to in- 
 quire for our said lady the Queen, for the body of the said county ; 
 which said bill was, by the said jurors, then there returned into the 
 said court, before the justices of our lady the Queen last aforesaid, 
 and others their fellows aforesaid, thus indorsed; — "Not found:" 
 which said bill is in these words, that is to say: — [here set out the 
 indictment verbatim; and you, may then add, with intent to obtain and 
 acquire to them the said J. S. and A. his wife, and the said J. W. 
 and E. W., of and from the said J. N. divers sums of money for com- 
 pounding the said pretended felony and rape so falsely charged upon 
 the said J. N. as aforesaid, if this be the fact, and that there will be no 
 difficulty inproving it] : to the great damage, scandal, infamy and 
 disgrace of the said J. N., to the evil example of all others in the 
 like case offending, and against the peace of our lady the Queen, her 
 crown and dignity. See the following precedents : — a conspiracy to 
 charge a man with forgery, 4 Went. 86 ; sodomy, C. C C 126; lar- 
 ceny, C. C. C. 135; and see 3 Burr. 1320; receiving stolen goods, 
 C. C. C. 125 ; poisoning horses, 4 Went. 98. 
 
 Misdemeanor : fine or imprisonment, or both. On cormictionfor a 
 conspiracy to cheat or defraud, or to extort money or goods, or 
 falsely to accuse of any crime, or to obstruct, prevent, pervert, or 
 defeat the course of public justice, the court may sentence the offender 
 to hard labour during the whole or any part of the imprisonment. 
 14 §■ 15 Vict. c. 100, s. 29, ante, p. 175. 
 
 No indictment can he preferred for conspiracy unless one or other 
 of the preliminary steps required In/ 2,2 Sf 23 Vict. c. 17, s. 1 (ante, 
 p. 4), has been taken. 
 
 Justices in sessions, or the recorder of a borough, have no jurisdic- 
 tion over the offence of illegal combination or conspiracy, except con- 
 spiracies or combinations to commit any offence which they have juris- 
 diction to try when committed by one person. 5^6 Vict. e. 38, s. 1 
 {ante, p. 104). An indictment charging a conspiracy " by divers false 
 pretences against the form of the statute in such case made and pro- 
 vided, R. of his monies to defraud, against the form of the statute, etc ," 
 sufficiently charges a conspiracy to obtain money by false pretences, and 
 is therefore triable at quarter sessions. Latham v. R.,6 S. Sf S. 636 ; 
 33 L. J. (M. C.) 197. 
 
 A conspiracy is an agreement between two or more persons: — 1. 
 Falsely to charge another with a crime punishable by law, either 
 from a malicious or vindictive motive or feeling towards the party, 
 or for the purpose of extorting money from him. — 2. Wrongfully to 
 injure or prejudice a third person, or any body of men, in any other 
 
 w. s s 
 
938 Conspiracy. 
 
 manner. — 3. To commit any offence punishable by law.r^4 To do 
 any act with intent to pervert the course of justice..— 5. To effect a 
 legal purpose with a corrupt intent, or by iiBiuproper means.— 6. To 
 which may be added conspiracies or combinations by 'journeymen to 
 raise their wages, etc. 
 
 Thus, mijder the first head:— a conspiracy to charge a man falsely 
 ■with treason, felony, or misdemeajior, is indictable': but it is not an 
 indictable offence for two or mor« peissons to consult, and agree to 
 proseouite a person -who is guilty, or against whom there aire reason- 
 lable grounds of suspioion. R. v. Best, 1 .Saih. 174; 2 Ld. R. 1167. 
 
 Under the second head-^a conspiracy to impose pretended wine 
 upon a man, as and for true 'and good Portugal wine, in esehange for 
 goods; R. V. Macariy, 2 L. Raym. 1179; a conspiracy to defraud the 
 public by means of a mock auction, that is, an auction with sham 
 bidders, wiho pretend to be neal bidders, for the purpose of selling 
 goods at prices grossly sibove their worth? R. v. Lewie, 11 Gaa:, 404, 
 per Willes, J. ; a «ouspiracy by a female servant amd a, man whom 
 she got to personate her master and marry her, in order ito defraud 
 her master's relations of a part of his property after his death; R. v 
 Taylor,'! Leach, 47; a conspimacy to injure a man in his trade or 
 profession ; R. v. Eccles, 1 Leach, 274; a conspiracy, by false and 
 fraudulent represemtations ^that. a horse bought by .one of the defend- 
 ants from the prosecutor was unsound, to induce him to, accept :a 
 less sum for the horse &an the agreed price; R. v. CarlOe, Deare. 
 337; 23 L. J. (M. C.) 109; a conspiracy to .charge a man as the re- 
 puted i i&vther of a bastaxd; 1 Hawk. e. 72, .s. 2; a conspiracy to raise 
 the prices of the public funds by false rumours, as beinga fraud upon 
 the public; 3 J/. <fc Sel.&l; a conspiracy by:persons to cause them- 
 selves to be reputed men of property, in order to defraud tradesmen; 
 R. v. Robents, 1 Camp. 399; a conspiracy to defraud by means of 
 false represeatations .of the solvency of a bank or other mercantile 
 establishment; R. v. Esdaile, IF. ds.F. 213; a conspiracy to .defraud 
 the public fey issuing and negotiating bills in the name of a .fictitious 
 and pretended banking firm; R. v. Hmey, 2 East, P. C. 858, n. (a); 
 a conspiracy by traders to dispose of their goods in contemplation of 
 bankruptcy, with intent to defraud their creditors; R. v. Hall, 1 F. 
 d F. 33; a conspiracy to procure the defilement of a girl ; R. v. Mews, 
 iDen.lQ; 20LJ.(M.C.)5Q; a conspiracy to induce a woman, whether 
 chaste or not, to become a common prostitute; R. v. Howell, 4 F. 
 & F. 160; a conspiracy by violence, thx-eats, contrivance, or other 
 sinister means, to procure the marriage of a pauper of one parish to 
 a pauper of another, in order to charge one of the parishes with the 
 maintenance of both; R. v. Tarrant, 4 Burr. 2106: R. v. Sewa/rd, 1 
 A. & E. 706; 3 L J. {M. C.) 103; amd see 1 East, P. C. 461, 462; 8 
 Mod. 320; for these respectively, it has been holden, an indictment 
 will lie: (and now by the stat. 7 <fc 8 Vict. c. 101, «. 8, the endeavour, 
 by any officer of any union, parish, or place, to induce any person to 
 contract a marriage by threat or promise respecting any application 
 to be made, or any order to be enforced, with respect to the main- 
 tenance of any bastard child, is in itself a misdemeanor). And 
 although it may not be a criminal offence at common ilaw for a 
 person to cheat his partner, yet where one of two partners combines, 
 during the continuance of the partnership, with a third party to enable 
 the one partner to cheat the other with regard to the division of the 
 partnership property on a contemplated dissolution of the partner- 
 ship, this combination is a conspiracy. R. v. Warhurton, Michaelmas 
 
Conspiracy. 939 
 
 Term, 187(L(C. C. R). But an indictment will not lie for a con- ' 
 spiracy to coinmit a mere civil trespass; R. v. Turner, 13 East, 228; 
 or for a conspiracy to deprive a man of an office under an illegal 
 trading company. M. v. Stratton, 1 Camp. 549, n. If, however, the 
 parties conspire to obtain money by false pretences of existing facts, 
 it seems to be no objection to the indictment for conspiracy, that the 
 money was to be obtained through the medium of a contract. R. v. 
 Kmrick, 5 Q. B. 49; Dav. S M. 208; 12 L. J. (Jf. C.) 135. See 
 ante, p. 473. 
 
 Under the third head — a, conspiracy to commit a felony or misde- 
 meanor is indictable. See R. v. Pollmajn, 2 Camp. 229, ». A con- 
 spiracy to commit murder is now a statutable misdemeanor, punish- 
 able with penal servitude and imprisonment. 24 <6 25 Vict. c. 100, 
 s. 4, ante, p. 647. 
 
 Under the fourth head — a conspiracy by certain justices of peace 
 to certify that a highway was in repair, when they knew it to be 
 otherwise, was holden to be indictable. R. v. Mawbey, 6 T. R. 619. 
 So, where several persons conspired to procure others to rob one of 
 them, in order, by convicting the robber, to obtain the reward then 
 given by statute in such case, and the party who accordingly com- 
 mitted the robbery was afterwards convicted and actually executed, 
 these persons were indicted for the conspiracy, and convicted. R. 
 V. Macdamiel, 1 Leach, 45 ; Post. 130. 
 
 As to the fifth head, namely, efifecting a legal purpose with a cor- 
 rupt intent, or by improper means ; see 1 Leach, 38 ; 3 Burr. 1439 ; 
 1 Wils. 41 ; 8 Mod. 321. As to the sixth head, see post, p. 943. 
 
 1. The indictment must in the first place charge the conspiracy. 
 And in stating the object of the conspiracy, the same certainty is 
 not required as in an indictment for the offence, etc., conspired to be 
 committed ; as, for instance, an indictment for conspiring to defraud 
 a person of " divers goods," has been holden sufficient. Ante, p. bb ; 
 and see 3 Bmr. 1320 ; and R. v. Blake, 6 Q. S. 126 ; 13 L. J. (Jf. C.) 
 131 : Sydserff v. R., 11 Q. B. 245. So, an indictment charging a 
 conspiracy " by divers false pretences and indirect means to cheat 
 and defraud A. of his monies," was held good ; R. v. Gomperts, 9 
 Q. B. 824 ; and it is not necessary, in order to sustain such an indict- 
 ment, to prove such a false pretence as would, if money had been 
 obtained on it by one person alone, have been sufficient to sustain 
 an indictment against him for obtaining money by false pretences ; 
 .R. V. Hudson, Bell, 263 ; 29 L. J. (M. C.) 145. But a conspiracy to 
 defraud the creditors of W. E. (not saying of what), is too general. 
 R. V. Fowle, i C. (& P. 692. In an indictment for a conspiracy at 
 common law, to effect objects prohibited by a statute, it is sufficient 
 to follow the words of the statute. Therefore, an indictment which 
 charged a conspiracy to force workmen to depart from their employ- 
 ment, to raise the rate of wages, etc., by " molesting," by " threats," 
 by " intimidating," by " obstructing," etc., in violation of 6 O. 4, 
 c. 129, was held sufficient, without setting out the means used to 
 molest, intimidate, or obstruct, or the threats held out. R. v. Row- 
 lands, 2 Den. 364 ; 17 Q. B. 671 ; 21 L. J. (M. C.) 81. 
 
 2. It is usual to set out the overt acts, that is to say, those acts 
 which may have been done by any one or more of the conspirators, 
 in order to effect tlie common purpose of the conspiracy. But this 
 is not essentially necessary ; the conspiracy itself is the offence ; and 
 whether anything have been done in pursuance of it or not is imma- 
 terial. R. V. Gill, 2B. & AM. 204 : R. v. Seward, lA.&E. 706 ; 
 
 ss2 
 
940 Conspiracy. 
 
 3 L. J. {M. C) 103 : R. V. Richardson, 1 M. & Rob. 402 : E. v. Ken- 
 rick, 5 Q. 5. 49 ; Dav. <& M. 208 ; 12 £. J. {M. C.) 136 : anrf m 2 
 £. i?aym. 1167 ; 2 San-. 993; 3 ^an-. 1321 ; 13 East, 230, n. A 
 conspiracy consists not merely in the intention of two or more, but 
 in the agreement of two or more, to do an unlawful act, or to do a 
 lawful act by unlawful means. So long as such a design rests in 
 intention only, it is not indictable. But where two agree to cariy 
 it into effect, the very plot is an act in itself, and the act of each of 
 the parties, promise against promise, actus contra actum, capable of 
 being enforced, if lawful, punishable if for a criminal object or for 
 the use of criminal means. Mulcahy v. R., L. R., 3 H. L. English 
 and Irish Appeals, 306, 317. Overt acts, which are laid and proved 
 against some of the defendants, may be looked at as against all of 
 them, to show the nature and objects of the conspiracy. R. v. Esdaile, 
 1 F. (& F. 213. But an indictment charging that the defendants 
 unlawfully conspired to defraud divers persons, who should bargain 
 with them for the sale of merchandise, of great quantities of such 
 merchandise, without paying for the same, witli intent to obtain to 
 themselves money and other profit, was held bad for not showing bv 
 what means the parties were to be defrauded. R. v. Peck, 9 A.&E. 
 C86 ; 1 Per. & D. 508 : Peck v. R., 8 L. J. {M. C.) 22, 8. C. So also, 
 a count charging that two of the defendants, being partners in trade, 
 and indebted to divers persons, unlawfully conspired to defraud the 
 said creditors of payment of their debts, and that they and the other 
 defendant, in pursuance of the said conspiracy, falsely and wickedly 
 made a fraudulent deed of bargain and sale of the stock in trade of 
 the partnership, for fraudulent consideration, with intent thereby to 
 obtain to themselves money and other emoluments to the great 
 damage of the said creditors, was held bad for not alleging facts to 
 show in what manner the deed was fi-audulent. Id. But it was held 
 that the indictment was not bad for not stating the names of the 
 parties intended to be defrauded, since it could not be known who 
 might fall into the snare. Id. But where the indictment charged, 
 that the defendants conspired to defraud certain of her Majesty's 
 subjects, being tradesmen, of divers large quantities of their goods, 
 and that one of the defendants, J. S., did, in pursuance of such con- 
 spiracy, fraudulently order and obtain on credit from A. and B. 
 upholsterers in L., divers goods of great value, to wit, etc., of and 
 belonging to the said A. and B., and from divers other tradesmen, 
 whose names are to the jurors unknown, divers other goods of great 
 value, to wit, etc., of and belonging to the said last-mentioned per- 
 sons respectively ; and in further pursuance of the said conspiracy, 
 and in order that the said goods might be taken in execution and 
 sold, did order and direct that the said goods should be delivered by 
 the said tradesmen at the house of the said defendant ; that no pay- 
 ment or satisfaction was made for the goods by the defendants ; and 
 that, in further pursuance of the conspiracy, the said goods were 
 taken in execution at the suit of some of the defendants, to satisfy 
 fictitious debts pretended to be due to them from the defendant J. S. ; 
 it was held, by the Court of Exchequer Chamber, that the statement 
 of the conspiracy was defective, for not setting out the names or 
 designating the class of persons defrauded, and that the defect was 
 not aided by the allegation of the overt acts. King v. R., 7 Q. B. 
 782 ; 14 L. J, (M. C.) 172. An indictment for a conspiracy to obtain 
 goods by false pretences was bad unless it stated whose property the 
 goods were, until 24 <Sk 25 Vict. c. 96, s. 88. {See ante, p. 479.) B. 
 
Conspiraq). 941 
 
 v. Bullock, Dears. 653 ; 25 L. J. (M. C.) 92. If the indictment be 
 general, the court will order the prosecutor to furnish a particular of 
 the charges to be relied upon, but will not compel him to state the 
 specific acts to be proved, and the time and place at which they are 
 alleged to have occurred. B. v. Hamilton, 1 C. & P. 448. 
 
 3. In an indictment for a conspiracy to indict or charge a man 
 with an offence, it is not necessary to aver that the man is innocent 
 of the offence ; -ffi. v. Einnersley, 1 Sir. 193 ; for he shall be presumed 
 to be innocent until the contrary appeal*. See R. v. Best, 1 Salh. 174: 
 R. V. Spragg, 2 Burr. 993. So, in an indictment for conspiring to 
 pervert the course of justice, by producing a false certificate of jus- 
 tices of peace that a road indicted was in repair, in order to influence 
 the judgment of the court, it is not necessaiy to allege that the 
 defendants knew the certificate to be false ; it is sufiicient that they 
 agreed to certify the fact as true, without knowing it to be so. R. v. 
 Mawbey, 6 T. R. 619. 
 
 4. The venue may be laid in the county in which the conspiracy 
 actually took place, or in any county in which any one of the defend- 
 ants did an act in furtherance of the common object of the conspi- 
 rators (ante, p. 35). A foreigner may be indicted In this country for 
 conspiring here to cast away a foreign ship, provided the conspiracy 
 be not limited to doing the act abroad. R. v. Kohn, i F. d; P. 68. 
 
 Evidence. 
 
 Prove the conspiracy as described in the indictment, and that the 
 defendants were engaged in it ; or prove circumstances from which 
 the jury may presume it. See R. v. Parsons, 1 W. Bl. 322 : R. v. 
 Murphy, SC.(& P. 297. Conspiracy is generally a matter of inference, 
 deduced from certain criminal acts of the parties accused, done in 
 pursuance of an apparent criminal purpose in common between them. 
 R. V. Brisac, 4 East, 111, per Grose, J., cited with approval by Willes, J., 
 in delivering the opinion of the judges in Mulcahy v. R., L. R., 3 
 H. L. English and Irish Appeals, 306, 317. The prosecutor may go 
 into general evidence of the nature of the conspiracy, before he gives 
 evidence to connect the defendant with it. R. v. Hammond, 2 Esp. 
 718. 
 
 The acts and declarations, also, of any of the conspirators, in fur- 
 therance of the common design, mav be given in evidence against all 
 (ante, p. 214) ; see R. v. Shellard, 9 (7. <fe P. 277 : R. v. Blake, 6 Q. B. 
 126 ; 13 L. J. (M. C.) 131. And if any one overt act be proved in the 
 county where the venue is laid, other overt acts, either of the same 
 or others of the conspirators, may be given in evidence, although 
 committed in other counties. (Ante, p. 214.) R. v. Bowes, 4 East, 
 171, cit. But before you give in evidence the acts of one conspirator 
 against another, you must prove the existence of the conspiracy, 
 that the parties were members of the same conspiracy, and that the 
 act in question was done in furtherance of the common design. 
 (Ante, p. 214.) Where the indictment charged the defendant with 
 conspiracy with persons unknown to defraud J. D. and others, and 
 laid as overt acts that he falsely pretended to J. D. that he was a 
 merchant named Gr., and under colour of a pretended contract with 
 J. D. for the purchase of certain goods of the said J. D. and others, 
 obtained goods of the said J. D. and others, with intent to defraud 
 the said J. D. and others : it was held, that the words " J. D. and 
 others" must throughout this indictment be taken to mean J. D. and 
 others, his partners; and therefore that evidence was not admissible 
 
942 Conspiracy. 
 
 to show attempts by the defendant to defraud other persons wholly 
 unconnected with J. D. B. v. Steel, 2 Mood. C. C. 246 ; C. <& Mar. 
 337. 
 
 Although the evidence in support of an indictrbent for a con- 
 spiracy shows the object of the conspiracy to have been felonious, 
 and even that a felony was actually committed in the course of it, 
 the defendants were not, even before 14 cfc 15 Vict. c. 100, s. 12 (ante, 
 p. 164), entitled to be acquitted on the ground that the misdemeanor 
 had merged in the felony ; nor was or is it any ground for awesting 
 the judgment that, on the face of the indictment itself, the object of 
 the conspiracy amounts to a felony, the gist of the offence charged 
 being a conspiracy. H. y. Button, 11 Q. B. 929 ; 18 L. J. (M. C.) 19: 
 see R. V. Neale, 1 Den. 36 ; I C. & K. 591 ; ante, p. 709. 
 
 The wife of one of the defendants shall not be allowed to give 
 evidence for or against the others. {See ante, p. 275.) 
 
 A conspiracy must be by two persons at least; one cannot be con- 
 victed of it, unless he have been indicted fdr conspiring with persons 
 to the jurors unknown. 1 Hawk. c. 72, s. 8. And a man aUd his 
 wife cannot be indicted for conspiring together alone, because they 
 are in law one person (amte, p. 23). But one person alone may be 
 tried for a conspliracy, provided the indictment charged him with eon- 
 spiring with others who have not appeared, R. v. Kinnersley, 1 Str. 
 193, or who are since dead. R. v. Nicholls, 2 Str. 1227. Where the 
 indictment charged that A., B. and C. conspired together, and with 
 divers other persons to the jurors unknoT«Ti, etc., and the jury foilnd 
 that A. had conspired with either B. or C., but they could not say 
 which, and there was no evidence against any other persons than the 
 three defendants, A. was held entitled to an acquittal. R. v. Thompson, 
 16 Q. B. 832; 20 L. J. {M. C.) 183. 
 
 Indictment for a Conspiracy to commit a Crime. 
 
 Central Criminal Court, to wit: — The jurors for our lady the Queen 
 upon their oath present, that J. S., J. W. and E. W., being evil-dis- 
 posed persons, and wickedly devising and intending to defraud and 
 prejudice certain persons hereinafter mentioned, on the first day of 
 June, in the year of our Lord , did amongst themselves con- 
 spire, combine, confederate and agree together falsely and fraudulently 
 to cheat and defraud certain underwriters hereinafter mentioned of 
 divers large sums of money : And the jurors aforesaid, upon 
 their oath aforesaid, do further present, that the said J. S., J. W. 
 and E. W. afterwards, to wit, on the [date of the polioyi, in the year 
 aforesaid, in pursuance of and according to the said conspiracy, com- 
 bination, confederacy and agreement amongst themselves had as 
 
 aforesaid, did cause and procure a certain ship called the , and 
 
 certain goods in and on board the said ship, to be insured by certain 
 underwriters, to wit, by A. B., C. D., E. F. and Gr. H., and the said 
 underwriters then severally executed a certain policy of insurance 
 upon the said ship, and upon the said goods so laden on board the 
 said ship as aforesaid, upon and for a voyage from the port of Lon; 
 don to the Island of Saint Vincent in the West Indies: And the 
 JURORS AFORESAID, upon their oath aforesaid, do further present, 
 that the said J. S., J. W. and E. W., in further pursuance of and 
 according to the said conspiracy, combination, confederacy and agree- 
 ment among themselves, had as aforesaid, afterwards, and after the 
 
Conspiracy. 943 
 
 ' said ship sailed from the port of London aforesaid upon tlie voyage 
 aforesaid, to wit, on the fourth day of September, in the year afore- 
 said, did remove and unlade from on board the said ship divers 
 goods insured as aforesaid, of great value, to wit, of the value of four 
 hundred pounds, before the said ship had reached the port or place 
 of destination aforesaid : And the jurors aforesaid, upon their 
 oath aforesaid, do further present, that in further pursuance of and 
 according to the said conspiracy, combination, confederacy and 
 agreement amongst themselves had as aforesaid, the said J. S., J. W. 
 and E. W. afterwards, to wit, on the twentieth day of September, in 
 the year aforesaid, on the high seas, did cut, bore and make, and did 
 cause and procure to be cut, bored and made,' divers holes in the 
 bottom and sides of the said ship or vessel, with intent thereby to 
 sink, cast away and destroy the said ship, and the goods in and upon 
 the said ship so laden as aforesaid, and with intent and design thereby 
 then wilfully and maliciously to prejudice the said several persons 
 who had so underwritten the said policy of insurance upon the said 
 ship and upon the goods so laden on board the same as aforesaid: 
 to the great damage of the said A. B., C. D., E. F. and G. H., who 
 had so underwritten the said policy as aforesaid, and against the 
 peace of our lady the Queen, her crown and dignity. See the prece- 
 dent, 6 Went. 387. And see the following precedents:— of an indict- 
 ment for a conspiracy to embezzle money collected on a brief, C. C. C. 
 136 ; to cheat a man out of money by pretending to secure to him an 
 annuity, 4 Went. 80, 89 ; to get from a man his acceptances upon pre- 
 tence of getting them discounted, 6 Went. 378 ; to defraud a man of 
 money under pretence of procuring a place, C. C. C. 127, 133 ; to blow 
 up the walls of a prison, C. C. C. 422 ; to escape out of prison, 4 Went. 
 116 ; to raise the price of victuals (salt), C. C. C. 130; to obtain a nolle 
 prosequi to an indictment by fraud, C. C. C. 138; to give a false cer- 
 tificate of a road being in repair, 4 Went. 125 ; and see E. v. Mawbey, 
 6 T. R. 619; to throw a burthen upon the parish, by the parish officers 
 of another parish, persuading a pauper of the former parish to marry 
 a female pauper of their parish, C. C. C. 128 ; X A. & E. 706 ; and 
 see now the! diS Vict. c. 101, s. 8; to bring a pregnant pauper to settle 
 in a parish, 4 Went. 124; to procure the defilement of a girl, 2 Den. 
 80 ; wrongfully to hold a man to bail, 4 Went. 94 ; to withdraw 
 customers from a brewer, 4 Went. 106 ; to injure gv/nmakers in their 
 trade, 4 Went. 439 ; to ruin a player in his profession, 6 Went. 443 ; 
 to accuse a woman of incontinence with defendant, in order to make her 
 marry him, 4 Went. 79 ; to induce a girl to become a common prosti- 
 tute, 4:F.&F. 160. 
 
 Eoidmce. 
 
 As to the evidence, see ante, p. 941. Prove the conspiracy, either 
 expressly, or prove one or more of the overt acts laid, and that the 
 defendants were either engaged in the commission of them or caused 
 or procured their commission, from which the jury may fairly pre- 
 sume the conspiracy. 
 
 As to combinations by workmen to enhance their wages, etc., etc., see 
 forms of indictments at common law, C. C. C. 127, 134 ; 4 Went. 100, 
 103, 113, 120; 6 Went. 375. See also R. v. Bykerdike, I M. S Rob. 
 179: R. V. Rowlands, 2 Den. 364: 17 Q. B. 671 ; 21 L. J. (M. C.) 
 81 ; ante, p. 939 : R. v. DuffiM., 5 Cox, 404 : Walsby v. Anley, 30 
 L. J. {M. C.) 121 : O'Neill v. Longmam, i B. d S. 376 : O'Neill v. 
 
944 ConspiraCij, 
 
 Kruger, i B. d S. 389 : S. v. Druitt, 10 Cox, 592, 601, 602 ; E. v. 
 Shepherd, 11 Cox, 325. Assaults in pursuance of such combinations 
 are now punishable with hard labour, besides imprisonment, etc., by 
 24 <fe 25 Vict. c. 96, s. 41 (ante, p. 685). See the stat. 6 G. 4, c. 129 
 (amended and explained by 22 Vict. c. 34), !/)teA repeals the former 
 statutes upon this subject, and amends and consolidates their various 
 provisions. 
 
( 945 ) 
 
 BOOK II. 
 
 PART IV. 
 
 ACCESSOEIES, ETC. 
 
 PRINCIPALS IN THE SECOND DEGREE. 
 
 Statutes. 
 
 24 & 26 Vict. c. 96, s. 98 — Pvmishment of Principals in the second 
 Degree and Accessories, for Larcenies.^ — In case of every felony 
 punishable under this act, every principal in the second degree, and 
 eveiy accessory before the fact, shall be punishable in the same 
 manner as the principal in the first degree is by this act punishable ; 
 and every accessory after the fact to any felony punishable under 
 this act (except only a receiver of stolen property), shall on convic- 
 tion be liable, at the discretion of the court, to be imprisoned for 
 any term not exceeding two years, with or without hard labour, and 
 with or without solitaiy confinement; and every person who shall 
 aid, abet, counsel, or procure the commission of any misdemeanor 
 punishable under this act, shall be liable to be indicted and punished 
 as a principal oflender. 
 
 24 (& 25 Vict. c. 97, s. 56 — Punishment of Principals in the second 
 Degree and Accessories, for Arson, Malicious Injuries, etc.'] — In the 
 case of every felony punishable under this act, every principal in the 
 second degree, and every accessory before the fact, shall be punish- 
 able in the same manner as the principal in the first degree is by this 
 act punishable ; and every accessory after the fact to any felony 
 punishable under this act shall on conviction be liable, at the dis- 
 cretion of the court, to be imprisoned for any term not exceeding 
 two yeai'S, with or without hard labour, and with or without solitary 
 confinement ; and every person who shall aid, abet, counsel, or pro- 
 cure the commission of any misdemeanor, punishable under this act, 
 shall be liable to be proceeded against, indicted and punished as a 
 principal offender. 
 
 24 d 25 Vict. v. 98, s. 49 — Punishment of Principals in the second 
 Degree and Accessories, for Forgery.']— In the case of eveiy felony 
 punishable under this act, every principal in the second degree, and 
 every accessory before the fact, shall be punishable in the same 
 manner as the principal in the first degree is by this act punishable; 
 and every accessory after the fact to any felony punishable under 
 this act shall on conviction be liable, at the discretion of the court, 
 
 s s 5 
 
946 Accessories, etc. 
 
 to be imprisoned for any term not exceeding two years, with or 
 without hard labour and with or without solitary confinement ; and 
 every person who shall aid, abet, counsel, or procure the commis- 
 sion of any misdemeanor punishable under this act, shall be liable 
 to be proceeded against, indicted and punished as a principal 
 offender. 
 
 24 <& 25 Vict. c. 99, s. 35 — Punishment of Principals in the second 
 Degree and Accessories, for Coining.'] — In the ease of eveiy felony 
 punishable under the act, every principal in the second degree, and 
 every accessory before the fact, shall be punishable in "the same 
 manner as the principal in the first degree is bj' this act punishable; 
 and every accessory after the fact to any felony punishable under 
 this act shall be liable to be imprisoned for any term not exceeding 
 two years, with or without hard labour. 
 
 24 S 25 Vict. c. 100, s. 67 — Punishment of Principals in the second 
 Degree and Accessories, for Offences against the Person.'] — In the case 
 of every felony punishable under this act, every principal in the 
 second degree, and every accessory before the fact, shall be punish- 
 able in the same manner as the principal in the first degree is by this 
 act punishable ; and every accessory after the fact to any felony 
 punishable under this act (except murder) shall be liable to be im- 
 prisoned for any term not exceeding two years, with or without hard 
 labour ; and every accessory after the fact to murder shall be liable, 
 at the discretion of the court, to be kept in penal servitude for life or 
 for any term not less than, three years [nowfhe years, 27 S 28 Vict, 
 c. 47, s. 2, ante, p. 173], or to be imprisoned for any term not exceed- 
 ing two years, with or without hard labour; and whosoever shall 
 counsel, aid, or abet the commission' of any indictable misdemeanor, 
 punishable under this act, shall be liable to be proceeded against, 
 indicted and punished as a principal offender. 
 
 7 TF. 4 <§ 1 Viet. c. 88, s.A,— Punishment of Principals in the second 
 Degree and Accessories, for Piracy.] — In the case of every felony 
 punishable under this act, every principal in the second degree, and 
 every accessoiy before the fact, shall be punishable with death or 
 otherwise, in the same manner as the principal in the first degree is 
 by this act punishable ; and every accessory after the fact to any 
 felony punishable under this act shall, on conviction, be liable to be 
 imprisoned for any term not exceeding two years. 
 
 7 TF. 4 c§ 1 Vict. c. 36, s. 35 —Pimishment of Principals in the second 
 Degree and Accessories, for Offences against the Post-Office.] — In the 
 case of every felony punishable under the Post-office acts, every 
 principal in the second degree, and every accessoiT- before the fact, 
 shall be punishable in the same manner as the principal in the first 
 degree is by the Post-office acts punishable ; and every accessory 
 after the fact to any felony punishable under the Post-office acts 
 (except against a receiver of any property or thing stolen, taken, em- 
 bezzled, or secreted), shall, on conviction, be liable to be imprisoned 
 for any term not exceeding two years ; and eveiy person who shall 
 aid, abet, counsel, or procure the commission of any misdemeanor, 
 punishable under the Post-office acts, shall be liable to be indicted 
 and punished as a principal offender. 
 
Accessories, etc. 947 
 
 Indictment. 
 
 After stating the offence of the principal in the first degree, and im- 
 mediately hefore the conclusion of the indictment, charge the principal 
 in the second degree, thus:'] — And the jurors aforesaid, upon their oath 
 aforesaid, do further present, that J. W., on the day and year afore- 
 said, feloniously was present, aiding, abetting, and assisting the said 
 J. S. the [felony and larceny] aforesaid to do and commit ; against 
 the peace, etc. 
 
 Where a statute creates a felony, and punishes with death persons 
 guilty thereof, without making provision as to persons present aidinij 
 and abetting, principals in the second degree are thereby punishable 
 with death, as well as principals in the first degree. R. v. Midicinter, 
 Fast. App. 415: Coalheavers' case, 1 Leach, 66. So, where a statute 
 makes a common- law felony by name punishable viith death (as in the 
 case of murder, rape, sodomy, robbery and burglary) those present 
 aiding and abetting in the offence are impliedly punishable with death, 
 although the statute makes no mention of them. 1 Hale, 537 ; Post. 
 359. But where a statute imposes the punishment of death upon the 
 person committing the offence, and not upim the offence by name, those 
 present aiding and abetting merely are not punishable with death, that 
 person only who actually committed the offence being deemed to he 
 within the statute. Fast. 356, 357 : R. v. Paget, Post. 355. Yet, in 
 this latter case, if the accessory be expressly within the statute as well 
 as the person actually committing the offence, it must be deemed vir- 
 tually to include the principal in the second degree liy necessary impli- 
 cation. Hee R. V. Gogerly, R. Sf R. 343. This was the rule upon the 
 construction of statutes be/ore the abolition of the benefit of clergy, and 
 it is still applicable, because no person can be punished with death, 
 unless it be for somefelimy which was before excluded from the benefit 
 of clergy, or made punishable with death by some subsequent statute : 
 7 Sf8 G.4:,c. 28, s. 7. But this rule is now of less general importance, 
 because the various statutes upon which these questions have arisen are 
 now repealed; and by statutes 24 Sf 25 Vict. c. 96, s. 98 (larceny, etc.) ; 
 24 Sf 25 Viet. c. 97, s. 56 (arson and malicious injuries) ; 24 ^ 25 Vict, 
 c. 98, s. 49 (forgery) ; 24 ^ 25 Vict. c. 99, «. 35 (coining); 24 ic 2o 
 Vict. c. 100, s. 67 (offences against the person) ; 1 W. i S^ \ Vict, 
 c. 88, s. 4 (piracy) ; and 7 W.i 6f I Vict. c. 36, s. db (offences against 
 the post-office), which include the offences of most general occurrence, 
 principals in the second degree in felonies punishable by these acti 
 respectively are punishable in the same manner as principals in the first 
 degree. 
 
 Where, however, upon the construction of any particular statute, 
 principals in the second degree are not punishable with death, and no 
 punishment is prescribed by the statute, then principals in the second 
 degree may be kept to penal servitude for not more than seven }ior less 
 than five years, or imprisoned (with or uithout hard labour) for the 
 whole or any part of the imprisonment, and with or without solitary 
 confinement, such confinement not exceeding one month at any one time, 
 nor three months in any one year, 7 VT. 4 ^ 1 Vict. c. 90, s. 5 (ante, 
 p. 174); 7 ^ 8 G. 4, c. 28, s. 9 (ante, p. 173), not exceeding two years; 
 and, if a male, may be once, twice, or thrice publicly or privately 
 whipped, in addition to the imprisonment, if the court shall think fit, 
 7 Sc% G. i,c. 28, s. 8 (ante, p 173) ; 20 ^ 21 Vict. c. 3 (ante, p. 172) ; 
 27' Jr 28 Vict. c. 47, ». 2 (ante, p. 173). ' See7 ^% G. 4, c. 28, s. 10 
 (ante, p. 173). 
 
948 Accessories, etc. 
 
 In the case of a felony at common law not punishable with death, 
 and in cases of felony at common law or by statute, where the prin- 
 cipal in the first degree is expressly, and the principal in the second 
 degree is by construction of law, punishable with death {vide supra), 
 the pleader may charge the principal in the second degree either as 
 principal in the first degree (for proof that he was present aiding and 
 abetting willm such a case maintain an indictment charging him with 
 having actually committed the offence, see Mackally's case, 9 Co. 
 67 b; 1 Bale, i38: R. v. Towle, R. Sj- R. SU {ante, pp. 10, 11), or 
 
 05 being present .aiding and abetting, as in the form above given, at 
 his option. R..\. Crisham, C. ic Mar. 187: jR v. Downing, 1 Den. 
 52 ; 2 C. ^ K. 382 : see ante, p. 11. A., B. and C were indicted for 
 murder; in the first count, as principals in the first degree; and in the 
 second A . was indicted as a principal in the first degree ; and B. and C. 
 as principals in the second degree ; the grand jury ignored the first count 
 as to B. amd C, and found a true bill on the second count against all ; 
 it seems that B. and V. might be convicted on the second count, though 
 A. was acquitted. B,. y. Phelps, C. ^ Mar. 180. 
 
 Evidence. 
 
 The defendant must be proved to have been present aiding and 
 abetting in the commission of the offence. 
 
 Presence, in this sense, is either actual or constructive. It is not 
 necessary that the party should be actually present, an ear or eye- 
 witness of the transaction; he is, in construction of law, present, aid- 
 ing and abetting, if with the intention of giving assistance he be 
 near enough to afford it, should the occasion arise. Thus, if he be 
 outside the house watching to prevent sui-prise, or the like, whilst his 
 companions are in the house committing the felony, such constructive 
 presence is sufficient to make him a principal in the second degree. 
 Fost. 350. See R. v. Borthwick, 1 Dougl. 207: R. v. Gogerly, B. & 
 R. 343 : R. v. Owen, 1 Mood. C. C. 296. But he must be sufficiently 
 near to give assistance ; R. v. Stewart, R. d> R. 363; and the mere 
 circumstance of a party's going towards a place where a felony is to 
 be committed, in order to assist to carry off the property, and assist- 
 ing in carrying it off, will not make him a principal in the second 
 degree, unless, at the time of the felonious taking, he were within 
 such a distance as to be able to assist in it. R. v. Kelly, R. & R. 421. 
 So, where two persons broke open a warehouse, and stole thereout a 
 quantity of butter, which they carried along the streets thirty yards, 
 and then fetched the pi-isoner, who, being apprised of the robbery, 
 assisted in carrying away the property, it was holden that he was not 
 a principal, but only an accessory. R. v. King, R. & R. 332 : see 
 R. V. M'MaUn, Id. : R. v. Dyer, 2 East, P. C. 767. And although 
 an act be committed in pursuance of a previously-concerted plan be- 
 tween the parties, those who are not present, or so near as to be able 
 to afford aid and assistance at the time when the offence is com- 
 mitted, are not principals, but accessories before the fact. R. v. 
 Soares, R. <{; R.25: R. v. Davis, Id. 113: R. v. Else, Id. 143: R. v. 
 Badcock, Id. 249: R. v. Manners, 1 C.<S; P. 801: R. v. Howell, 9 C. 
 
 6 P. 437: R. V. Tuckwell, C. & Mar. 215. So, if one of them have 
 been apprehended before the commission of the offence by the other, 
 he can be considered only as an accessory before the fact. R. v. 
 Johnson, C. & Mar. 218. But presence during the whole of the trans- 
 action is not necessary; for instance, if several combine to forge 
 
Accessories, etc. 949 
 
 an instrument, and each executes by himself a distinct part of the 
 forgery, and they are not together when the instrument is completed, 
 they are, nevertheless, all guilty as principals. JS. v. Bingley, R. & 
 B. 446. See 2 East, P. C. 768. As if A. counsel B. to make the 
 paper, C. to engrave the plate, and D. to fill up the names of a forged 
 note, and they do so, each without knowing that the others are em- 
 ployed for that purpose, B., C. and D. may be indicted for the for- 
 gery, and A. as an accessory ; B. v. Dade, 1 Mood. C. C. 307 ; for, 
 if several make distinct parts of a forged instrument, each is a 
 principal, although he do not know by whom the other parts are 
 executed, and though it is finished by one alone in the absence of the 
 others. B. v. Kirkwood, 1 Mood. C. C. 304. See R. v. Kelly, 2 C. & 
 K. 379. 
 
 There must also be a participation in the act, for although a man 
 be present whilst a felony is committed, if he take no part in it, and 
 do not act in concert with those who commit it, he will not be a prin- 
 cipal in the second degree, merely because he did not endeavour to 
 prevent the felony, or apprehend the felon. 1 Hale, 439; Fost. 350. 
 It is not necessary, however, to prove that the party actually aided 
 in the commission of the offence; if he watched for his companions, 
 in order to prevent surprise ; or remained at a convenient distance, in 
 order to favour their escape, if necessary; or was in such a situation 
 as to be able readily to come to their assistance, the knowledge of 
 which was calculated to give additional confidence to his companions 
 — in contemplation of law he was present aiding and abetting. So a 
 participation, the result of a concerted design to commit a specific 
 offence, is sufficient to constitute a principal in the second degree. 
 Thus, if several act in concert to steal a man's goods, and he is in- 
 duced by fraud to trust one of them, in the presence of the others, 
 with the possession of the goods, and then another of the party entice 
 the owner away, that he who has the goods may carry them off, they 
 are all guilty as principals. B. v. Standley, B. & B. 305: and see 
 B. V. Passey, 1 C.& P. 282: R. v. Lockett, Id. 300. So it has been 
 holden, that to aid and assist a person to the jurors unknown to ob- 
 tain money by ring-dropping, is felony, if the jury find that the pri- 
 soner was confederate with the person unknown to obtain the money 
 by means of this practice. B. v. Moore, 1 Leach, 314. So, if two 
 persons driving carriages incite each other to drive furiously, and one 
 of them, so driving, run over and kill a man, it is manslaughter in 
 both. B. v. Swindall, 2 C. & K. 230. If one encourage another to 
 commit suicide, and be present abetting him while he does so, such 
 person is guilty of murder as a principal; and if two persons en- 
 courage each other to self-murder, and one kills himself, but the 
 other fails in the attempt, he is a principal in the murder of the other. 
 B. v. Dyscm, B. & B. 523. See B. v. Bussell, 1 Mood. C. C. 356 : B. v. 
 Alison, 8C.<6P. 418. So likewise, if several persons combine for an 
 unlawful purpose, or for a purpose to be carried into effect by unlaw- 
 ful means (see Fost. 351, 352); particularly if it be to be carried into 
 effect notwithstanding any opposition that may be offered against it; 
 Fost. 353, 354; and one of them, in the prosecution of it, kill a man, 
 it is murder in all who are present, whether they actually aid or abet 
 or not {see the Sessinghwrst-hous'e case, 1 Hale, 461), provided the 
 death were caused by the act of some one of the party in the course 
 of his endeavours to effect the common object of the assembly. 1 
 Hawle. c. 31, s. 52; Fost. 352: B. v. Sodson, 1 Leach, 6: B. v. Plum- 
 mer Kel. 109. And it is not sufficient that the common purpose is 
 
950 Accessories, etc. 
 
 merely unlawful; it must either be felonious, or if it be to commit a 
 misdemeanor, then there must be evidence to show that the parties 
 engaged intended to carry it out at all hazards. E. v. Sheet, 4 F. <£• 
 F. 931; see also R. v. Luck, 3 F. d; F. 483: B. v. Draw, 8 Cox, 
 335. And the act must be the result of the confederacy ; for if 
 several are out for the purpose of committing a felony, and upon 
 alarm and pursuit run different ways, and one of them kill a piirsuer 
 to avoid being taken, the others are not to be considered as princi- 
 pals in that offence. S. v. White, R. & R. 99. Thus, where a gang 
 of poachers, consisting of the prisoners and Williams, attacked a 
 gamekeeper, beat him, and left him senseless upon the ground, but 
 Williams returned, and whilst the gamekeeper was insensible upon 
 the ground took from him his gun, pocket-book, and money: Park, J., 
 held this to be a robbery by Williams only. R. v. Hawkins, 3 C. <& 
 P. 392. The pm-pose must also be unlawful; for if the original ob- 
 ject be lawful, and be prosecuted by lawful means, should one of the 
 party in the prosecution of it kill a man, although the party killing, 
 and all those who actually aid and abet him in the act, may, accord- 
 ing to circumstances, be guilty of murder or manslaughter, yet the 
 other persons who are present, and who do not actually aid and abet, 
 are not guilty as principals in the second degree. Fost. 354, 355 ; 
 2 Hawk. c. 29, s. 9. 
 
 A mere participation in the act, without a felonious participation in 
 the design, will not be sufficient. 1 East, P. C. 257 : R. v. Plummer, 
 Kel. 109. Thus, if a master assault another with malice prepense, 
 and the servant, ignorant of his master's felonious design, take part 
 with him, and kill the other, it is manslaughter in the servant, and 
 murder in the master. 1 Hale, 446. So on an indictment under 
 the stat. 1 Vict. c. 85, s. 2, charging A. with the capital offence of 
 inflicting a bodily injury dangerous to life, with intent to commit 
 murder, and B. with aiding and abetting him, it was held to be 
 essential, to make out the charge against B., that he should have 
 been aware of A.'s intention to commit murder. R. v. Oruse, 8 C. (& 
 P. 541. 
 
 In the case of murder by duelling, in strictness both of the seconds 
 are principals in the second degree ; yet Lord Hale considers that, as 
 far as relates to the second of the party killed, the rule of law in this 
 respect has been too far strained; and he seems to doubt whether sucli 
 second should be deemed a principal in the second degree. 1 Hale, 
 442, 452: but see R. v. Perkins, 4 C. & P. 637: R. v. Murphy, 6 C. 
 & P. 103 : R. V. Young, 8 C. d P. 644 : R. v. Cuddy, I C. <& K. 210 
 (ante, p. 10). 
 
 If the principal was insane at the commission of the act, no person 
 can be convicted as an aider and abettor of the act. R. v. I)/ler, 
 8 C. &P. 616 (ante, p. 10). 
 
 ACCESSORIES BEFORE THE FACT. 
 
 Statute. 
 
 24 <& 25 Vict. c. 94, s. 1 — Accessories before the fact, indictable as 
 Principals.'] — Whosoever shall become an accessory before the fact 
 to any felony, whether the same be a felony at common law, or by 
 
Accessories, etc. 951 
 
 virtue of any act passed or to be passed, may be indicted, tried, con- 
 victed and punished in all respects as if he were a principal felon. 
 
 Sect. 2 — Accessories before the fact may le indicted as such, or as 
 substantive Felons.'] — Whosoever shall counsel, procure or command 
 any other person to commit any felony, whether the same be a felony 
 at common law or by virtue of any act passed or to be passed, shall 
 be guilty of felony [see R. v. Gregory, post, p. 955], and may be in- 
 dicted and convicted either as an accessory before the fact to the 
 principal felony, together with the principal felon, or after the con- 
 viction of the principal felon, or may be indicted and convicted of 
 a substantive felony whether the principal felon shall or shall not 
 have been previously convicted, or shall or shall not be amenable to 
 justice, and may thereupon be punished in the same manner as any 
 accessoiy before the fact to the same felony, if convicted as an ac- 
 cessory, may be punished. 
 
 Sect. 5 — Prosecution of Accessory after Principal has been convicted, 
 but not attainted."] — If any principal offender shall be in anywise 
 convicted of any felony, it shall be lawful to proceed against any 
 accessory, either before or after the fact, in the same manner as if 
 such principal felon had been attainted thereof, notwithstanding 
 such principal felon shall die, or be pardoned, or otherwise delivered 
 before attainder; and every such accessory shall upon conviction 
 suffer the same punishment as he would have suffered if the principal 
 had been attainted. 
 
 Sect. 7 — Trial of Accessories.] — Where any felony shall have been 
 wholly committed within England or Ireland, the offence of any 
 person who shall be an accessory either before or after the fact to 
 any such felony may be dealt with, inquired of, tried, determined, 
 and punished by any court which shall have jurisdiction to try the 
 principal felony, or any felonies committed in any county or place in 
 which the act by reason whereof such person shall have become 
 such accessory shall have been committed ; and in every other case 
 the offence of any person who shall be an accessory either before or 
 after the fact to any felony may be dealt with, inquired of, tried, 
 determined and punished by any court which shall have jurisdiction 
 to try the principal felony or any felonies committed in any county 
 or place in which such person shall be apprehended or be in custody, 
 whether the principal felony shall have been committed on the sea 
 or on the land, or begun on the sea and completed on the land, or 
 begun on the land and completed on the sea, and whether within 
 her Majesty's dominions or without, or partly within her Majesty's 
 dominions and partly without ; provided that no person who shall 
 be once duly tried either as an accessory before or after the fact, or 
 for a substantive felony under the provisions hereinbefore contained, 
 shall be liable to be afterwards prosecuted for the same offence. ■ 
 
 Indictment of, together with the Principal. 
 
 After charging the principal loith the offence, ami immediately before 
 the conclusion of the indictment, you may charge the accessory thus:] — 
 And the jurors aforesaid, upon their oath aforesaid, do further present, 
 that J. W., before the said [felony and larceny] was committed in 
 
952 Accessories, etc. 
 
 form aforesaid, to wit, on the first day of August, in the year afore- 
 said, did feloniously and maliciously incite, move, procure, aid, 
 counsel, hire, and command, the said J. S. the said [felony and 
 larceny] in manner and form aforesaid to do and commit ; against the 
 peace, etc., etc. The act of accessory before the fact is described in 
 the several statutes creating new felonies, or punishing with death the 
 principals and accessories in felonies at common law, in different terms. 
 But if the statute do not mention accessories, or in the case of a felony 
 at common law, the words in the above form " incite, move, procure," 
 etc., loill be mfficiently indicative of the offence. And even where the 
 statute does expressly describe the offence of accessory in terms, it is not 
 absolutely necessary to describe it in the same terms in the indictment; 
 a description in equivalent terms will be sufficient: thus, where the 
 words in the statute were " command, hire, or counsel," and in the in- 
 dictment " excite, move, and procure," the indictment was holden good: 
 because the words were of the same legal import. R. v. Grevil, 1 And. 
 195. A man may be indicted as accessory to one of several principals, 
 or to all: and if he be indicted ai accessory to all, he may be convicted 
 on such indictment as accessm-y to one or some of them. Lord Sanchar's 
 case, 9 Co. 119 ; Fost. 361 ; 1 Hale, 624. (See ante, p. 14.) An in- 
 dictment charging that a certain evil-disposed person feloniously stole 
 certain goods, arid that A. B. feloniously incited the said evil-disposed 
 person to commit the said felony, is bad as against A. B. R. v. 
 Caspar, 2 Mood. C. C. 101 ; 9 C. <& P. 289. As to the venue, see ante, 
 pp. 36, 951. 
 
 The offence of accessory before the fact is felony, and is now in all 
 cases punishable in the same manner as if the accused were the principal 
 felon. 24 <& 25 Vict. c. 94, s. 1. See also, as to larcenies and other 
 offences connected therewith, 24 S 25 Vict. c. 96, s. 98 (ante, p. 945); 
 as to arson and malicious injuries to property, 24 & 25 Vict. c. 97, s. 66 
 (ante, p. 945) ; as to forgery, 24 <& 25 Vict. c. 98, s. 49 (ante, p. 945) ; 
 as to coinage offences, 24 & 25 Vict. c. 99, s. 35 (ante, p. 946) ; as to 
 offences against the person, 24 <& 25 Vict. c. 100, s. 67 (ante, p. 946) ; 
 as to post-office offences, 7 TF. 4 c§ 1 Vict. c. 36, s. 35 (ante, p. 946) ; 
 as to piracy, 7 W. i (& 1 Vict. c. 88, s. 4 (ante, p. 946). Wherever 
 specific punishments are provided for accessories before the fad, in such 
 cases accessories must be punished under the particular statute ; but 
 where no punishment is provided, then accessories may be kept to penal 
 servitude for not more than seven nor less than five years, or impri- 
 soned (with or without ha/rd labour), for the whole or any part of the 
 imprisonment, and with or without solitary confinement, 7 <& S G. 4, 
 c. 28, s. 9 (ante, p. 173), su^h confinement not exceeding one month at 
 any one time, nor three months in any erne year, 7 W. i d 1 Vict. c. 90, 
 s. 5 (ante, p. 174), not exceeding two years; and, if a male, may be once, 
 twice, or thrice publicly or privately whipped, in addition to the im- 
 prisonment, if the court shall think fit. 7 <& % G. 4, c. 28, s. 8 (omie, 
 p. 173) ; 20 <ft 21 Vict. c. 3 (ante, p. 172) ; 27 & 28 Vict. c. 47, s. 2 
 (ante, p. 173). 
 
 It is only in felonies that there can be accessories ; in high treason, 
 every instance of incitement, etc., which in felony would make a man 
 an accessory before the fact, will make him a principal traitor, Fost. 
 341, and he must be indicted as such. 1 Hale, 238. Also, all those 
 who in felony would be accessories before the fact, in offences under 
 felony are principals, and must be indicted as such. 4 Bl. Com. 36 : 
 R. V. Clayton, \ C. & K. 128 : R. v. Moland, 2 Mood. C. C. 276 : R. 
 V. Greenwood, 2 Den. 453; 21 L. J. (M. C.) 127. In manslaughter; 
 
Accetsories, etc. 953 
 
 however, there can be no accessories before the fact, for the offence 
 is sudden and unpremeditated ; and therefore, if A. be indicted for 
 murder, and B. as accessory, if the jury find A. guilty of manslaughter, 
 they must acquit B, 1 Hale, 347, 450, 616. But this position must 
 be limited to those cases where the act which causes the death is 
 sudden and unpremeditated; for there are cases of manslaughter 
 where there may be accessories before the fact. M. v. Gaylor, Dears. 
 & B. 288. Thus a man may be such an accessory by procuring poison 
 for a pregnant woman to take in order to procure abortion, and 
 which she takes and thereby causes her death. Id. During the argu- 
 ment in that case, Bramwell, B., said — " Suppose a man for mischief 
 gives another a strong dose of medicine, not intending any further 
 injury than to cause him to be sick and uncomfortable, and death 
 ensues, would not that be manslaughter? Suppose, then, another 
 had counselled him to do it, would not he who counselled be an acces- 
 sory before the fact ?" See also R. v. Smith, 2 Cox, 233, per Parke, B. 
 Formerly an accessory could not, without his own consent, unless 
 tried with the principal, be brought to trial until the guilt of his 
 principal had been legally ascertained by conviction (1 A. st. 2, c. 9), 
 or outlawry. Fost. 360 ; 1 Bale, 623. But see now stat. 24 d: 25 
 Vict. c. 94, ss. 2, 5, and the proviso in s. 7 (arete, p. 951). Where 
 the principal and accessory are tried together, one being charged as 
 )irincipal, and the other as accessory (which will now probably never 
 occur), if the principal plead otherwise than the general issue, the 
 accessory shall not be bound to answer until the principal's plea be 
 first determined. 9 S. 7, 19 ; 1 Hale, 624 ; 2 Inst. 184. So, also, 
 where the principal does not appear to take his trial, but the acces- 
 sory does, the latter is not compellable to plead. R. v. Ashmall, 9 
 C. & P. 236. But if the general issue be pleaded, then the jury 
 shall be charged to inquire first of the principal, and, if they find him 
 not guilty, then to acquit the accessory ; but if they find the prin- 
 cipal guilty, they are then to inquire of the accessory. 1 Hale, 624; 
 2 Inst. 184. Even in a case where the principal was indicted for 
 burglary and larceny in a dwelling-house, and the accessory charged 
 in the same indictment as accessory before the fact to the said 
 "felony and hwrglary," and the jury acquitted the principal of the 
 burglary, but found him guilty of the larceny — it seems the judges 
 were of opinion that the accessory should have been acquitted ; for 
 the indictment charged him as accessory to the burglary only, and 
 the principal being acquitted of that, the accessoiy should be ac- 
 quitted also. R. V. Donnelly and Vaughan, R. & R. 310 ; 2 Marsh, 
 571. See also 24 c6 25 Vict. c. 94, s. 6, ante, pp. 13, 14. 
 
 Evidence. 
 
 The prosecutor, after proving the guilt of J. S., must prove that 
 J. W. had previously procured, hired, advised, or commanded J. S. to 
 commit the larceny ; and whether this wei'e done directly or through 
 the intervention of a third person is immaterial. Fost. 125. (See 
 ante, p. 11.) 
 
 As it is essential to constitute the offence of accessory, that the 
 party should be absent at the time the offence was committed, 1 Hale, 
 615, 616, if it appear therefore that J. W. was present when the 
 larceny in question was committed, he must, if indicted as an acces- 
 sory, be acquitted. R. v. Gordon, 1 Leach, 515. 
 
 The accessory, on the other hand, may controvert the guilt of his 
 
954 Accessories, etc. 
 
 principal. Fast. 365. So, he may prove that, after he had so ordered, 
 hired, or advised J. S., he repented of it, and actually countermanded 
 the order, etc. 1 Hale, 617. So, if it appear that the accessory 
 ordered or advised one crime, and that the principal committed an- 
 other ; as, for instance, if he commanded J. S. to bum a house, and 
 instead of doing so he committed a larceny, he must be acquitted. 
 1 Hale, 617. So, if J. W. ordered J. 8. to commit a crime against 
 A., and, instead of doing so, he wilfully committed the same crime 
 against B., J. W. ■would not be answerable as accessory : but if J. S. 
 had committed the offence against B. by mistake, instead of A., it 
 seems it would be otherwise ; Fost. 370 et seq.; but see 1 Hale, 617 ; 
 8 Inst. 51. But it is clear that the accessory is liable for all that 
 ensues upon the execution of the unlawful act commanded ; as, for 
 instance, if A. commanded B. to beat C, and he beat him so that he 
 dies, A. is accessory to the murder. 4 Bl. Corn. 87 ; 1 Hale, 617. 
 Or if A. command B. to burn the house of C, and in doing so the 
 house of D. is also burnt, A. is accessory to the burning of D.'s house. 
 Plowd. 475. So if the offence commanded be effected, although by 
 different means from those commanded ; as, for instance, if J. W. 
 hire J. S. to poison A., and instead of poisoning him he shoot him, 
 J. W. is nevertheless liable as accessory. Fost. 369, 370. Where 
 the procurement is through an intermediate agent, it is not necessary 
 that the accessory should name the person to be procured to do the 
 act. R. V. Cooper, b C. <& P. 535. 
 
 Indictme/tit against an Accessory before the Fact, as for a substantive 
 Felony, vmder 24 S 25 Vict. c. 94, s. 2. 
 
 Central Criminal Court, to wit : — The jurors for our lady the Queen 
 upon their oath present, that J. S. [or, that some person or persons 
 to the jurors aforesaid unknown], on the first day of June, in the 
 year [etc., etc., stating the felony, exclusive of the conclusion, " against 
 the peace," e<c.]. And the jurors aforesaid, upon their oath afore- 
 said, do further present, that J. W., before the said [felony and 
 larceny] was committed in form aforesaid, to wit, on the first day of 
 May, in the year aforesaid, did feloniously and maliciously incite, 
 move, procure, aid, counsel, hire, and command the said J. S. [or the 
 said person or persons to the jurors aforesaid unknown] the said 
 [felony and larceny] in manner and form aforesaid to do and commit ; 
 against the form [as ante, p. 347]. An indictment is properly framed 
 as for a substantive felony , which states in the first place that the prin- 
 cipal committed the felony, and then that the defendant incited, moved, 
 etc., him to commit it; although the principal has not been tried, and 
 does not appear to be amenable to justice. R. v. Wallace, C. d Mar. 
 200; 2 Mood. C. C. 200. 
 
 Evidence. 
 
 Prove the felony as already directed ante, passim: and then prove 
 the defendant's guilt as accessory, as directed amte, p. 953. 
 
 If the principal felon be known, the indictment should charge the 
 felony, etc., to have been committed by him, and not by a person 
 unknown. R. v. Walker, ante, p. 47 : and see R. v. Caspar, ante, 
 p. 952. 
 
Accessories, etc. 955 
 
 Indictment for soliciting a Person to commit an Offence. 
 
 Middlesex, to wit :— The jurors for our lady the Queen upon their 
 oath present, that J. S., on the first day of June, in the year of our 
 
 Lord , falsely, wickedly, and unlawfully did solicit and incite 
 
 one J. W., a servant of one J. N., feloniously to steal, take and carry 
 awaya large quantity, to wit, one hundred pounds weight of cotton 
 twist, of the goods and chattels of the said J. N. his master ; to the 
 great damage of the said J. N., to the evil example of all others in 
 the like case offending, and against the peace of our lady the Queen, 
 her crown and dignity. 
 
 Misdemeanor: fine or imprisonmentf or both. R. v. Biggins, 2 
 East, 5 : J?, v. Quail, ^F. & F. 1076. The soliciting cmd inciting a 
 person to commit a felony, where no felony is im, fact committed by the 
 person so solicited, still remains a misdemecmor only, notwithstanding 
 the 24 <& 25 Vict. c. 94, s. 2. H. v. Gregory, L. R., 1 C. C. E. 77 ; 36 
 L. J. {M. C.) 60. Where a defendant is indicted for a misdemeanor 
 committed by the soliciting cmother to do cm act, which, if done, would 
 amov/nt to a felony, and render the defendant, as an accessory before 
 the fact, also guilty of felony, it is unnecessary to negative the doing 
 of the cult, for it ccmnot be intended that a felony has been committed 
 where 7ione is charged. 1 Stark. Cr. PI. 148, 149 (2nd ed.) : R. v. 
 Higgins, 2 Ea^t, 5. 
 
 Eoidence. 
 
 Prove the soliciting or inciting, as alleged in the indictment. 
 Prove it in the same manner as you would prove the offence of ac- 
 cessory before the fact, except that this offence is committed, although 
 the larceny or embezzlement was not in fact committed. 
 
 ACCESSORIES AFTER THE PACT. 
 
 Statute. 
 
 24 & 25 Vict. c. 94, i. 3 — Accessories after the Fact may be indicted 
 as mch, or as substantive Felons.'] — Whosoever shaU become an ac- 
 cessory after the fact to any felony, whether the same be a felony at 
 common law or by virtue of any act passed or to be passed, may be 
 indicted and convicted either as an accessory after the fact to the 
 principal felony, together with the principal felon, or after the con- 
 viction of the principal felon, or mSy be indicted and convicted of a 
 substantive felony whether the principal felon shall or shall not have 
 been pi-eviously convicted, or shall or shall not be amenable to jus- 
 tice, and may thereupon be punished in like manner as any accessory 
 after the fact to the same felony; if convicted as an accessory, may 
 be punished. 
 
 Seat. 4 — Pimishment of Accessories after the Fact.'] — Every acces- 
 sory after the fact to any felony (except where it is otherwise 
 specially enacted), whether the same be a felony at common law or 
 by virtue of any act passed or to be passed, shall be liable, at the 
 discretion of the court, to be imprisoned in the common gaol or house 
 of correction for any term not exceeding two years. With or without 
 hard labour, and it shall be lawful for the com-t, if it shall think fit, 
 
956 Accessories, etc. 
 
 to require the offender to enter into his own recognizances and to 
 find sureties, both or either, for keeping the peace, in addition to 
 such punishment : provided that no person shall be imprisoned 
 under this clause for not finding sureties for any period exceeding 
 one year. 
 
 Indictment against, with the Principal. 
 
 After stating the offence of the principal, and immediately before the 
 conclusion of the indictment, charge the accessory after the fact thus:^ 
 — And the jurors aforesaid, upon their oath aforesaid, do further pre- 
 sent, that J. W., well knowing the said J. S. to have done and com- 
 mitted the said [felony and larceny] in form aforesaid, afterwards, to 
 wit, on the day and year aforesaid, him the said J. S. did feloniously 
 receive, harbour, and maintain; against the peace, etc., as in ordinary 
 cases. As to receiving stolem goods, etc., see ante, p. 432. As to the 
 venue, see ante, p. 36. On an indictment charging a man as a principal 
 felon only, he cannot be convicted of being an accessory after the fact. 
 M. V. Fallon,_ L. & C. 217; 32 L. J. {M. C.) 66. 
 
 Although in high treason there are no accessories after the fact, those 
 who in felonies would be accessories after the fact, being principals in 
 high treason; yet in their progress to conviction they must be treated as 
 accessories, and indicted specially for the receipt, etc., and not as prin- 
 cipal traitors. 1 Hale, 238. In offences under felony, there is no 
 penalty inflicted by the common law for receiving, hoerbouring, or main- 
 taining the principal; 1 Hale, 613; but in some few cases it is made 
 punishable by statute. Yet in these cases, if the act of the receiver 
 amount to a rescue, or to the obstructing an officer of justice in the exe- 
 cution of his duty, or the like, he would vmdoubtedly be indictable for it 
 as for a misdemeanor. 2 Hawk. c. 29, s. 4. {See ante, p. 15.) In 
 felonies at common law, the offence of the accessory is a felony; but, he 
 is not punishable vnth death by a statute imposing the punishment of 
 death on the principal, unless the statute in terms extend to accessories 
 also. In felonies created by statute, — if the statute makes no mention of 
 accessories, accessories after the fact are punishable as for a felony ; 
 see 3 Inst. 59; if it mention accessories before the fact, but not acces- 
 sories after, the latter, according to Lord Hale (1 Hale, 235, 236, 328), 
 are not punishable; Hawkins, however, is of a different opinion; 2 
 Hawk. c. 29, s. 14 ; but if it mention receivers, etc., they are in that 
 case punishable in the manner directed by the statute. Accessories 
 after the fact to murder may be kept to penal servitude for life or for 
 not less than Jive [27 & 28 Vict. c. 47, s. 2 {ante, p. 173)] years, or im- 
 prisoned, with or without hard labour, not exceeding two years. 24 <& 
 25 Vict. c. 100, s. 67. Accessories after the fact to larceny, etc. 
 (24 <& 25 Vict. c. 96, s. 98); to arson and malicious injuries (c. 97, 
 s. 56); to forgery {c. 98, s. 49); to coinage offences (c. 99, s. 35); to 
 offences against the person (c. 100, s. 67); to post-office offences (7 W. 
 4 cfe 1 Vict. c. 36, s. 35); to piracy {1 W. i <& 1 Vict. c. 88, s. 4); a/re 
 liable to imprisonment, vnth or without hard labour, not exceeding two 
 years {ante, pp. 945, 946). So are accessories after the fact to any 
 felony whether at common law or by statute, imless where it is otherwise 
 specially enacted, 24 S 25 Vict. c. 94, s. 4 (ante, p. 955)i 
 
 Accessories after the fact could not, until the stat. 11 d 12 Vict. c. 46, 
 be tried before the conviction or attainder of their principal, unless they 
 consented to it. 1 Hale, 623 ; 2 Hawk. c. 29, s. 45. Th^ might 
 however be tried with their principal; 1 Hale, 623 ; or separately f 
 
Accessories, etc. 957 
 
 after the principal had heen convicted, 7 O. 4, c. 64, s. 11, or attainted. 
 (See ante, p. 16.) And now they are triable as for a substantive 
 felony, in the same manner as accessories before. 24 <& 25 Vict. c. 94, 
 s. 3. And any number of accessories to the same felony may be 
 charged with substantive felonies in the same indictment. Id. s. 6 ; see 
 ante, pp. 13, 14. 
 
 Eaidence. 
 
 1. The prosecutor must prove the principal guilty of the felony 
 charged against him by the indictment, as in ordinary cases. 
 
 2. He must prove that J. W. received, harboured, or maintained 
 the principal, after he had so committed the felony; as, for instance, 
 that he concealed him in his house, Dalt. 530, 531, or shut the door 
 against his pursuers, until he should have an opportunity of escaping, 
 1 Hale, 619, or took money from him to allow him to escape, 9 H. 4, 
 1, or supplied him with money, a horse, or other necessaries, in order 
 to enable him to escape, Hale, Sum. 218; 2 Bawk. c. 29, s. 26, or 
 that the principal was in prison, and J. W. bribed the gaoler to let 
 him escape ; or conveyed instruments to him to enable him to break 
 prison and escape. 1 Hale, 621. 
 
 But merely suffering the principal to escape will not make the 
 party an accessory after the fact; for it amounts at most but to a 
 mere omission. 9 H. 4,/. 1; 1 Hale, 619. So, if a person supply 
 a felon in prison with victuals or other necessaries for his sustenance; 
 1 Hale, 620; or if a physician or surgeon professionally attend a 
 felon sick or wounded, although he know him to be a felon; 1 Hale, 
 332; or if a person speak or write in order to obtain a felon's pardon 
 or deliverance; 26 Ass. 47; or advise his friends to write to the wit- 
 nesses not to appear against him at his trial, and they write accord- 
 ingly ; 3 Inst 139 ; 1 Hale, 620 ; or even if he himself agree for 
 money, not to give evidence against the felon; Moor. 8; or know of 
 the felony and do not discover it; 1 Hale, 371, 618; none of these 
 acts would be sufficient to make the party an accessory after the 
 fact. He must be proved to have done some act to assist the felon 
 personally. R. v. Chappie, 9 C.(& P. 355. But if he employ another 
 person to harbour or relieve the felon, he will be equally guilty as if 
 he did so himself S. v. Jarvis, ^ M. <& Mob. 40. The mere receipt 
 of stolen goods, knowing them to have been stolen, does not at 
 common law constitute the receiver an accessory after the fact, but is 
 a bare misdemeanor punishable by fine and imprisonment. Foster's 
 Crown Law, 373; 1 Hale, 620; see ante, pp. 15, 436. The importance 
 of bearing this in mind will be seen on referring to R. v. Smith, L. R., 
 1 C. a R. 266; 39 L. J. (M. C.) 112 (ante, p. 436). 
 
 A wife is not punishable as accessory for receiving, etc., her hus- 
 band, although she know him to have committed felony; 1 Hale, 48, 
 621 : R. V. Manning, i C. & K. 903, n. ; for she is presumed to act 
 under his coercion. {See ante, p. 14.) But no other relationship of 
 parties can excuse the wilful receipt or assistance of felons; a father 
 cannot assist his child, a child his parent, a husband his wife, a 
 brother his brother, a master his servant, or a servant his master. 
 Id. 
 
 3. It must be proved that J. W., at the time he received or as- 
 sisted the principal felon, knew that he had committed a felony. 
 This knowledge may be proved either from the defendant's admis- 
 sions, or the like, or by evidence of circumstances from which the 
 
958 Accessories, etc. 
 
 jury may fairly presume it. (See ante, p. 235.) M. v. Beoeridge, 3 
 P. Wms. 439. 
 
 Indictment against am, Accessory after the Fact, the Principal being 
 Convicted. 
 
 After stating the offence of the principal and his conviction charge 
 the accessory after the fact <tes]: And the jurors aforesaid, upon their 
 oath aforesaid, do further present that J. W., well knowing the said 
 J. S. to have done and committed the said [felony and larceny] 
 aforesaid, after the same was so committed as aforesaid, to wit, on 
 the day and year aforesaid, him the said J. S. did feloniously receive, 
 harbour, and maintain; against the peace, etc., etc., as in ordinary 
 cases. Prove the conviction of the principal as directed ante, passim; 
 and the guilt of the accessory, as directed ante, p. 957. 
 
 An indictment as for a substantive felony may be in the same terms. 
 See R. V. Wallace, ante, p. 954. 
 
( 959 ) 
 
 BOOK II. 
 
 PART V. 
 
 OrFENCE COMMITTED AFTER PREVIOUS CONVICTION. 
 
 Statutes. 
 
 7 S8 GA, c. 28, s. 11 — Punishment of Felony after a previous Con- 
 viction for Felony.'] — Whereas it is expedient to provide for the more 
 exemplary punishment of offenders who commit felony after a pre- 
 vious conviction of felony, whether such conviction shall have taken 
 place before or after the commencement of this act: be it therefore 
 enacted, that if any person shall be convicted of any felony, not 
 punishable with death, committed after a previous conviction for 
 felony, such person shall, on such subsequent conviction, be liable, 
 at the discretion of the court, to be transported beyond the seas for 
 life, or for any term not less than seven years, or to be imprisoned 
 for any term not exceeding four years, and, if a male, to be once, 
 twice, or thrice publicly or privately whipped (if the court shall so 
 think fit), in addition to such imprisonment ; and in any indictment 
 for any such felony committed after a previous conviction for felony, 
 it shall be sufficient to state that the offender was at a certain time 
 and place convicted of felony, without otherwise describing the pre- 
 vious felony; and a certificate containing the substance and effect only 
 (omitting the formal part) of the indictment and conviction for the 
 previous felony, purporting to be signed by the clerk of the court, 
 or other officer having the custody of the records of the court where 
 the offender was first convicted, or by the deputy of such clerk or 
 officer (for which certificate a fee of six shillings and eight pence, 
 and no more, shall be demanded or taken), shall, upon proof of the 
 identity of the person of the offender, be sufficient evidence of the 
 first conviction, without proof of the signature or official character of 
 the person appearing to have signed the same; and if any such clerk, 
 officer, or deputy, shall utter a false certificate of any indictment and 
 conviction for a previous felony, or if any person other than such 
 clerk, officer, or deputy, shall sign any such certificate as such clerk, 
 officer, or deputy, or shall utter any such certificate with a false or 
 counterfeit signature thereto, every such offender shall be guilty of 
 felony ; and, being lawfully convicted thereof, shall be liable, at the 
 discretion of the court, to be transported beyond the seas for the terra 
 of seven years, or to be imprisoned for any term not exceeding two 
 
960 Offence, committed after previous Conviction. 
 
 years ; and, if a male, to be once, twice, or thrice publicly or pri- 
 vately whipped (if the court shall so think fit) in addition to such 
 imprisonment. 
 
 20 <& 21 Vict. c. 3, s. 2 — Substituting Penal Servitude for Transpor- 
 tation and regulating length of Sentences of Penal Servitude.'] — Ante, 
 p. 172. 
 
 27 <& 28 Vict. c. 47, s. 2 — Regulating length of Sentences of Penal 
 Servitude.l — Ante, p. 173, 
 
 6 <£ 7 W. i, c. Ill — Course of Proceedings at the Trial on a 
 Charge of Felony after a previous Conviction of Felony. '\ — After re- 
 citing that, by 1 (6 9 G. i, c. 28 (supra), provision is made for the 
 more exemplary punishment of offenders who shall commit any felony 
 not punishable with death after a previous conviction for felony: 
 and that since the passing of the said act the practice had been on the 
 trial of any person for any subsequent felony to charge the jury to 
 inquire at the same time concerning such previous conviction : and that 
 doubts might be reasonably entertained whether such practice was con- 
 sistent with u, fair and impartial inquiry as regarded the matter of 
 such subsequent felony , and it was expedient that such practice should 
 thenceforth he discontinued, enacts: — That from and after the passing 
 of this act it shall not be lawful on the trial of any person for any 
 such subsequent felony to charge the jury to inquire concerning 
 such previous conviction until after they shall have inquired con- 
 cerning such subsequent felony, and shall have found such person 
 guilty of the same ; and whenever in any indictment such previous 
 conviction shall be stated, the reading of such statement to the jury 
 as part of the indictment shall be deferred until after such finding as 
 aforesaid: provided nevertheless, that if upon the trial of any person 
 for any such subsequent felony as aforesaid, such person shall give 
 evidence of his or her good character, it shall be lawful for the pro- 
 secutor, in answer thereto, to give evidence of the indictment and 
 conviction of such person for the previous felony before such verdict 
 of guilty shall have been returned ; and the jury shall inquire con- 
 cerning such previous conviction for felony at the same time that 
 they inquire concerning the subsequent felony. 
 
 24 & lb Vict. c. 96, s. 7 — Punishment of Simple Larceny after a 
 previous Conviction of Felony.'] — Anie,p. 304. 
 
 Sect. 8 — Punishment of Simple Larceny, or any Offence by the 
 Larceny Act made punishable like Simple Larceny, after a previous 
 Conviction of any indictable Misdemeanor punishable vmder the Lar- 
 ceny Act.] — Ante, p. 304. 
 
 Sect. 9 —Punishment nf Simple Larceny, or any Offence by the Lar- 
 ceny Act made punishable like Simple Larceny, after two Summary 
 Convictions.] — Ante, p. 304. 
 
 Sect. 116 — Form of Indictment, and Course of Proceeding at Trial, 
 for an Offence punishable under the Larceny Act committed after a 
 previous Conviction for any Felony, Misdemeanor or Offence pumishable 
 upon Summaiy Conviction.] — Ante, p. 307. 
 
Offenct committed after previous Conviction. 961 
 
 24 & 25 Vict. c. 99, s. 12 — Uttering base Coin after a previous Con- 
 viction.J — Ante, p. 753. 
 
 24 (& 25 Vict. c. 99, s. 37 — jforTO of Indictment, and Course of Pro- 
 ceeding at Trial, for am Offence against the Coinage Act, after a pre- 
 vious Conviction for an Offence against that Act.'] — Ante, p. 741. 
 
 32 (& 33 Vict. c. 99 (TAe HaUtual Criminals Act, 1869), s. 8— 
 Persons twice convicted of certain Offences to he subject to the Super- 
 vision of the Police.'] — Where any person is convicted on indictment 
 of any offence specified in the first schedule hereto [see infra] in 
 England or Ireland, and in the second schedule hereto [see infra] in 
 Scotland, and he be proved to have been previously convicted of any 
 offence specified in the said schedule, either before or after the passing 
 of this act, then, in addition to any other punishment which may be 
 awarded to him, it shall be deemed to be part of the sentence passed 
 on him, unless otherwise declared by the court, that he is to be sub- 
 ject to the supervision of the police as hereinafter mentioned, for a 
 period of seven years, or such less period as the court shall direct, 
 commencing from the time at which he is convicted, and exclusive 
 of the time during which he is undergoing his punishment. 
 
 Where any person is subject, in pursuance of this act, to the su- 
 pervision of the police, he shall be guilty of an offence punishable 
 (on summary conviction before two or more justices or a stipendiary 
 magistrate) with imprisonment, with or without hard labour, for a 
 term not exceeding one year, under the following circumstances, or 
 any of them : 
 First. If, on his being charged by a constable or police oiBcer 
 with getting his livelihood by dishonest means, he fails to make 
 it appear to the justices or magistrate before whom he is brought 
 that he is not getting his livelihood by dishonest means : 
 Secondly. If he is found by any constable or police officer in any 
 place, whether public or private, under such circumstances as to 
 satisfy the justices or magistrate before whom he is brought that 
 he was about to commit or to aid in the commission of any crime 
 punishable on summary conviction or indictment, or was wait- 
 ing- for an opportunity to commit or aid in the commission of 
 any such crime : 
 Thirdly. If he is found by any person in or upon any dwelling- 
 house, or any building, yard, or premises, being parcel of or 
 attached to such dwelling-house, or in or upon any shop, ware- 
 house, counting-house, or other place of business, or in any 
 garden, orchard, pleasure ground, or nursery ground, without 
 being able to account to the satisfaction of the justices or magis- 
 trate before whom he is brought for his being found on such 
 premises. 
 Any person charged with being guilty of any offence punishable on 
 summary conviction under this section may be taken into custody 
 by any constable or police officer without warrant, or may, if charged 
 with being guilty of an offence committed under th? circumstances 
 thirdly hereinbefore mentioned, or any of them, be apprehended by 
 the owner or occupier of the property on which he is found, or by 
 the servants of the owner or occupier, or by any other person autho- 
 rized by the owner or occupier, and may be detained until he can be 
 delivered into the custody of a constable or police officer for the 
 
962 Offence committed after previous Conviction. 
 
 purpose of being brought before the justices or magistrate ; provided 
 that no person shall be so taken into custody on the ground that he 
 is suspected of getting his livelihood by dishonest means except 
 under a written authority from a chief officer of police. 
 
 When a person is convicted under this section of an offence which 
 subjects him to the supervision of the police, the record of his con- 
 viction shall contain a statement to the effect that he is subject to 
 the supervision of the police in pursuance of this act for a period 
 of seven years comrriencing from the date of his conviction, and 
 exclusive of the time during which he is undergoing his punishment, 
 or words to the like purport, but the omission of any such statement 
 shall not exempt any person from the operation of this section. 
 
 A convict who has been sentenced to penal servitude shall not during 
 the time when he is at large under a licence granted under the said 
 Penal Servitude Acts [1853, 1867 and 1864], or any of them, be deemed' 
 for the purposes of this section to be undergoing his punishment. 
 
 First Schedule.'] — Any felony not punishable with death also, or 
 the offence of uttering false or counterfeit coin or of possessing coun- 
 terfeit gold or silver coin, or the offence of obtaining goods or money 
 by false pretences ; or the offence of conspiracy to defraud, or misde- 
 meanor under 24 d; 25 Vict. c. 96, s. 68. 
 
 Second Sehedule.l—RoVoery, theft, assault with intent to rob, 
 stouthrief, falsehood!, fraud, and wilful imposition, obtaining goods or 
 money by false pretences, uttering false or counterfeit coin. 
 
 Indictment for a Subsequent Offence punishahle with, Penal Servitvde 
 after apreoious Conviction for Felony. 
 
 Central Criminal Court, to wit : — The jurors for our lady the Queen, 
 upon their oath present, that J. S., on the first day of June, in the 
 
 year of our Lord , one hoi'se of the goods and chattels of J. N., 
 
 feloniously, unlawfully and maliciously did kill [describing some felony 
 not punishable with death (7 cB 8 (?. 4, c. 28, s. 11, ante, p. 959), or 
 some offence punishable with penal servitvde (27 S 28 Vict. c. 47, s. 2, 
 ante, p. 173), as in the precedents, ante, passim] ; against the form of 
 the statute in such case made and provided, and against the peace of 
 our lady the Queen, her crown and dignity. And the jurors afore- 
 said, upon their oath aforesaid, do further present, that heretofore, 
 and before the commission of the felony hereinbefore charged, to wit, 
 at etc. [describing the court where the prisoner was tried and convicted], 
 
 on the day of , in the year of our Lord , the said J. S. 
 
 was convicted of felony, which said conviction is still in full force, 
 strength and effect, and not in the least reversed, annulled or made 
 void. Where the subsequent offence is not an offence punishable under 
 the Larceny Act (24 <& 25 Vict. c. 96), nor an offence against the 
 Coinage Act (24 & 25 Vict. c. 99) committed subsequently to a convic- 
 tion for any offence against that act, or amy former act relating to the 
 coin, it matters not whether the previous conviction or subsequent offence 
 be first charged in the indictment. R. v. M^Ewin, Bell, 20 ; S. C. as 
 R. V. Hilton, 28 L. J. (M. C.) 28. Where, however, the subsequent 
 offence is punishable under the Larceny Act, or is such a subsequent 
 offence against the Coinage Act as above mentioned, the subsequent 
 ^ence must be first charged in the indictment. See 24 1& 25 Vict. c. 96, 
 s. 1 1 6 (ante, p. 307), and 24 d 25 Vict. c. 99, s. 37 {amte, p. 741). It is 
 
Offence committed after previous Conviction. 963 
 
 sufficient to state that the prisoner was at a certain time and place con- 
 victed of felony, without otherwise describing the previous felony , 7 c6 8 
 6. 4, c. 28, s. 11 ; 24 (fc 25 Vict. c. 96, s. 116; nor is it necessary to 
 state the judgment, R. v. Spencer, \ C. & K. 159 {hit see 24 & 25 Vict. 
 c. 99, s. 37, which requires a more specific statement of a previous 
 coinage conviction in the case of a subsequent coinage offence). Any 
 number of previous convictions may be laid and proved. R. v. Clark, 
 Dears. 198 ; 22 L. J. {M. C.) 135. 
 
 Where the indictment is for a felony not punishable with death, and 
 not being simple larceny, committed after a previous conviction for 
 felony, the punishment is penal servitude for life or for not less than 
 seven years, or imprisonment, (with or without hard labour for the whole 
 or any part of the imprisonment, and vnth or unthout solitary confine- 
 ment, 1 S S G. i, c. 28, s. 9 (ante, p. 173), such confinement not ex- 
 ceeding one month at any one time, nor three months in any one year, 
 1 W. i {& 1 Vict. c. 90, s. 5 (ante, p. 174),) not exceeding four years; 
 and, if a male, to be once, twice, or thrice publicly or privately whipped, 
 in addition to the imprisonment, if the court shall think fit. 7 <£ 8 ff. 4, 
 c. 28, s. 11 (ante, p. 959) ; 20 <^ 21 Vict. c. 3 (ante, p. 172) ; 27 tfc 28 
 Vict. c. 47, s. 2 (ante, p. 173). 
 
 Where the indictment is for a crime or offence punishable with penal 
 servitude, after a previous conviction of felony, the least sentence of penal 
 servitude that can be awarded is se/ven years. 27 <6 28 Vict. c. 47, s. 2 
 (anie,p. 173). 
 
 Where the indictment is for simple larceny committed after a previous 
 conviction for felony, the punishment under 24 & 25 Vict. c. 96, s. 7, is 
 penal servitude for not exceeding ten years and not less than seven 
 (27 t& 28 Vict. c. 47, s. 2, ante, p. 173) years, or imprisonment for not 
 exceeding two years, with or without hard labour, and with or unthout 
 solitary confinement (such confinement not exceeding one month at any 
 one time, nor three months in any one year, 24 d 25 Vict. c. 96, s. 119, 
 ante, p. 308), and, if a male under sixteen, with or without whipping, 
 as limited by 24 & 25 Vict. c. 96, s. 119.— 24 & 25 Vict. c. 96, =. 7 
 (ante, p. 304). 
 
 Where the indictment is for simple larceny, or any offence by the Lar- 
 ceny Act made punishable like simple larceny, committed after a previous 
 conviction of any indictable misdemeanor punishable under the Larceny 
 Act, the punishment is penal servitude for not exceeding seven years and 
 not less than five (27 c6 28 Vict. c. 47, s. 2, ante, p. 173) years, or im- 
 prisonment for not exceeding two years, with or without hard labour, 
 and with or without solitary confinement (such confinement not exceed- 
 ing one month at any one time, nor three months in any one year, 24 tfe 
 25 Vict. c. 96, s. 119 (ante, p. 308), and, if a male under sixteen-, with or 
 without whipping, as limited by 24 & 25 Vict. c. 96, s. 119. — 24 & 25 
 Vict. c. 96, s. 8 (ante, p. 304). And where the indictment is for simple 
 larceny, or any offence by the Larceny Act made punishable like simple 
 larceny, committed after two summary convictions of any offence punish- 
 able upon summary conviction umder 7 d) 8 G. i, cc. 29, 30 ; Q G. 4, 
 cc. 55, 56; 10 <* 11 Vict. c. 82; 11 <6 12 Vict. c. 59; 14 & 15 Vict. 
 c. 92, ss. 3—6; 24 <& 25 Vict. c. 96 ; or 24 c6 25 Vict. c. 97, the punish- 
 ment is penal servitude for not exceeding seven years and not less than 
 five (27 <& 28 Vict. c. 47, s. 2, ante, p. 173) years, or imprisonment for 
 not exceeding two years, with or viithout hard labour, and with or with- 
 out solitary confinement (such confinement not exceeding one month at 
 any one time, nor three months in any one year, 24 & 25 Vict. c. 96, 
 s. 119 (anie,p. 308), and, if a male under sixteen, with or without whip- 
 
 T T 2 
 
964 Offence committed after prmious Conviction. 
 
 ping, as limited by 24 <& 25 Vici. c. 96, s. 119.— 24 (6 25 Vict. c. 96, 
 «. 9 (ante, p. 304). 
 
 As to the form of indictment and pmdshment in the case of subse- 
 quent Coinage Offences, see ante, pp. 755 — 757. 
 
 The Habitual Criminals Act, 1869 (32 & 33 Vict. c. 99), s. 8, ante, 
 p. 961, has introduced as an addition to the sentence which may be 
 passed in certain cases of subsequent conviction, the sentence of sub- 
 jection to the supervision of the police. The circumstances under which 
 that sentence may be passed, its consequences ami its duration, a/re fully 
 set out in the section above referred to. 
 
 Evidence. 
 
 The allegations, in the order in which they oecur in the indict- 
 ment, are — 1. The subsequent felony, or crime, oroflfence punishable 
 ■with penal servitude, wliich is proved as in other cases. See the 
 different titles. 2. The previous conviction, which is proved by a 
 certiiicate (7 (& 8 G. 4, c. 28, s. 11 ; 24 eg 25 Vict. c. 96, s. 116; 24 & 
 25 Vict. c. 99, s. 37, supra), with evidence of the identity of the de- 
 fendant. And in order to prove the identity, it is not essential to 
 call a witness who was present at the trial to which the certificate 
 refers; it is sufficient to prove that the defendant is the person who 
 underwent the sentence mentioned in the certificate. B. v. Crofts, 9 
 C. d P. 219 : a. V. Leng, I F.& P.ll; S. C. as R. v. Levy, 8 Cox, 
 73. The certificate must state that judgment was given for the 
 previous felony; it is not sufficient for it to state a conviction. R. v. 
 Ackroyd, 1 C. & E. 158: R. v. Stonnell, 1 Cox, 142. 
 
 Considerable difficulty for some time existed as to the course to be 
 pursued under the stat. 7 c6 8 6r. 4, c. 28, s. 11. A prejudice was 
 created in the minds of the jurors by a knowledge of the previous 
 conviction, and yet in strictness that circumstance could not be with- 
 held from their knowledge. To remedy this, the stat. 6 d 7 W.i, 
 0. Ill, was passed; under which, in oases falling within the 7 <6 8 
 G. 4, c. 28, s. 11, the prisoner must be arraigned on the whole 
 indictment. [See, however, R. v. M'Ewin, Bell, 20; S. C, as R. v. 
 Hilton, 28 L. J. (M. C.) 28, from which it would seem, that the 
 prisoner may be first arraigned and tried for the subsequent felony, 
 and then arraigned and tried on the previous conviction, where his 
 counsel has requested that that course should be taken.] But the 
 jury must be charged, and the evidence must proceed as if the in- 
 dictment did not contain the averment of a previous conviction; and 
 this allegation must not be opened to the jury, or their verdict taken 
 upon it, until after they have found the prisoner guilty of the subse- 
 quent felony, and then the prosecutor must prove the previous con- 
 viction and identity of the defendant, and upon this likewise the jury 
 must deliver their verdict. R. v. Key, 2 Den. 347; 21 L. J. {M. C.) 
 35 : R. V. Shuttleworth, 2 Den. 351 ; 21 L. J. (M. C.) 36. If, however, 
 the defendant call witnesses to character (or if, by the cross- 
 examination of the witnesses for the prosecution evidence to cha- 
 racter be elicited, R. v. Gadbury, 8 C. <& F. 676: R. v. Shrimpton, 2 
 Den. 319 ; 21 L. J. (M. C) 37), the previous conviction may he 
 proved in reply, and the compound question will, in that case, be 
 left to the jury in the first instance. & &1 W. ^, c. Ill, anie^p. 960. 
 
 It is obvious that the 6 c6 7 W. 4, c. Ill, does not effectually se- 
 cure the object for which it was passed; since the jurors, if they are 
 present at the arraignment of the prisoner, may, and probably will, 
 
Off met committed after previous Conviction. 965 
 
 obtain thereby a knowledge of his previons conviction, of which it 
 will be difficult for them to divest their minds, when they have to 
 decide on his guilt or innocence as to the subsequent offence charged 
 against him by the indictment. This consideration, no doubt, led to 
 the enactments contained in 24 c6 25 Vict. c. 96, s. 116 (ante, p. 307), 
 which regulates the form of indictment and the course of proceed- 
 ings, " in any indictment for any offence punishable under that act, 
 and committed after a previous conviction or convictions for any 
 felony, misdemeanor, or offence or offences, punishable upon summary 
 conviction;" and 24 <£ 25 Vict. c. 99, s. 37 (ante, p. 741 ), which regulates 
 the form of indictment and the course of proceedings, "where any 
 person shall have been convicted of any offence against that act, or 
 any former act relating to the coin, and shall afterwards be indicted 
 for any offence against that act committed subsequent to such con- 
 viction." To cases falling within these sections, therefore, the course 
 prescribed in the 7 (6 8 G. 4, c. 28, j*. 11, and 6 c6 7 W. 4, c. Ill, is 
 no longer applicable, and in such cases the indictment must first 
 chai'ge the subsequent offence and afterwards the previous convic- 
 tion, and the prisoner, instead of being arraigned at once on the 
 whole indictment, as is the practice in cases falling under the 7 <§ 8 
 G. 4, c. 28, «. 11, and G (& 7 W. 4=, c. Ill, is, in the first instance, ar- 
 raigned upon so much only of the indictment as charges the subse- 
 quent offence, and it is not until he has been convicted of the subse- 
 quent offence, either by his plea of guilty or by verdict, that the 
 fact of the indictment containing a charge of a previous conviction 
 is divulged, unless, indeed, during the trial for the subsequent offence, 
 the prisoner should give evidence of his good character (or should 
 elicit such evidence by cross-examination of the witnesses for the 
 prosecution, B. v. Gadbzvry, R. v. Shrimpton, ante, p. 964), in which 
 case the previous conviction may be proved in reply, and the com- 
 pound question will, in that case, be left to the jury in the first in- 
 stance. 24 S 25 Vict. c. 96, s. 116; c. 99, s. 37. Two learned 
 writers upon criminal law, the late Mr. Welsby (see the Ihth ed. of 
 this work, pp. 831, 832), and Mr. Davis (see Greaves' Criminal Law 
 Acts (2nd ed.) p. 203, were of opinion that the 24 & 25 Vict. c. 96, 
 s. 116, as to proceedings upon an indictment, applied to the proceed- 
 ings on the trial of all indictments containing a charge of a previous 
 conviction, on the ground that the words used in that section are 
 " the proceedings upon any indictment for committing any offence 
 after a previous conviction or convictions shall be as follows," etc. 
 Mr. Greaves, however, is of a contrary opinion, and maintains that 
 the 7 ffe 8 G. 4, c. 28, s. 11, and 6 (fc 7 W. 4, c. Ill, still govern the 
 proceedings in all cases of felony, committed after a previous con- 
 viction for felony, except larceny and coinage offences. See Greaves^ 
 Criminal Law Acts, ubi supra; 2 Russ. C. db M. by Greaves, 349 (ith 
 ed.). This seems to be the better opinion. 
 
 Although the 27 & 28 Vict. c. 47, s. 2 (anU, p. 173), enacts, that 
 where any person shall on indictment be convicted of any crime or 
 offence punishable with penal servitude after having been previously 
 convicted of felony, the least sentence of penal servitude that can be 
 awarded in such case shall be a period of seven years, there seems 
 to be some doubt how far this provision is operative where the sub- 
 sequent offence is a misdemeanor punishable with penal servitude, 
 and no enactment exists like that in the Larceny Act or in the Coin- 
 age Act authorizing the insertion of a charge of the previous convic- 
 tion in the indictment. On the one hand, it would seem that the 
 
966 Offence committed after jpy-evious Conviction. 
 
 court cannot take notice of any previous conviction not charged in 
 the indictment, and on the other hand, it was said by the learned 
 judge on the statement of the case in if. v. Summers, infra, that it is 
 not the practice to insert a previous conviction of felony in an indict- 
 ment for a misdemeanor, without some authority by statute, as such 
 statement would be error on the record. In B. v. Summers, L. J?., 
 1 C. C. iJ. 182; 38 L. J. {M. C.) 62, the defendant was convicted 
 upon an indictment which charged him with inflicting grievous 
 bodily harm upon a policeman, which is a misdenieanor punishable 
 with penal servitude. The indictment did not charge a previous 
 conviction for felony, but after the verdict parol evidence was given 
 that the defendant had been previously convicted of felony, no certiT 
 fieate or record of this conviction being however produced. He was 
 thereupon sentenced to penal servitude for five years, and the opinion 
 of the court of Criminal Appeal was asked, (1), Whether that sen- 
 tence, under the circumstances, was or was not correct; and, (2), 
 Whether the 27 <& 28 Vict. c. 47, s. 2, authorizes the passing of a 
 sentence of seven years' penal servitude whether a previous convic- 
 tion of felony is alleged in the indictment or not. The court of 
 Criminal Appeal merely declared that the sentence was right, which 
 was certainly the case, because the previous conviction had not been 
 properly proved by the production of the record or a certificate. 
 R. V. Bourdon, i C. & K. 366. They, however, gave no opinion 
 upon the second question submitted to them. It would seeni, how- 
 ever, that the court could not take any notice of the previous con- 
 viction unless it were laid in the indictment, as that would be to 
 allow proof of matter not alleged. At the same time, since the 27 & 
 28 Vict. c. 47, s. 2, provides a minimum sentence of penal servitude 
 in oases where a person is convicted of any crime punishable with 
 penal servitude after having been previously convicted of felony, and 
 since the previous conviction cannot be proved unless it be alleged 
 in the indictment, that statute would seem, by implication, to allow 
 of its being so alleged, and to authorize the insertion of a previous 
 conviction of felony in an indictment for misdemeanor punishable 
 with penal servitude. The court of Criminal Appeal in Ireland has, 
 however, held that an indictment was bad which charged the de- 
 fendant in the first count with obtaining money by false pretences, 
 and in the second count with a previous conviction of felony, 
 although their attention appears to have been called to 24 & 25 
 Vict. c. 96, s. 116, and 27 & 28 Vict. c. 47, s. 2. R. v. Garland, 11 
 Coa;, 224. "We are of opinion," said Whiteside, C. J., "that the 
 statute does not intend to allow a previous conviction for felony to 
 be charged in an indictment for misdemeanor." [The word in italics 
 in the report i& felony, but this is clearly a misprint or a slip of the 
 reporter's pen.] 
 
INDEX. 
 
 ABANDONING CHILD under the age of two years, statute, 693; in- 
 dictment, 693; punishment, 693; evidence, 693. 
 
 Abatement, plea in, 125. In what cases, 125; none for want of an ad- 
 dition, or for a wrong one, 38, 125 ; for want of a christian or surname, 
 or for a wrong one, 38, 125 ; now useless, 125. Proceedings upon, 125. 
 Amendment of indictment upon, 125. Judgment, 126. 
 
 Abduction, 698—703 ; wife competent to prove, 700; of a woman against 
 her will on account of her fortune, statute, 698; indictment, 699; 
 punishment, 699 ; evidence, 699. Of an heiress, etc., under age, 
 against the will of her father, etc., 698 ; forcible, of any woman, with 
 intent to marry, etc., 699. Of a girl under sixteen years of age, statute, 
 700 i indictment, 700; punishment, 701 ; evidence, 701. Of children 
 under fourteen years, 702; statute, 702; indictment, 703; punish- 
 ment, 703 ; evidence, 703. 
 
 Abettors. See " Aiders." 
 
 Abominable crime, commission of, statute, 716; indictment, 716 ; punish- 
 ment, 716; evidence, 716; attempt to commit, statute, 717; indict- 
 ment, 718 ; punishment, 718 ; evidence, 718 ; sending letters accusing 
 or threatening to accuse of, statute, 411 ; indictment, 426 ; punishment, 
 426; evidence, 427 ; accusing, or threatening to accuse of, with intent 
 to extort property, statute, 411; indictment, 425 ; punishment, 425 ; 
 evidence, 425 ; inducing persons to execute deeds, etc., by accusing or 
 threatening to accuse of, 412. See ^^ Sodomy** 
 
 Abortion, attempts to procure, statute, 711. Indictment for administering 
 poison to procure miscarriage, 711 ; punishment, 711 ; evidence, 712. 
 Indictment for using instruments to procure miscarriage, 712; punish- 
 ment, 712; evidence, 713. Indictment for procuring poison for the 
 purpose of its being used to cause miscarriage, 713 ; punishment, 713, 
 
 Abroad, murder or manslaughter committed, 29,33,617. Conspiracy or 
 solicitation to murder any one abroad, 647. 
 
 Absence of husband or wife for seven years, when a defence in bigamy, 882, 
 888. 
 
 Acceptance of a bill of exchange, forging or uttering, 577. 
 
 Accessory before the fact may be dealt with in all respects as a principal, 13, 
 
 950, 951 ; or may be indicted as an accessory or as a substantive felon, 
 12, 13, 951. Accessory after the fact may be indicted as such or as a 
 substantive felon, 15, 955 ; punishment of, 955. Accessories may be 
 prosecuted after the principal has been convicted, but not attainted, 13, 
 
 951. Separate accessories may be tried together in absence of the prin- 
 cipal, 14. Where a felony is wholly committed in England or Ireland, 
 any accessory to it may be tried in any place where he became accessory, 
 or where the principal may be tried, 36, 951 ; in every other case he 
 may he tried where he is apprehended or in custody, 36, 951. Acces- 
 sories within the jurisdiction of the Admiralty, 31. Punishment of 
 accessories in murder and other offences against the person, 946 ; in 
 offences against the Larceny Act, 945 ; in offences against the Malicious 
 Injuries Act, 945 ; in offences against the Coinage Act, 946 ; in offences 
 against the Forgery Act, 945 ; in piracy, 946 ; in post-office offences, 
 946. Indictment against accessory before the fact, together with prin- 
 cipal, 951 ; against accessory before the fact as for a substantive felony, 
 
968 Index. 
 
 954 J against accessory after the fact together with principal, 956 ; 
 against accessory after the fact the principal being convicted, 958. No 
 accessories in treason, 952, 956; nor in misdemeanors, 12, 15; nor 
 according to old authorities can there be accessories before the fact in 
 manslaughter, 12 ; modern doctrine on this subject, 12. See "Principal 
 and Accessory." 
 
 Accident, homicide by. See " Homicide." 
 
 Accomplice, a competent witness for the crown, 272 ; his evidence not 
 acted upon in practice unless confirmed, 272 ; kind of confirmation re- 
 quired, 272. Confirmation by other accomplices not sufhcient, 273 ; 
 nor by his wife, 273. 
 
 Accountable receipt, forgery of, statute, 580 ; indictment, 587 ; punish- 
 ment, 587 ; evidence, 587. 
 
 Accountant-general, forging the name of the, 605. 
 
 Accusing or threatening to accuse of crime with intent to extort money, 
 etc., statute, 411; indictment, 425; punishment, 425; evidence, 425. 
 Sending letter accusing or threatening to accuse, with intent, etc., 
 statute, 411; indictment, 426 ; punishment, 426; evidence, 427. In- 
 ducing execution, etc., of valuable securities; by accusing or threatening 
 to accuse of crime, 412. See " Threats," " Threatening Letters." 
 
 Acknowledging, without authority or excuse in name of another, recogni- 
 zance, bail, cognovit, judgment, deed, or other instrument, statute, 614; 
 indictment, 615 ; punishment, 615; evidence, 615. 
 
 Acquittal of one defendant, to enable him to give evidence for or against a 
 co-defendant, in what cases, 274. 
 
 Acquittal, how proved, 133, 241, 311. 
 
 Acquittance for money or goods, forgery or uttering of, statute, 580 ; indict- 
 ment, 587 ; punishment, 587 ; evidence, 587. 
 
 Acts of parliament, public, do not require proof, 239 ; since 4th February, 
 1851, all acts are to be taken as public acts, unless the contrary is ex- 
 pressly provided, 239; private statutes must be proved, 239; how 
 proved, 239. See " Statutes." 
 
 Acts of state, how proved, 261. Acts of state of a foreign government, how 
 proved, 258. 
 
 Actual bodily harm, assault occasioning, statute, 657 ; indictment, 657 ; 
 punishment, 658 ; evidence. 658. 
 
 Addition of defendant, in an indictment or information, no longer necessary, 
 38. 
 
 Addition of the party injured not necessary, 39 ; must it be proved if stated? 
 39. 
 
 Adhering to the Queen's enemies, what, 728 ; who an enemy, 729 ; overt 
 acts, 728 ; indictment, 727 ; evidence, 729. 
 
 Adjoining county, trial in, of offences committed in a county of a city or 
 town. See "Kenwe." 
 
 Adjournment of trial, 162. See "Practice." 
 
 Adjudication of bankruptcy, how proved, 247, 875 ; date of, how proved, 
 247 ; annulling of, how proved, 248. 
 
 Administering poison, etc., to procure miscarriage, 711; see "Abortion;" 
 with intent to murder, 648 ; see "Murder;" so as to endanger life, or 
 inflict grievous bodily harm, 670 ; with intent to injure or annoy, 
 671. See"Poison." Attempting to administer poison with intent to 
 murder, 651 ; administering chloroform, etc., with intent to commit 
 offences, Q6^. 
 
 Administering voluntary oaths,. 829. 
 
 Administration of justice, libels reflecting on, 838. 
 
 Administration, how proved, 246. 
 
 Administrator, — if goods of a deceased person be stolen, property laid in 
 executor or administrator, 40 ; if no executor or administrator, in the 
 judge of the Court of Probate, 40, 41. 
 
 Admiralty, board of, proclamation, order or regulation issued by, how 
 proved, 262, 263 ; forgery of instrument of proof of, 602. 
 
Index. 969 
 
 Admiralty cause in county court, false evidence before registrar in, 828. 
 
 Admiralty, jurisdiction of, 31, 32. 
 
 Admiralty, trial of indictable offences under Larceny Act, committed witbin 
 tbe jurisdiction of the, 306; under the Malicious Injuries Act, 506; 
 under the Forgery Act, 558 ; under the Coinage Act, 711 ; under the 
 Offences against the Person Act, 618. See "High Seas." 
 
 Admiralty, accessories within the jurisdiction of the, of England or Ireland, 
 venue for trial, 33. 
 
 Admiralty court, libel, answer, depositions, and sentence of, how proved, 
 246 1 in what cases evidence, 246. 
 
 Admissions. See "Confessions." 
 
 Adulterer, killing of, by husband, 632 j larceny by, 341, 
 
 Advertising reward for return of stolen property, 836 ; limitation of actions 
 to recover forfeitures in respect of such advertisements, 83G ; no such 
 actions to be brought unless with assent of attorney or solicitor-general, 
 836. 
 
 Affidavit to verify a plea to the jurisdiction, 125; or a plea of misnomer, 125. 
 
 Affidavit to giound an application for an information, 112 — 114. 
 
 Affidavit, how proved, and in what cases evidence, 244, 245. 
 
 Affirmation of a Quaker, Moravian, Separatist, etc., or of a person unwill- 
 ing from alleged conscientious motives to be sworn, admissible in 
 critninal cases, 286 ; form of, 287. If false, it is punishable as perjury, 
 286. 
 
 Affray, indictment for, 847 ; punishment, 847 ; evidence, 847. 
 
 " Against the form of the statute," these words not necessary in indict- 
 ments, 67. 
 
 Age of discretion. See " Infants." 
 
 Agent, innocent, crime committed through medium of, 7 ; false pretences 
 made through, 478. 
 
 Agent intrusted with money, etc., with a written direction, embezzling the 
 same, statute, 456 ; indictment, 459; punishment, 459 ; evidence, 460. 
 Agent intrusted with chattel, etc., or power of attorney to transfer stock, 
 etc., without authority to sell, etc., selling, etc., statute, 456 ; indict- 
 ment, 460; punishment. 461; evidence, 461. Agent intrusted with 
 property for safe custody, selling, etc., same, 457. Agent or factor, 
 pledging goods of his principal intrusted to him for sale, statute, 457 ; 
 indictment, 461 ; punishment, 461 ; evidence, 461. 
 
 Agent of seller or mortgagor concealing instruments of title or incum- 
 brances from purchaser or mortgagee, or falsifying pedigree, 358, 359, 
 
 Aiders and abettors, who are, 8 — 11 ; must be present, 8 ; must participate 
 in the act, 9. When to be tried, 10 ; in misdemeanors, punishable as 
 principals, 11. Proceedings against, 945. Indictment against, 947 j 
 punishment, 947; evidence, 948. 
 
 Aiders and abettors in forcible entry, 849 ; in high treason, 727 ; in misde- 
 meanors, 11. 
 
 Aiding prisoners to escape, 799—803 ; statutes, 799. Indictment for con- 
 veying files, etc., to a prisoner, to enable him to escape, 801 ; punish- 
 ment, 801 ; evidence, 802. 
 
 Airway of mine, obstructing, 530. See " Mine." 
 
 Alia enormia, what may be given in evidence under, 660. 
 
 Alias diciuSf in what cases necessary and how used, 38. 
 
 Aliens, in what cases qualified and liable to serve on juries, 146. See 
 "Foreigners," "Jury de Medietate." 
 
 Allegations, what may be rejected, 52, 202, 212 ; unnecessary, but relevant, 
 must be proved, 213 ; omission of allegations unnecessary to be proved, 
 immaterial, 126. 
 
 Allegiance, endeavouring to seduce a soldier or sailor from, statutes, 783 ; 
 indictment, 784; venue, 783 ; punishment, 784 ; evidence, 784. 
 
 Almanack, date in, how proved, and in what cases evidence, 263. 
 
 Alpaca, goods in process of manufacture, stealing, 406 ; destroying, etc., 
 526. 
 
 T T 5 
 
970 Index. 
 
 Altering a bill, forgery by, 577, 579. 
 
 Amendment of an indictment, or information after a plea of misnomer, etc., 
 125 i after a demurrer, 127, 129. 
 
 Amendment of variance between pleading and proof, when allowable, 205 
 —208 ; under 9 Geo. 4, c. 15 . . 206 ; in misdemeanors, variance between 
 record and written evidence amendable, 206; extended to felonies, 
 206; to quarter sessions, 206 ; under 14 & 15 Vict. c. 100 (Lord Camp- 
 bell's Act), 206; must be made before verdict, 207. No power of 
 amending amendment, 207 ; may be made after prisoner's counsel has 
 addressed jury, semble, 207 ; decisions on Lord Campbell's Act, 207. 
 See '* Variance.** 
 
 Ammunition. See "Stores." 
 
 Anatomy Act, 929. 
 
 Anchors, frauds in stamping and sale of, 486. 
 
 Angling, taking fish by, 320, 389, 390. 
 
 Animals, in what cases larceny may be committed of them, 319; how 
 described in an indictment, 58, 315 ; cattle stealing, statute, 349 ; 
 killing cattle with intent to steal carcase, etc., statute, 349 ; indict- 
 ment, 350; larceny of domestic animal, 319; maliciously killing or 
 maiming animals not being cattle, 546 ; maliciously killing or maiming 
 cattle, statute, 546 ; indictment, 546 ; punishment, 547 ; evidence, 547. 
 See "Cattle," "Dog." 
 
 Animus furandi, necessary to constitute larceny at common law, 325 ; but 
 not necessary that it should exist at the time of the taking, where the 
 possession obtained by trespass, 340; or where the goods are fraudu- 
 lently converted by a bailee, 340. 
 
 Annulling of adjudication of bankruptcy, how proved, 248. 
 
 Answer in the Court of Admiralty, how proved, 246 ; in the ecclesiastical 
 courts, how proved, 245 ; in courts of equity, how proved, 244. 
 
 Apothecaries' Company, certificate of, bow proved, 260. 
 
 Appointment of trustee in bankruptcy, how proved, 248 ; of trustee in case 
 of liquidation by arrangement, how proved, 248. 
 
 Apprehension of offenders: — power of oonstabje to apprehend without war- 
 rant during the night person loitering and suspected of felony against 
 the Larceny Act, 488 ; against the Malicious Injuries Act, 505; against 
 Offences against the Person Act, 618 ; any person empowered to appre- 
 hend any person found committing any indictable offence in the flight, 
 488 ; power to certain persons to apprehend without warrant any person 
 found committing an offence against the Malicious Injuries Act, 505 ; 
 power to any person to apprehend without warrant person found Com- 
 mitting offence against Coinage Act, 741 ; against Larceny Act, 305; 
 assault to prevent apprehension or detainer, 683. 
 
 Apprentices, maliciously causing bodily harm to, whereby life or health is 
 endangered, 691 ; neglecting to provide with necessary food, etc., 691 ; 
 indictment, 692 ; punishment, 692 ; evidence, 692. 
 
 Aqueducts, pulling down or otherwise destroying or injuring, 540. 
 
 Arms loaded, what are, within the 24 & 25 Vict, c, 100. .651, 653, 654. 
 
 Arraignment, 140. See "Practice," sect. 11. 
 
 Array, challenge of, 150, 153 — 155. 
 
 Arrest of judgment, 170 ; what shall not be sufScient to stay or reverse a 
 judgment after verdict, 126. 
 
 Arrest, under civil process, 695 ; under a warrant, 695 ; without warrant, 
 696 ; under other authority, 697. 
 
 Arrest of offenders under Larceny Act, 305, 306 ; under Malicious Injuries 
 Act, 605 ; under Coinage Act, 741 j under Offences against the Person 
 Act, 618. See " Apprehension." 
 
 Arrest, after an escape, 697 ; for a contempt, 697. 
 
 Arrest, privilege of witnesses from, 290. 
 
 Arresting, obstructing, etc. clergymen or other ministers in discharge of their 
 duties, statute, 677 ; indictment, 678 ; punishment, 678; evidence, 678. 
 
 Arson, 503—520. Setting fire to church, chapel, meeting-house, or other 
 
Index. 971 
 
 place of divine worship, statute, 503; indictment, 512; punishment, 
 512 ; evidence, 512. Setting fire to dwelling-houses, any person being 
 therein, statute, 503; indictment, 512; punishment, 513; evidence, 
 513. Setting fire to house, stable, coach-house, outhouse, warehouse, 
 office, shop, mill, malt-house, barn, storehouse, granary, hovel, shed, 
 fold, farm building, building or erection used in farming land, or 
 carrying on any trade or manufacture, statute, 503 ; indictment, 507 ; 
 punishment, 508 ; evidence, 508. Setting fire to station or other 
 building belonging to any railway, port, dock, harbour, canal or 
 navigation, statute, 504. Setting fire to building belonging to the 
 Queen, or to any county, etc., or place, or to any university, etc., ina 
 of court, or dedicated to public use, or maintained by public subscrip- 
 tion, statute, 504. Setting fire to any other building, statute, .504. 
 Setting fire to goods in any building, statute, 504. Setting fire to crop> 
 of hay, grass, corn, grain, pulse, etc., statute, 518; indictment, 5.20'; 
 punishment, 520; evidence, 520. Setting fire to wood, coppice or 
 plantation of trees, statute, 518. Setting fire to heath, gorse, iane or 
 fern, statute, 5 1 8. Setting fire to stack of corn, grain, pulse, tares, hay, 
 straw, haulm, stubble, etc., etc., statute, 518 ; indictment, 519; punish- 
 ment, 519; evidence, 519. Setting fire to mine of coal or anthracite, sta- 
 tute, 513; indictment, 514; punishment, 514; evidence, 514. Setting 
 fire to ship or vessel, statute, 514; indictment, 515; punishment, 515; 
 evidence, 515. Setting fire to ship or vessel with intent to prejudice 
 owner or underwriter, statute, 514; indictment, 516; punishment, 516. 
 Setting fire to ship of war, indictment, 517. Attempting to set fire 
 to buildings, statute, 517 ; indictment, 517 ; punishment, 518 ; evi- 
 dence, 518. Attempting to set fire to crops, etc., or stacks, etc., statute, 
 518. Attempting to set fire to mines, statute, 513. Attempting to set 
 fire to ships, statute, 514. 
 
 Art, works of, etc., in museums, etc., destroying or damaging, 5>53. 
 
 Articles of war, do not require proof, 239. 
 
 Asportation in larceny, what, 345. 
 
 Assault, to the peril of life, no excuse for crime coraiffitted under its in- 
 fiuence, 22. 
 
 Assault, summary conviction of, 134 ; certificate of dismissal, etc., 134, 135 ; 
 such certificate or conviction a bar to other proceedings for the same 
 cause, 135; summary provisions not to apply to attempts to commit 
 felony, etc., 135. 
 
 Assault, 657 — 694; what, 658; on trial for robbery, jury may convict of 
 assault with intent to rob, 409 ; assaults occasioning actual bodily 
 harm, statute, 657 ; indictment for an assault occasioning bodily barm, 
 657; punishment, 658; evidence for the prosecution, 658; evidence 
 for the defendant, 660 ; common assault, 657 et seq. ; attempts to drown, 
 shoot, etc., 651 ; statute, 651 ; indictment for an attempt to drown with 
 intent to murder, 652; punishment, 652; evidence, 652; indictment for 
 shooting with intent to murder, 652; punishment, 652; evidence, 652; 
 indictment for attempting to shoot with intent, etc., 653 ; punish- 
 ment, 653 ; evidence, 653 ; wounding with intent to murder, 648 ; 
 statute, 648 ; indictment, 650 ; punishment, 650 ; evidence, 650 ; 
 wounding with intent to maim, 663 ; statute, 663 ; indictment, 663 ; 
 punishment, 664 ; evidence, 664 ; indictment for shooting with in- 
 tent to maim, 667 ; punishment, 667 ; evidence, 667 ; indictment for 
 attempting to shoot with intent to maim, 667 ; punishment, 667 ; evi- 
 dence, 667 ; indictment for burning by gunpowder, 673 ; punishment, 
 673 ; evidence, 673 ; indictment for sending explosive substances, etc., 
 with intent, etc., 673; punishment, 673; evidence, 673; indictment 
 for throwing corrosive fluid with intent, etc., 674; punishment, 674; 
 evidence, 674 ; administering chloroform, etc., in order to commit any 
 indictable offence, 669; indictment, 670; punishment, 670 ; evidence, 
 670; assaults on clergymen and other ministers, 677; assaults on 
 officers, etc., saving wreck, 678; statute, 678; indictment for assault- 
 
972 Index. 
 
 ing a magistrate, etc., on accoun^of the exercise of his duty in preserv- 
 ing wreck, 679; punishment, 679; evidence, 679; impeding persons 
 endeavouring to escape from wrecks, 679 ; statute, 679 ; indictment, 
 680; punishment, 680 ; evidence, 680 ; assaults with intent to commit 
 felony, 683 ; statute, 683 ; indictment, 684! ; punishment, 684 ; evi- 
 dence, 684 ; assaults on peace officers or their assistants, statute, 
 683; indictment, 684; punishment, 684; evidence, 684; assault 
 to prevent apprehension or detainer, statute, 683 ; indictment, 685 ; 
 punishment, 68S; evidence, 685 ; assaults in pursuance of a conspiracy 
 to raise wages, statute, 685; indictment, 686; punishment, 686; evi- 
 dence, 686; forcing seamen on shore, 680; statute, 680; indictment, 
 683 ; punishment, 683 ; evidence, 683 ; assaulting gamekeepers, 686 ; 
 statute, 686 ; indictment, 687 ; punishment, 688 ; evidence, 688 ; 
 shooting at officers of the customs, 689 ; statute, 689 ; indictment, 690 ; 
 punishment, 690 ; evidence, 690; indictment for maiming or wounding 
 officers of the customs, 690 ; punishment, 690 ; evidence, 691 ; assault- 
 ing and obstructing officers of customs, 691 ; statute, 691 ; indictment 
 691 ; punishment, 691 ; evidence, 691 ; assaulting, etc., apprentices or 
 servants, 691; statute, 691 ; indictment for not providing an appren- 
 tice with necessary food, 692 ; punishment, 692 ; evidence, 692 ; ex- 
 posing children where life is endangered, statute, 693 ; indictment, 
 693 ; punishment, 693 ; evidence, 693 ; false imprisonment, 694 ; in- 
 dictment for assault and false imprisonment, 694; punishment, 694; 
 evidence for the prosecution, 694 ; evidence for the defendant, 695 ; 
 indecent assault upon female, statute, 710; indictment, 710; punish- 
 ment, 710; evidence, 710; assault with intent to commit sodomy, 717; 
 statute, 717; indictment, 718; punishment, 718; evidence, 718; in- 
 decent assault upon male person, statute, 717; assault with intent to 
 rob, 409, 410, 420. See " Robbery." Costs may be ordered to be paid 
 by defendant on conviction on indictment of any assault, 620; such 
 costs may be levied by distress, 620. 
 
 Asses, within the meaning of the statute against killing cattle, 547. 
 
 Assignment of perjury, 819. ' 
 
 Assignment of errors, 192. See "Practice." 
 
 Assisters. See "Aiders." 
 
 Asylum, public, how described in an indictment, 44. Goods and chattels 
 provided for and at the expense of counties, etc., to be used in or with, 
 larceny of, how described in an indictment, 44. 
 
 Atheists, former incompetency of, as witnesses, 271, 287 ; appear to be now 
 competent, 271, 287. 
 
 Attachment against a witness for non-attendance, 291, 
 
 Attainder for treason or felony, abolished, 177. 
 
 Attainder, no plea, unless for the same crime, 137. 
 
 Attainder of principal not necessary for purpose of proceeding against 
 accessories, 13, 951. 
 
 Attempt to commit felony or misdemeanor may be found on indictment for 
 actual commission of the offence, 164 ; every attempt to commit crime 
 is itself an indictable misdemeanor at common law, 2, 346, 484. 
 Attempt to steal, 346. Indictment for an attempt to drown, suf- 
 focate, or strangle, with intent to murder, 652 ; punishment, 652 ; 
 evidence, 652. Attempt to poison with intent to murder, statute, 
 651 ; indictment, 651 ; punishment, 651 ; evidence, 651, Indict- 
 ment for an attempt to shoot, with intent to murder, 653; punish- 
 ment, 653 ; evidence, 653. Indictment for an attempt to murder by 
 explosion of gunpowder, etc., 654 ; punishment, 654 ; evidence, 654. 
 Indictment for an attempt to shoot, with intent to maim, to disfigure, 
 to do some grievous bodily harm, or to prevent or resist apprehension 
 or detainer, 667 ; punishment, 667 ; evidence, 667. Indictment for 
 an assault with intent to rob, 420; punishment, 420; evidence, 420. 
 Indictment for administering poison to procure miscarriage, 711; 
 punishment, 711 J evidence, 712. Attempt to commit sodomy, statute, 
 
Index. 973 
 
 717; indictment, 718; punishment, 718; evidence, 718. Indictment 
 for an assault with intent to commit a felony, 684; punishment, 684; 
 evidence, 684. Indictment for attempting to bribe a constiible, 830 ; 
 punishment, 831; evidence! 831. Attempt to set fire to buildings, 
 statute, 517 ; indictment, 517 ; attempt to set fire to mines, statute, 
 513; attempt to set fire to ships, statute, 514; attempt to set fire to 
 crops, woods, heath, stacks, etc., statute, 518; attempt to blow up 
 buildings, statute, 521 ; attempt to damage ships with gunpowder, 
 statute, 534; attempt to commit suicide, 656; attempt to cut, break, 
 etc., telegrapli, statute, 543; attempt to liave carnal knowledge of girl 
 under twelve, statute, 710. 
 
 Attempts to murder, 648 — 656. 
 
 Attendance of witnesses, how enforced, 288 ; by recognizance, 288 ; by 
 subpoena, 288 ; where subpoena sued out, 288 ; may include names of 
 four witnesses, 289 ; service of, 289 ; copy should be served personally, 
 and original shown, 289 ; when to be served, 289 ; may be served in 
 any part of the United Kingdom, 289 ; to witnesses resident in India, 
 289 ; no tender of expenses necessary with subpoena, 289 ; except where 
 witness served in Scotland or Ireland, 289 ; by subpoena duces tecum, 
 where witness required to produce written instrument, 289 ; how sub- 
 poena duces tecum sued out and served, 289 ; by habeas corpus ad testifi- 
 candum, where witness in civil custody, 290 ; how this writ is obtained, 
 290 ; form of it, 290 ; how directed, 290 ; how served, 290 ; tender 
 of expenses with, 290 ; by warrant or order of secretary of state or 
 judge, where witness in criminal custody, 290. Non-attendance of 
 witnesses, how punished, 291 ; preventing witness from attending 
 court, a contempt, 291. 
 
 Attesting witness need not now be called, 264 ; unless the instrument re- 
 quires attestation, 264. 
 
 Attorney, privileged from giving evidence against his client, in what cases, 
 276. 
 
 Attorney applying to his own use money or securities intrusted to him for a 
 specific purpose, statute, 456; indictment, 459; punishment, 459; 
 evidence, 460, Converting to his own use any chattel, security, or 
 power of attorney intrusted to him for safe custody, or for any special 
 purpose, indictment, 460; punishment, 461 ; evidence, 461. Selling, 
 negotiating, etc., property intrusted to him for safe custody, statute, 
 457 ; punishment, 457. 
 
 Attorney, power of, frauds by persons intrusted with, statute, 456, 457; 
 punishment, 456, 457. 
 
 Auction, mock. See " Mock Auction." 
 
 Autrefois acquit, plea of, 130. In what cases, 130 — 134. Form of it, 132. 
 Replication to it, 133. Proceeding upon it, 133. Evidence necessary 
 to support it, 133. Judgment upon it, 134. In felony and treason the 
 defendant must plead over, 134. 
 
 Autrefois attaint, no plea, unless for the same crime, 137. 
 
 Autrefois convict, no plea, unless for the same crime, 134. 
 
 Averments in indictment, how made, 65. Divisible averments, 210. 
 
 Avowterer, larceny by, 341 ; killing of by husband, 632. 
 
 B. 
 
 Bail, 84—90. See " Practice," sect. 4. 
 
 Bail in error. See "Practice," sect. 15. 
 
 Bail, acknowledging without authority or excuse in name of another, statute, 
 
 614; indictment, 615 ; punishment, 615; evidence, 615. 
 Bail on indictment, 84 ; bail in error, 195. 
 Bailee, larceny by, statute,. 303 ; in what cases, 340. Larceny from, how 
 
 stated, 41, 321 ; and proved, 321. Larceny from, by the owner, how 
 
 stated, 41 ; and proved, 322, 329. Larceny from, by a joint tenant, in 
 
 what cases, 329. 
 
974 Index. 
 
 Bailor, larceny by, of his own goods, in what cases, 322, 329. 
 
 Bank bill of exchange, forging or uttering, 573. 
 
 Bank, Joint Stock. See " Joint Stock Bank." 
 
 Bank of England or Ireland, embezzlement by officers and servants of, 
 415. 
 
 Bank-notes, forgery of, 573. Forging and uttering a bank-note, statute, 
 573 ; indictment, 573 ; punishment, 574 ; evidence, 574. Purchasing 
 or receiving forged bank-note, 595 ; having a forged bank-note in pos- 
 session, statute, 595 i indictment, 596 ; punishment, 596 ; evidence, 596. 
 
 Bank-notes, stealing, statutes, 59, 370 ; indictment, 371 ; punishment, 371 ; 
 evidence, 371. 
 
 Bank-note paper, 607. 
 
 Bank-note, plates for, 608. 
 
 Bank-notes, how described in indictment, 59. 
 
 Bank post-bill, forging or uttering, 573. 
 
 Bank of the sea, or of a river, canal, drain, reservoir, pool or marsh, cutting 
 or breaking down, whereby lands are overflowed or damaged, statute, 
 538; indictment, 538 ; punishment, 538 ; evidence, 539. Cutting off, 
 drawing up, or removing piles, chalk, or materials, etc., from, statute, 
 !i'i9 i indictment, 539 ; punishment, 540 ; evidence, 540. 
 
 Bank, entry in the books of, how proved, 261, 
 
 Banker, frauds by, 456 ; applying to his own use money or securities in- 
 trusted to him for a speciiic purpose, statute, 456 ; indictment, 459 ; 
 punishment, 459 ; evidence, 460. Converting to his own use any chat- 
 tel, security, or power of attorney, intrusted to him for safe custody, or 
 for any special purpose, statute, 456 ; indictment, 460 ; punishment, 
 461; evidence, 461. Selling, negotiating, etc., any property intrusted 
 to him for safe custody, statute, 457 ; punishment, 457. 
 
 Banker's draft. See " Cheque," " Embezzlement." 
 
 Bankers' Pass Book, forgery of, 589. 
 
 Bankrupt, examination of, admissible as evidence against him, 230 ; dis- 
 closure by, on compulsory examination, when a bar to indictment, 355, 
 356, 357. 
 
 Bankrupt, commissioners of, power of, to commit, 697. 
 
 Bankrupt laws, offences against, 870 — 877; bankrupt not discovering pro- 
 perty to trustee, 870; bankrupt not delivering up property to trustee, 
 870; bankrupt not delivering up books to trustee, 870; bankrupt, 
 within certain periods, concealing property to the value of \Ql. or 
 upwards, 6r concealing debt, 870; bankrupt, within certain periods, 
 fraudulently removing property of the value of Wl. or upwards, 870; 
 bankrupt making material omission in statement relating to his affairs, 
 870; bankrupt not informing trustee of proof of false debt, 870; bank- 
 rupt preventing production of books, 870; bankrupt, within certain 
 periods, concealing, destroying, etc., books, 870; bankrupt, within 
 certain periods, making false entry in books, 870, 871; bankrupt, 
 within certain periods, fraudulently parting with, altering, etc., docu- 
 ment relating to his property, 871 ; bankrupt, within certain periods, 
 attempting to account for part of his property by fictitious losses or 
 expenses, 871 ; bankrupt, by fraud, obtaining property on credit, 871 j 
 bankrupt, under false pretence of carrying on business, obtaining pro- 
 perty on credit, 871; bankrupt pledging or disposing of, otherwise 
 than in the ordinary way of his trade, property obtained on credit and 
 not paid for, 871 ; bankrupt making false representation, etc., to obtain 
 consent of creditors to agreement, with reference to his affairs, 871; 
 bankrupt quitting England and taking with him property to the amount 
 of 20i or upwards, 871; bankrupt attempting or preparing so to do, 
 871. Any person obtaining credit under false pretences or by any other 
 fraud, 871 ; any person making transfer, etc. of his property with intent 
 to defraud his creditors, 871 ; any person concealing or removing his 
 property since, or within two months before, the date of unsatisfied 
 judgment, etc., with intent to defraud his creditors, 871, 872. Creditor 
 
Index. 975 
 
 in bankruptcy, etc., making false claim, proof, etc., 872. Court may 
 order trustee to prosecute bankrupt, 872 ; payment of expenses of pro- 
 secution where prosecution ordered by Court, 872, 875. Application 
 of Vexatious Indictments Act to offences against bankrupt laws, 872. 
 Provisions as to form of indictment, 872. Offences against bankrupt 
 laws may be tried at quarter sessions, 872. Indictment against bank- 
 rupt for not discovering property to trustee, concealing part of his pro- 
 perty and fraudulently removing part of his property, 873; punishment, 
 875 1 evidence, 875. Proceedings in bankruptcy, hov? proved, 247 — 
 249. 
 
 Bankruptcy, proof of proceedings in, 247 — 249. 
 
 Baptism, how proved, 258 ; register of, 258. Forging entry of, statute, 596 ; 
 indictment, 597 ; punishment, 598; evidence, 598. 
 
 Bar, plea in, 129 ; form of, 129. 
 
 Barge, in haven, port, river or canal, stealing from, statute, 407 ; indict- 
 ment, 408 ; punishment, 408 ; evidence, 408. 
 
 Bark. See *' Stacks,'^ " Steer J' 
 
 Barking trees. See " Tree.' ' 
 
 Eiarn, setting fire to, statute, 503 ; indictment, 507 ; punishment, 508 ; evi- 
 dence, 508 ; riotously demolishing, pulling down, or destroying, or be- 
 ginning to do so, statute, 523; indictment, 524; punishment, 624; 
 evidence, 524. Riotously injuring or damaging, 523, 524. 
 
 Baron and feme. See "Avowterer," " Husband," " Wife." 
 
 Barrister privileged from giving evidence against his client, in what cases, 
 276. 
 
 Basin, stealing from vessel, barge or boat in, 407, 408. 
 
 Bastard, how described in an indictment, 39. Verdict of concealment of 
 the birth of, upon an indictment for murder, 713, 714. 
 
 Battery, what, 659. How justified, 660—663. Se defendenda, 661 ; in de- 
 fence of the party's possession, 661 ; in the execution of process, 662. 
 See ** Assault," " Beating." 
 
 Bawdy-house, statute, 892 ; indictment for keeping, 894 ; punishment, 894 ; 
 evidence, 894 ; wife may be indicted jointly with liusband for keeping, 
 23, 894 ; what sufficient evidence of keeping, 895 ; indictment for 
 keeping, not removable by certiorari, 892. 
 
 Beast (not the subject of larceny at common law), stealing, punishment, 
 320. Having possession of, or of the skin thereof, punishment, 320. 
 See "Animal," " Cattle," " Dog." 
 
 Beating, murder by. See " Murder." 
 
 Beating or wounding gamekeepers in the execution of their duty, statute, 
 686; indictment, 687; punishment, 688 ; evidence, 688. 
 
 Begging- letter, obtaining money by means of false statements in, 472. 
 
 Bench warrant, 82. 
 
 Benefit of clergy abolished, 123. 
 
 Benefit society, stealing funds of, 329. See " Larceny." 
 
 Bestiality, statute, 716; indictment, 717; punishment, 717. Attempt to 
 commit, 717. See " Abominable Crime,'* " Infamous Crime," *' Sodomy." 
 
 Betting-houses, statute for suppression of, 893. 
 
 Bible, entry in, in what cases evidence, 260. 
 
 Bigamy, statute, 882 ; indictment, 883 ; venue, 26, 883; punishment, 883 ; 
 evidence on the part of the prosecution, 883 ; evidence for the defend- 
 ant, 888. 
 
 Bill in equity, how proved, 244. 
 
 Bill of exceptions, not allowed in cases of treason and felony, 162 ; nor, 
 semble, in any criminal case, 161, 162. 
 
 Bill of exchange, stealing, 370. See "Embezzlement." Forging and utter- 
 ing a bill of exchange, or any acceptance, indorsement or assignment 
 thereof, statute, 577 ; indictment, 577; punishment, 578; evidence, 
 578. By false pretences, fraudulently inducing persons to accept, etc., 
 statute, 469; indictment, 485 j punishment, 485 ; evidence, 485. In- 
 ducing persons to execute by force, statute, 412. 
 
976 Index. 
 
 Bill of lading, stealing, etc., 370. 
 
 Bills, private. See " Private Bills." 
 
 Bird (not the subject of larceny at common law), stealing, punishment, 320. 
 Having possession of, or of the plumage thereof, punishment, 320. 
 
 Birth. See " Concealing." 
 
 Birth, how proved, 258 ; making false statements touching, to a registrar, 
 828. 
 
 Births, marriages and deaths, forging, etc., registers of, 596. 
 
 Bishop, certificate of, in what cases evidence, 260. 
 
 Bit, having in possession by night without lawful excuse, 487, 488, 502. 
 
 Black cawke. See " Mine." 
 
 Black game. See " Game." 
 
 Black lead. See "Mine." 
 
 Blackened face, person found by night having, with intent to commit felony, 
 487, 488. 
 
 Blasphemous libel, statutes, 775, 777: indictment for, 776; punishment, 
 777; evidence, 777. 
 
 Blood, corruption of. See " Corruption of Blood." 
 
 Board of Admiralty, Board of Trade or Poor Law Board, proclamation, 
 order or regulation issued by, how proved, 262, 263 ; forgery of instru- 
 ment of proof of, 602. 
 
 Boat in haven, port, river or canal, stealing from, statutes, 407; indictment, 
 408 ; punishment, 408 ; evidence, 408. 
 
 Bodies, dead, taking up, indictment, 929 ; punishment, 929; evidence, 929. 
 Disposing of, for dissection, 929. Not the subjects of larceny, 318. 
 
 Bodily fear. See " Menaces." 
 
 Bodily harm, causing grievous, with intent to murder, statute, 648; indict- 
 ment, 648; punishment, 649; evidence, 649. With intent to maim, 
 etc., 663 ; inflicting grievous, with or without weapon, 663 ; causing 
 grievous, by gunpowder, etc., 672; assault occasioning actual, 657. 
 Placing gunpowder, etc., near buildings, etc., with intent to do bodily 
 injury, statute, 672; setting spring guns, etc., with intent to do 
 grievous bodily harm, 674; drivers of carriages causing bodily harm, 
 677 ; master causing bodily harm to apprentice or servant, 691. See 
 "Actual Bodily Harm," and "Grievous Bodily Barm." 
 
 Boiling water destructive matter, 674. 
 
 Bond. See "Embexzlemeut." Forging and uttering a bond, statute, 675; 
 indictment, 576; punishment, 576; evidence, 576. Stealing bond, 
 370. 
 
 Books of corporations and public companies, entries in, how proved, 261. 
 Poll books of an election, how proved, 259. Prison books, in what 
 cases evidence, 259. 
 
 Books, fraudulently destroying, mutilating, etc., by officers of public com- 
 panies or bodies corporate, 464, 465. 
 
 Books, bankrupt not delivering up to trustee, 870 ; bankrupt preventing 
 production of, 870; bankrupt concealing, destroying, etc., 870; bank- 
 rupt making false entry in, 870, 871; bankrupt parting with, altering, 
 etc., 871. 
 
 Borough, building belonging to, setting fire to, statute, 504 ; riotously de- 
 molishing, pulling down or destroying, or beginning to do so, statute, 
 523; riotously injuring or damaging, statute, 523, 524. 
 
 Borough, jurors in, their qualifications and exemptions, 145, 146. 
 
 Bought and sold note, stealing, etc., 370. 
 
 Boundaries of counties, offences committed on, where tried, 33. 
 
 Boxing, killing by, 630. 
 
 Brass. See " Fixtures." 
 
 Breach of trust. See "Agent," "Attorney," "Bailee," '■'Banker," "Broker," 
 "Factor," "Merchant." 
 
 Breach of prison, statutes, 798; indictment, 798; punishment, 798; evi- 
 dence, 799. Aiding prisoner to escape, statute, 799. Indictment for 
 
hidex. 977 
 
 conveying files, etc., to a prisoner, to enable him to break prison, 801 ; 
 punishment, 801 ; evidence, 802. 
 
 Breaking bulk not now necessary to constitute larceny, 303, 340. See 
 *' Larceny.'* 
 
 Breaking, what, in burglary, 497; actual, 497; constructive, 497. 
 
 Breaking and entering a church, chapel, meeting-house, or other place of 
 divine worship, and committing any felony therein, statute, 395 ; in- 
 dictment, 395; punishment, 396; evidence, 396. Committing any 
 felony therein, and breaking' out of the same, statute, 395 ; indict- 
 ment, 397 ; punishment, 397; evidence, 397; breaking and entering 
 same, with intent to commit any felony therein, statute, 398. 
 
 Breaking and entering a building within the curtilage, and committing any 
 felony therein, statute, 404; indictment, 404; punishment, 404; evi- 
 dence, 404. Committing felony therein and breaking out of same, 
 statute, 404 ; breaking and entering same with intent to commit any 
 felony therein, statute, 398. Curtilage, what is, 405, 492. See " Bur- 
 glary." 
 
 Breaking and entering a dwelling-house, school-house, shop, warehouse, or 
 counting-house, and committing any felony therein, statute, 397 ; in- 
 dictment, 398; punishment, 399; evidence, 399. Committing any 
 felony therein and breaking out of same, statute, 397 ; breaking and 
 entering same with intent to commit any felony therein, statute, 398 ; 
 indictment, 403 ; punishment, 403 ; evidence, 403. 
 
 Bribery, 830. Indictment for attempting to bribe a constable, 830; punish- 
 ment, 831 ; evidence, 831 ; statutes relating to bribery at municipal 
 and parliamentary elections, 831. Form of indictment for bribery at 
 parliamentary elections, 52 ; within what time prosecution for, must 
 be commenced, 74; costs of prosecution for, 296; not triable at quarter 
 sessions, 104 ; holding of election, how proved on trial for, 261. 
 
 Bridge. See "Mine." Indictment for not repairing a bridge, 915; pleas, 
 and evidence, 916. 
 
 Bridge, pulling down or destroying, statute, 540 ; indictment, 541 ; punish- 
 ment, 541 ; evidence, 541. Injuring, with intent to render dangerous 
 or impassable, statute, 540 ; indictment, 541 ; punishment, 541 ; evi- 
 dence, 541. Larceny of the materials or tools provided for the repair 
 of public, how described, 44. 
 
 British colonies, judgments of the courts in, how proved, 257. 
 
 British ship on high seas, liability for crime committed on board of, 31 ; 
 how ship proved to be British, 31, 269. 
 
 Broker, applying to his own use money or securities intrusted to him for a 
 specific purpose, statute, 456 ; indictment, 459 ; punishment, 459 ; 
 evidence, 460. Converting to his own use any chattel, security, or 
 power of attorney, intrusted to him for safe custody, or for a special 
 purpose, indictment, 460; punishment, 461; evidence, 461. Selling, 
 negotiating, etc., property intrusted to him for safe custody, statute, 
 457 ; punishment, 457. 
 
 Buggery. See*' Abominable Crime," ''Infamous Crime" "Sodomy" 
 
 Building. See " Breaking and Entering." 
 
 Building, public, goods and chattels provided for and at the expense of 
 counties, etc. to repair, or to be used in or with, larceny of, how de- 
 scribed, 44, 
 
 Building or erection used in farming land or in carrying on any trade or 
 manufacture, setting fire to, statute, 503, 504 ; indictment, 507 ; punish- 
 ment, 508 ; evidence, 608. Riotously demolishing, pulling down, or 
 destroying, or beginning to do so, statute, 523 ; indictment, 524 ; 
 punishment, 524; evidence, 524. Riotously injuring or damaging, 
 statute, 523, 524. 
 
 Buildings, injuries to, by tenants, 525. 
 
 Buildings, other than those specifically mentioned in 24 & 25 Vict. c. 97, 
 setting fire to, statute, 504, 
 
• 978 Index. 
 
 Buildings, setting fire to goods in, statute, 501. 
 
 Buildings, destroying, etc., by explosion of gunpowder, etc., whereby life of 
 any person endangered, statute, 520; indictment, 522; attempt to 
 blow up, statute, 521 ; destroying, etc., by explosion of gunpowder, 
 etc., with intent to commit murder, 651. 
 
 Bull. See " Cattle." 
 
 Buoy or buoy-rope, cutting away, casting adrift, removing, altering, defac- 
 ing, sinking, etc., or injuring or concealing, statute, 537; indictment, 
 537; punishment, 537; evidence, 538. 
 
 Burglary, statute, 187; meaning of the word night in, 187, 190. What 
 buildings are not to be deemed part of house for purposes of burglary, 
 statute, 397. Indictment for burglary and larceny, 188; punishment, 
 489 i evidence, 489. Indictment for burglary by breaking out of a 
 house, 500; punishment, 501 ; evidence, 501. Being found by night 
 armed, etc., with intent to break into any house, etc., and commit a 
 felony therein, statute, 187; indictment, 501; punishment, 502; evi- 
 dence, 502. Entering dwelling-house in night with intent to commit 
 felony therein, statute, 487. See "Housebreaking." 
 
 Burglary in a church, 196. 
 
 Burglary in the apartments of a lodger, how laid, 495; in the room of a 
 guest in an inn, how laid, 495. 
 
 " Burglariously," necessary in indictments for burglary, 60. 
 
 Burial, how proved, 258; forging register of, 596. Obstructing minister in 
 performing service of, 677. 
 
 Burial ground, stealing fixtures in, 368. 
 
 Burial of executed offender where to take place, 616. 
 
 Burning, 503. See "Arson." Burning and setting fire to ships of war, in 
 dockyards, indictment, 517; or beyond seas, 29; the Queen's stores, 
 timber or ammunition of war, or the places where the same are kept, 
 517 ; the works, or ships, or vessels lying in or being in any canal, or 
 in any of the docks, basins, cuts, or other works of the port of London, 
 517 ; any magazines or stores of powder, or ship, boat, ketch, hoy, or 
 vessel, or the tackle or furniture thereunto belonging, not appertaining 
 to an enemy or rebel, 517. 
 
 Burning crops of corn, plantations, etc., 518, 520. See "Arson," " Crops." 
 
 Burning stacks of corn, hay, peat, etc., 518. See " Arson," " Stocks." 
 
 Burning stations, warehouses, etc., belonging to railways, docks, canals, 
 etc., 504. See " Arson." 
 
 Bustard. See " Game." 
 
 Buying or selling counterfeit coin at a lower value, statute, 750 ; indictment, 
 750; punishment, 750; evidence, 751. 
 
 Cables. See " Chain Cables." 
 
 Calf. See " Cattle." 
 
 Canal, lock, sluice, floodgate, or other work on, throwing down, levelling, or 
 destroying, statute, 538; indictment, 538; punishment, 538; evidence, 
 539. Opening floodgates, or doing other injury to canals, with intent 
 and so as to obstruct the navigation, indictment, 540 ; punishment, 
 540 ; evidence, 510. 
 
 Canal, bank, dam or wall of, cutting or breaking down, etc., whereby lands 
 are overflowed or damaged, or are in danger of being so, statute, 538 ; 
 indictment, 538 ; punishment, 538 ; evidence, 539. Cutting ofi", draw- 
 ing up, or removing piles, chalk, or materials, etc., fixed in the ground 
 or used to secure bank, dam, or wall of canal, statute, 539 ; indictment, 
 539 ; punishment, 510 ; evidence, 540. 
 
 Canal, stealing from vessel, barge, or boat on, statute, 107; indictment, 
 408 ; punishment, 108 ; evidence, 408. 
 
 Cannel coal. See " Mine." 
 
Index. . 979 
 
 Capias, writ of, 79. Capias cum proclamatione, 84. Capias utlagatum, 84. 
 See " Practice," sect. 3. 
 
 Capital Punishment Amendment Act, 1868, false certificates or declarations 
 under, 828. 
 
 Captain of a merchant vessel. See " Seamen." 
 
 Caption of an indictment, 37 ; form of it, 37. 
 
 Cards. See *' Gaming.'' 
 
 Caricature. See ** Libel." 
 
 Carnal knowledge, not necessary to prove emission in order to constitute, 
 statute, 704 ; complete on proof of penetration only, statute, 704. 
 
 Carnally knowing and abusing a girl under ten years, statute, 708 ; indict- 
 ment, 708 I punishment, 709 ; evidence, 709. Carnally knowing and 
 abusing a girl between the ages of ten and twelve, statute, 708; indict- 
 ment, 709; punishment, 709; evidence, 709. Attempts to commit the 
 above offences, statute, 710. 
 
 Carriage, 35. See " Venue." 
 
 Carriage, doing bodily harm to any person by furiously driving, statute, 
 677 ; indictment, 677 ; punishment, 677 ; evidence, 677. 
 
 Carriage and deposit of dangerous goods, 917. 
 
 Carrier or other bailee, larceny by, 340 ; not necessary now that he should 
 break bulk or otherwise determine the bailment, 340. 
 
 Carrying away, necessary to constitute larceny, 345 ; but if not proved, 
 prisoner may be convicted of attempt to steal, 346. 
 
 Catholics, disturbing the public worship of, 931. 
 
 Cattle— horse, mare, gelding, colt, or filly, bull, cow, ox, heifer, or calf, ram, 
 ewe, sheep, or lamb, stealing, 349. Killing with intent to steal car- 
 case, skin, or any part of animal so killed, statute, 349; indictment, 
 350. Maliciously killing, maiming, or wounding any cattle, statute, 
 546; indictment, 546 ; punishment, 547 ; evidence, 547. 
 
 Cattle, what this word includes, 547. 
 
 Cautions to be observed in admitting presumptive or circumstantial evi- 
 dence, 238. 
 
 Central Criminal Court Act, 28. 
 
 Central Criminal Court, trial at, of offences committed beyond its jurisdic- 
 tion, 101 ; offenceswithin the jurisdiction of the Admiralty triable at 
 the, 32 ; certain homicides committed by persons subject to the Mutiny 
 Act triable at, 28. 
 
 Certainty required in an indictment, etc., 37, 38; certainty as to the party 
 indicted, 38 ; certainty as to the person against whom the offence was 
 committed, 39 ; certainty as to time and place, 47 ; certainty as to the 
 facts; circumstances, and intent constituting the offence, 51 ; certainty 
 to a certain intent in every particular, what, and in what cases requi- 
 site, 53, 54; certainty to a common intent, what, and in what cases 
 requisite, 53, 54 ; certainty to a certain intent in general, what, and in 
 what cases requisite, 53, 54. 
 
 Certainty required in stating matter of inducement, 55. 
 
 Certainty required in an indictment for perjury, 55. 
 
 Certainty required in statutes enhancing punishment, or creating new 
 offences, 60. 
 
 Certificate, on commitment, of the magistrate's consent to bail, 87. 
 
 Certificate of acquittal or conviction, as proof of a plea of autrefois acquit or 
 convict, 133, 241. 
 
 Certificate of justices for payment of expenses in cases within summary 
 jurisdiction, 312. 
 
 Certificate of justice of peace under Local Stamp Act, 1869, forgery of, 604. 
 
 Certificate of former conviction, where evidence upon trial for subsequent 
 offence. See " Conviction." Uttering a false certificate of previous 
 conviction, punishment, 602. 
 
 Certificate of the clerk of assize, or of the peace, of a decision of the Court 
 for Crown Cases Reserved, 183. 
 
980 Index. 
 
 Certificates of bishops, in what cases evidence, 260 ; of consuls abroad, not 
 evidence, 260 ; of judges in Wales formerly were evidence, 260 ; of 
 magistrates as to a road being in repair, 260; of justices upon an 
 assault, 131, 662; of the Apothecaries' Company, 260; of trial of 
 indictment on which perjury committed, 811. 
 
 Certificates of baptism, 258 ; of burial, 258 ; of marriage, 258. Forgery of, 
 statutes, 596 ; indictment, 597 ; punishment, 598 ; evidence, 598. 
 
 Certiorari, 94 — 103. See "Practice," sect. 6. 
 
 Certiorari, indictment for keeping bawdy-house, gaming-house, or other 
 disorderly house, not removable by, 892. 
 
 Chain cables, frauds in stamping and sale of, 486. 
 
 Challenge of jurors, 150—158; when to be made, 150. 
 
 Challenge to fight, indictment for sending, 851; venue, 35; punishment, 
 852 ; evidence, 852. Indictment for provoking a man to send a chal- 
 lenge, 852; punishment, 852; evidence, 852. 
 
 Channel Isles not parts of the realm, 29. 
 
 Chapel. See " Church." 
 
 Character 
 
 of prisoner, evidence of good, to raise presumption of innocence, 218 ; 
 such evidence may be rebutted by evidence of his bad character, 218 ; 
 or, in some cases, by proof of previous conviction, 218; witness to pri- 
 soner's character not allowed to speak to his own opinion, but only as 
 to prisoner's reputation, 218. 
 of witness, cannot be impeached by party producing him by general evi- 
 dence of bad character, 284 ; but such party may, under certain circum- 
 stances, contradict him, or show that he has made statement incon- 
 sistent with his evidence on the trial, 284; how impeached by 
 opposite party, 278 — 280; by evidence of general bad character, 278; 
 by cross examination as to offence imputed to him, 278, 279; witness 
 not bound to answer to such cross-examination where it would criminate 
 himself, 279 ; but must answer all other questions put for purpose of 
 impeaching his character, 280 ; his denial of offence imputed to him 
 cannot be contradicted, 2S0; evidence of general bad character may be 
 rebutted by evidence of general good character, 280 ; witness may be 
 asked whether he has been convicted, 280 ; conviction may be proved 
 on his denial or refusal to answer, 280. 
 of prosecutrix, for want of chastity, may be proved upon indictment for 
 rape, 217. 
 
 Charcoal. See " Stacks." 
 
 Charge on property, making or causing to be made, with intent to defraud 
 creditors, 871. 
 
 Chase. See " Deer." 
 
 Chattels, personal, how described in an indictment, 57, 58; obtaining loan 
 of by false pretences, not indictable, 479, 480. 
 
 Chattels, real or personal, certain frauds on mortgage or sale of. See 
 *^ Mortgagor " ** Seller." 
 
 Cheating, 468 — 487 ; obtaining goods, etc. by false pretences, statute, 468 ; 
 indictment, 469; punishment, 470; what false pretences are within the 
 statute, 470 — 480; evidence, 480. Indictment for selling by false 
 scales, 485 ; punishment, 486 ; evidence, 486. Indictment for selling 
 by false weights, 485. Allegation of intent to defraud any particular 
 person now unnecessary in indictment for false pretences, 468. 
 
 Chelsea Hospital, property of, how described, 45. 
 
 Chemists. See " Registers." 
 
 Cheque upon a banker, forgery of, statute, 580 ; indictment, 581 ; punish- 
 ment, 581 ; evidence, 581. Larceny of, statute, 370 ; indictment, 371 ; 
 punishment, .371 ; evidence, 371. Embezzlement of, 442, 445. Cheque 
 upon a banker with whom the drawer has no account, obtaining money 
 etc., upon, how punishable, 476. Altering, etc., crossings on, 580. 
 
 Child, capability of, to commit crimes, 16 ; not excused for crime committed 
 
Index. 981 
 
 by parent's order, 22; may be witness for or against his parent, 276; 
 may justify a battery, 661 ; or even a homicide, 631 — in defence of his 
 parent. 
 Child, under age of two years, abandonment or exposure of, whereby life 
 
 endangered or health injured, 693. 
 Child, carnally abusing, 708. See " Carnally knowing and abusing," "Rape." 
 Child, concealing the birth of, 713; statute, 713 ; indictment, 714!; punish- 
 ment, 714; evidence, 714; conviction , of concealnient of birtbyOiv 
 
 indictment for murder, 713, 714. 
 
 Child-stealing. Stealing, decoying, enticing away, ~-ot detaining a child 
 under the age of fourteen years, statute, 702 ; indictment, 703 ; punish- 
 ment, 703 ; evidence, 703. Receiving stolen children, 702, 703. 
 
 Child-murder. See '* Murder^^ Verdict of concealing the birth, upon an 
 indictment for, 713, 714; evidence, 714. 
 
 Child's clothes, property in, how laid in indictment, 42. 
 
 Chloroform, using, for the purpose of committing any indictable offence, 
 statute, 669 ; indictment, 670 ; punishment, 670 ; evidence, 670. 
 
 Choke, attempting to, with intent to commit any indictable offence, statute, 
 668; indictment, 668; punishment, 669 ; evidence, 669. 
 
 Choses in action, not the subject of larceny at common law, 317; how far 
 this rule altered by statute, 318. See " Valuable Security." Certain 
 frauds on mortgage or sale of. See " Mortgagor," " Seller." 
 
 Christening, how proved, 258. 
 
 Christian name of the defendant in an indictment or information, 38. 
 
 Church, chapel, meeting-house, or other place of divine worship, breaking 
 and entering, and committing any felony in, statute, 395 ; indictment, 
 395; punishment, 396; evidence, 396. Committing any felony in and 
 breaking out of, statute, 395 ; indictment, 397 ; punishment, 397 ; 
 evidence, 397 ; breaking and entering with intent to commit felony, 
 statute, 398. Setting fire to, statute, 503; indictment, 512; punish- 
 ment, 512; evidence, 512. Riotously demolishing, pulling down, or 
 destroying, or beginning to do so, statute, 523 ; indictment, 524 ; 
 punishment, 524; evidence, 524; riotously injuring or damaging, 
 statute, 523, 524; destroying, etc., any picture, statue, painted glass, 
 etc., in, S53. 
 
 Churchyard, stealing fixtures in, 368 ; injuring statues, etc. in, 553. 
 
 Circumstantial evidence, 235 — 238. Cautions to be observed in receiving 
 it, 238. See "Presumptive Evidence." 
 
 City, building belonging to, setting fire to, statute, 504 ; riotously demo- 
 lishing, pulling down, or destroying, or beginning to do so, statute, 523 ; 
 riotously injuring or damaging, statute, 523, 524. 
 
 Claim of right, taking goods under, not larceny, 325. 
 
 Clergy, benefit of, abolished, 123. 
 
 Clergymen, obstructing, etc., in discharge of their duties, statute, 677 ; in- 
 dictment, 678; punishment, 678; evidence, 678; indictment for ar- 
 resting, 678. 
 
 Clerks, embezzlement by. See " Emhexxlement." Larceny by, statute, 346 ; 
 indictment, 346 ; punishment, 347 ; evidence, 347. 
 
 Clipping coin. See " Coin." 
 
 Coach. See " Venue." 
 
 Coach-house, setting fire to, statute, 503 ; indictment, 507 ; punishment, 
 508 ; evidence, 508. Riotously demolishing, pulling down, or destroy- 
 ing, or beginning to do so, statutes, 523; indictment, 524; punish- 
 ment, 524; evidence, 524; riotously injuring or damaging, statute, 
 523, 524. 
 
 Coachman, causing bodily harm to any person by furious driving, etc., 677. 
 
 Coal See "Mine," "Stacks." 
 
 Codicil. See " mil." 
 
 Cognovit, how proved, 245 ; acknowledging without authority or excuse in 
 name of another, 614. 5ee "Acknowledging." 
 
 Coining in general, 740 — 766. 
 
982 Index. 
 
 Coin of the realm, offences relating to the, statute, 740 ; current coin, 
 coanterfeit coin, definition of, 743 ; may be described as money, 59. 
 Counterfeiting gold and silver coin, statute, 744 j indictment, 744; 
 punishment, 744; evidence, 744. Colouring coin, statute, 745; in- 
 dictment, 746 ; punishment, 746 ; evidence, 746. Indictment for 
 colouring metal, 747; punishment, 747; evidence, 747. Indictment 
 for filing and altering coin, 747 i punishment, 748 ; evidence, 748. 
 Impairing gold and silver coin, statute, 748 ; indictment, 748 ; punish- 
 ment, 748; evidence, 749. Defacing coin, statute, 749; indictment, 
 749 ; punishment, 749 ; evidence, 749. Buying or selling counterfeit 
 coin at a lower rate than by its denomination it imports, statute, 750 ; 
 indictment, 750; punishment, 750; evidence, 751. Importing coun- 
 terfeit coin, statute, 751; exporting counterfeit coin, statute, 764; in- 
 dictment for importing counterfeit coin, 751 ; punishment, 752; evi- 
 dence, 752. Uttering counterfeit coin, statute, 752 ; indictment, 753 ; 
 punishment, 753 ; evidence, 753 ; uttering, accompanied by posses- 
 sion of other counterfeit coin, or followed by a second uttering, 752; 
 uttering after former conviction, statute, 753 ; punishment, 753 ; in- 
 dictment for uttering counterfeit coin, having at the same time 
 counterfeit coin in possession, 754 ; punishment, 754 ; evidence, 
 754; indictment for uttering twice within ten days, 755; punish- 
 ment, 755; evidence, 755; indictment for a subsequent uttering 
 after a previous conviction, 755 ; punishment, 756 ; evidence, 757. 
 Having in possession three or more pieces of counterfeit coin, sta- 
 tute, 757; indictment, 757 ; punishment, 757 ; evidence, 758. Coin- 
 ing tools, statute, 758 ; indictment for making a puncheon, etc., for 
 coining, 759 ; punishment, 759 ; evidence, 759 ; indictment for having 
 a puncheon in possession, 760 ; punishment, 760 ; evidence, 761 ; in- 
 dictment for making a collar, 761; punishment, 761; evidence, 761; 
 indictment for making a press for coining, 762; punishment, 762; 
 evidence, 762. Conveying coining tools and coins out of the Mint, 
 statute, 762; indictment, 763; punishment, 763 ; evidence, 763. Other 
 offences relating to coin, 763. Offences relating to the coin, committed 
 in the colonies, 766. 
 
 Coin, foreign, offences relating to, 764, 765. 
 
 Coining-tools, statute, 758; indictment for having in possessior, 760; 
 punishment, 760 ; evidence, 761. 
 
 Collateral facts. See " Issue." 
 
 College of university, building belonging to, setting fire to, statute, 504; 
 riotously demolishing, pulling down or destroying, or beginning to do 
 so, statute, 523 ; riotously injuring or damaging, statute, 523, 524. 
 
 Colonial governors, crimes, etc., of, committed abroad, where triable, 29, 30. 
 
 Colonies, British, judgments in the courts of, how proved, 257 ; not parts of 
 the realm, 29. 
 
 Colt. See " Cattle." 
 
 Combinations by workmen, 943. Assault in pursuance of combinations to 
 raise wages, indictment, 686 ; punishment, 686 ; evidence, 686. 
 
 Command, to command the commission of a felony, itself a felony, 951. 
 
 Commander-in-chief, crimes, etc., of, committed abroad, where triable, 
 29, 30. 
 
 Commencement of an indictment, 24; of a second count, 73; of an infor- 
 mation ex officio, 108; of an information by the master of the Crown- 
 office, 114; of special pleas, 129; of replication, 129; of rejoinder, 130. 
 
 Commission of an offence, how far it detracts from the credit of a witness, 
 278. 
 
 Commissioners of bankrupt, authority of, to commit, 697. 
 
 Commissioners of sewers, property under, how described in an indictment, 
 45, 324 ; and proved, 324. 
 
 Commissioners of Treasury. See " Treasury, Commissioners of." 
 
 Committee of either house of parliament on private bills, false evidence 
 before, 828. 
 
Index. 983 
 
 Corainon assault, 6S7 et seq. 
 
 Common recovery, how proved, 243. 
 
 Common nuisance. See " Nuisance." 
 
 Companies' Act, 1862, perjury in proceedings under, 828. 
 
 Companies, public, fraudulent appropriation of property by directors or 
 officers of, etc., statute, 464; keeping fraudulent accounts, 464; de- 
 stroying or mutilating books, 464 j publishing fraudulent statements, 
 465 ; falsifying books on winding-up company, 465. Indictment 
 against a director of a public company for fraudulently appropriating 
 the company's money, 467 ; punishment, 467 ; evidence, 467. Indict- 
 ment for publishing fraudulent statements, 467 ; punishment, 468 j 
 evidence, 468. 
 
 Companies, public, entries in the books of, how proved, 261. 
 
 Companies, public, forgeries relating to, 606. 
 
 Companies, joint-stock, how described in an indictment, 43, 45, 46. 
 
 Comparison of handwriting, in what cases evidence, 267. 
 
 Compassing the Queen's death. See " Treason." 
 
 Compensation, power of court to award, on conviction for felony, for loss of 
 property sustained by means of the felony, 177a; pecuniary lipiit of 
 such compensation, 177a ; how such compensation is to be recovered, 
 177o. 
 
 Competency of witnesses, 270 — 277 ; idiot, 270 ; lunatic, 270 ; deaf and 
 dumb, 270; dumb, 270 ; infant, 270; atheist, 271 ; deist, 270; nature 
 and degree of religious faith requisite in witness, 270 ; conviction of 
 certain crimes formerly rendered witness incompetent, 271 ; but com- 
 petency in general restored by pardon, 271 ; or by endurance of pu- 
 nishment, 271 : crime now does not render witness incompetent, 271 ; 
 interest. formerly rendered witness incompetent, 272 ; not so now, 273 ; 
 accomplice always competent as a witness, 272 ; but practically his 
 evidence not acted upon unless confirmed, 272; kind of confirmation 
 required, 272; defendants in criminal cases cannot be witnesses for 
 or against themselves, 273; but may give evidence for or against their 
 co-defendants, 273; exceptions, 274; defendants, when acquitted or 
 convicted, may give evidence for or against their co-defendants, 274; 
 competency of defendants as witnesses in revenue prosecutions, 274 ; 
 husband and wife cannot be witnesses for or against each other in cri- 
 minal cases, 274 ; semble, that this rule does not extend to persons not 
 married, but living together as husband and wife, 275; exceptions to 
 rule that husband and wife cannot be witness for or against each other, 
 275 ; father a competent witness against child, 276 ; child against 
 father, 276 ; master against servant, 276; servant against master, 276 ; 
 wife of prosecutor may give evidence for crown or for defendant, 275 ; 
 witness not previously examined before magistrate cannot be rejected 
 when tendered at the trial on the part of the prosecution, 277 ; although 
 no notice has been given to the prisoner, 277 ; but such a proceeding is 
 objectionable, 277. 
 
 Composition under Part 7 of Bankruptcy Act, 1869, how proved, 249. 
 
 Compound larceny. See " Larceny." 
 
 Compounding felony, statute, 835 ; indictment, 836 ; punishment, 837 ; 
 evidence, 837. Taking a reward for the recovery of stolen property, 
 indictment, 837 ; punishment, 837 ; evidence, 838. 
 Compulsory disclosure, when a bar to indictment under Larceny Act, 355, 
 
 356. 
 Concealing the birth of a child by secret burying, etc., statute, 713 ; indict- 
 ment, 7)4; punishment, 714; evidence, 714. Verdict of, upon an 
 indictment for child murder, 713, 714. 
 Concealing documents of title to land, 357. 
 
 Concealing instruments of title or incumbrances from purchaser or mort- 
 gagee by vendor or mortgagor, bis solicitor or agent, 358, 359 ; prosecu- 
 tion for such offence not to be commenced without sanction of attorney or 
 
984 Index. 
 
 solicitor-general, 359 ; such sanction not to be given without previous 
 notice to person intended to be prosecuted, StM. 
 
 Concealing wills, codicils, or other testamentary instruments, statute, 35S ; 
 indictment, 356 ; punishment, 356; evidence, 356. 
 
 Concealment of property by bankrupts, 870, 871 i byjudgment debtor, 871, 
 872. 
 
 Conclusion of an indictment, 66; learning relating to, seems to be obsolete, 
 67; indictment not insufficient for want of proper or formal, 67; of an 
 information ex officio, 109 ; of an information by the master of the 
 * Crown-office, 114; of special pleas, 129; of replication, 130; of re- 
 joinder, 130. 
 ' Confessions, kinds of, 223 ; when made in open court, 223 ; when the de- 
 fendant submits to a fine, 223 ; upon an examination before magis- 
 trates, 224 ; or to any other person, 224. They must be voluntary, 224 ; 
 if made through promises or threats by persons in authority, they shall 
 not be received in evidence, 224 ; although facts arising from them 
 may, 231. Who are persons in authority, 224, 225 ; in order to exclude 
 confessions made under its influence, the promise or threat must 
 relate to temporal matters, 226. When previous examinations of pri- 
 soner upon oath may be given in evidence against him, 229 — 231. 
 How confessions proved, 231. Effect of, 233. They are sufficient, 
 without confirmation, 233. They are evidence only against the party 
 who made them, and not against his accomplices, 234<. Opening to the 
 jury, 159. 
 
 Confinement, solitary. See" Solitary Confinement." 
 
 Conservatory. See " Fruit," " Roots." 
 
 Conspiracy, what, 937. Indictment, generally, 936 — 941 ; venue, 941 ; 
 evidence generally, 941. Indictment for a conspiracy, to charge a man 
 with a crime, 936; punishment, 937; evidence, 941. Indictment for a 
 conspiracy to commit a crime, 942; evidence, 943. 
 
 Conspiracy, husband and wife cannot alone be found guilty of, 23. 
 
 Conspiracy, assault in pursuance of, to raise the rate of wages, indictment 
 for, 686 ; punishment, 686 ; evidence, 686. 
 
 Conspiracy to murder, statute, 647; indictment, 647; punishment, 647; 
 evidence, 648. 
 
 Constable. See ^'Officer," "Peace Officer." Indictment for refusing to 
 serve the office of chief constable, 932; punishment, 933; evidence, 
 933. Indictment for refusing to serve the office of petty constable, 
 933. Appointment of parish constables, 934. Refusing to assist con- 
 stable in the execution of his duty, 685. Assaults on peace officers or 
 their assistants, 683. 
 
 Constable, larceny by, 348 ; embezzlement by, 455. 
 
 Construction, general rule of, for criminal statutes, 63. 
 
 Constructive taking, in larceny, what, 331, 332, 344. Distinction between 
 a constructive taking in larceny and an embezzlement, 347. 
 
 Consul, certificate of, not evidence, 260. 
 
 Contempt, arrest for, a justification for imprisonment, 697. 
 
 Contents of a deed, how proved, 219, 264. 
 
 Continuous taking in larceny, instances of, 71, 72, 362. 
 
 Contract for sale of shares or stock in joint-stock bank. See " Joint- Stock 
 Bank." 
 
 Contributory negligence of deceased no defence to charge of manslaughter, 
 637. 
 
 Conversion of property by bailees, larceny, 340. 
 
 Conveyance. See " Deed." 
 
 Conviction, how far it affects the evidence of a witness, 271, 278 ; incom- 
 petency of witness on account of, abolished, 271 ; of felony or misde- 
 meanor, witness may be questioned on cross-examination as to his, 
 280; on his refusal to answer or denial, conviction may be proved, 
 280 ; how conviction proved in such case, 280. 
 
Index. '985 
 
 Conviction, when it may be proved by certificate under 14 & 15 Vict. 
 c. 99, s. 13.. 24)1 ; upon an indictment for a subsequent felony, 241, 
 959 ; upon an indictment for an escape, 797 ; upon an indictment for 
 being at large during a sentence of penal servitude, 806 ; upon indict- 
 ment for subsequent offence against the coin, 741 ; for subsequent 
 offence against the Larceny Act, 307 ; in order to affect character of 
 witness, 280. 
 
 Convictions of indictable offences, how proved, 133, 241, 280, 307, 741, 797, 
 806; by magistrates, 243, 307, 311; evidence of, for stealing or de- 
 stroying wills, etc., not to be evidence in civil suits, 355. 
 
 Copies of entries, when admissible in evidence, 263. 
 
 Copper. See " Fixtures." 
 
 Copper coin, to include coin of bronze or mixed metal, 743. 
 
 Copper coin, counterfeiting and uttering counterfeit, 763. 
 
 Coppice, setting fire to, statute, 518; indictment, 520; punishment, 520 ; 
 evidence, 620; attempting to set fire to, statute, 518. 
 
 Copy of indictment, defendant acquitted of misdemeanor entitled to, 177 ; 
 and so, semble, is prisoner acquitted of felony, 177. 
 
 Copy, or exemplification of a record, in what cases evidence, 239, 240. 
 
 Copy of depositions for defendant, 254. 
 
 Corn. See " Crops," " Stacks." 
 
 Coroner, evidence given by prisoner as a witness on inquest may be given 
 in evidence against liim on his trial, 229, 230 ; examinations before, 
 when evidence, 251, 252; cannot hold an inquisition respecting the 
 origin of a fire, 116. 
 
 Coroner's inquisition, 116; as a mode of criminal prosecution. 116; autho- 
 rity and duty of coroner in holding inquests in cases of murder and 
 manslaughter, 116; requisites and form of inquisition in cases of 
 murder and manslaughter, 119; process upon a coroner's inquisition, 
 122 ; bail where the coroner has committed a party to prison, 122. 
 
 Corporate bodies, frauds by directors and officers of, 464. See '' Companies, 
 Public." 
 
 Corporate town, county of, offences in, where tried, 27. 
 
 Corporation, criminal liability of, 7 ; larceny of property of, how described, 
 46 ; and proved, 324. 
 
 Corporation books, entries in, how proved, 261, 263; inspection of, in what 
 cases granted, 261. 
 
 Corporation, frauds by directors, members or public officers of, 464. 
 
 Corpses. See " Dead Bodies." 
 
 Correction, in what cases a justification for a battery, 661 ; killing by, 634; 
 in what cases murder, 634 ; in what cases manslaughter, 634 ; in what 
 cases misadventure only, 634. 
 
 Corrosive fluid, throwing with intent, etc., 672 ; indictment, 674 ; punish- 
 ment, 674; evidence, 674. 
 
 Corruption of blood for treason or felony, abolished, 177. 
 
 Costs upon an information ex officio, 110; upon information filed by master 
 of Crown-office, 114, 115 ; of a prosecution, 291 — 296; of prosecutions 
 for felonies, 291 ; of prosecutions for indictable misdemeanors under 
 Larceny Act, 308 ; for indictable misdemeanors under Malicious In- 
 juries Act, 507 ; under Forgery Act, 559 ; under Offences against the 
 Person Act, 620 ; of prosecutions for certain other indictable misde- 
 meanors, 292, 293 ; of prosecutions for offences against the Coinage 
 Act, 743 ; of certain prosecutions conducted by parish officers, 295, 
 619; on conviction for assault, the court may order payment of prose- 
 cutor's costs by defendant, 620 ; such costs may be levied by distress, 
 620; costs on prosecutions for libel, 856; on prosecutions for misde- 
 meanors against the Bankruptcy Act, 872, 875 ; of indictments preferred 
 under the Vexatious Indictments Acts, where the accused is acquitted, 
 6; of prosecutions for bribery and undue influence, 296; in certain 
 cases the court may allow the expenses of witnesses for the prisoner, 
 296 ; person convicted of treason or felony may be condemned to pay 
 W. U U 
 
986 Index. 
 
 costs of prosecution, 177a! payment of such costs may be 'ordered 
 to be made out of moneys taken from convict on his apprehension, 177a; 
 other means of recovering payment of such costs, 177o. 
 
 Cotton goods, in any stage of manufacture, stealing, statute, 406; indict- 
 ment, 106 ; punishment, 407 ; evidence, 407. 
 
 Cotton goods in the loom, etc., or in any stage, etc., of manufacture, cut. 
 ting, breaking or destroying, or damaging with intent to destroy or 
 render useless, statute, 526 ; indictment, 527 ; punishment, 627 ; evi- 
 dence, 527. Cutting, etc., or damaging, etc., any warp or shute of 
 cotton, statute, 526; indictment, 527; punishment, 527; evidence, 
 527. Entering a house, shop, building, or place by force, with intent 
 to commit the above offences, statute, 526 ; indictment, 528 ; punish- 
 ment, 528 ; evidence, 528. 
 
 Counsel, privileged from giving evidence against his client, in what cases, 
 276. 
 
 Counsel for prisoners, statute allowing a defence by, 254 ; defence by, on 
 trial for larceny, etc., before justices in petty sessions, 310. 
 
 Counsel, to counsel the commission of a felony, itself a felony, 12 ; to 
 counsel the commission of a misdemeanor makes the offender a prin- 
 cipal, 11. 
 
 Counterfeit coin, definition of, 743. See " Coin." 
 
 Counterfeit money. See " Coin." 
 
 Counterfeiting. See " Coin." Counterfeiting the great or privy seal, her 
 Majesty's sign manual, the seals of Scotland, and the great and privy 
 seal of Ireland, statute, 571; indictment, 571 ; punishment, 571 ; evi- 
 dence, 572. 
 
 Counter- plea of clergy abolished, 123. 
 
 Counties, offences on the boundaries of, where tried, 33. 
 
 Counting-house, breaking and entering and committing felony, statute, 397 ; 
 indictment, 398 ; punishment, 399 ; evidence, 399. Committing felony 
 in, and breaking out of, 397. 
 
 Counts, cannot be struck out of an indictment, 73 ; form of commencement 
 of second or subsequent count, 73. 
 
 Counts, joinder of several offences in several, 69—73 ; for stealing and 
 receiving may be joined, 432 ; joinder of two or more offences in same 
 count, 63, 64. 
 
 County, detached parts of, 35. 
 
 County, offences committed on or within 500 yards of boundary of, 33. 
 
 County, offences begun in one and completed in another, 3.3. 
 
 County of a city or town, offences in, where tried, 27. 
 
 County, indictments against, how laid, 44. 
 
 County, goods provided for and at the expense of, how described in an 
 indictment, 44. 
 
 County, building belonging to, setting fire to, statute, 504 ; riotously de- 
 molishing, pulling down or destroying or beginning to do so, statute, 
 523 ; riotously injuring or damaging, statute, 523, 524. 
 
 County court, judgments of, how proved, 247. 
 
 County Voters Registration Act, 1865, falsely signing declaration under, in 
 name of any other person, 615; making false statement in such decla- 
 ration, 615. 
 ^oupon. See " Share Warrant," " Stock Certificate." 
 
 Coursing. See " Deer." 
 
 Court, felony or misdemeanor committed with respect to, how described, 44. 
 
 Court baron, judgment of, how proved, 246. 
 
 Court for Crown Cases Reserved, 181. 
 
 Court rolls of a manor, how proved, 247 ; forgery of, 601. 
 
 Courts of the British colonies, judgments of, how proved, 257. 
 
 Courts, foreign, judgments of, how proved, 257. 
 
 Courts, inferior, judgments of, how proved, 246. 
 
 Courts, superior, judgments of, how proved, 239—243. See " Written 
 Evidence." 
 
Index. 987 
 
 Courts of record, original documents belonging to, or relating to matters 
 pending therein — records, writs, returns, panels, interrogatories, depo- 
 sitions, affidavits, rules, orders, warrants of attorney — stealing, statute, 
 353; indictment, 354 ; punishment, 354 ; evidence, SSt. Taking from 
 their place of deposit, or from the person having the lawful custody of 
 them, indictment, 354; punishment, 354 ; evidence, 354. Obliterat- 
 ing, injuring or destroying them, statute, 353 ; indictment, 355 ; 
 punishment, 355 ; evidence, 355. 
 
 Cow. Sie " Cattle." 
 
 Credit, bankrupt obtaining, under false pretences, 871 i any person obtain- 
 ing credit under false pretences or by any other fraud in incurring any 
 debt or liability, 871. 
 
 Credit of witnesses, in what it consists, and how ascertained, 277. See 
 '* Character," " Witvesses." 
 
 ICreditors, making or causing to be made any gift, delivery or transfer of, or 
 any charge on property, with intent to defraud, 871 ; removal or con- 
 cealment of property by judgment debtor with intent to defraud, 871, 
 872. 
 
 Creek, stealing from vessel, barge, or boat in, 407, 408. 
 
 Criminal Justice Act, 309 — 313; provisions of, extended to embezzlement 
 by clerks or servants, 443, 44i'. See "Larceny." 
 
 Criminal possession in forgery, 555; in coinage ott'ences, 743. 
 
 Criminals, habitual. See *' Habitual Criminals Act" *^ Supervision of the 
 Police.' ' 
 
 Crimination, witness not compellable to criminate himself, 279. 
 
 Crops of hay, grass, corn, grain or pulse, or of any cultivated vegetable 
 produce, setting fire to, statute, 518; indictment, 520; punishment, 
 520; evidence, 520; attempting to set fire to such crops, 518. 
 
 Cross-examination of witnesses, 299 ; on depositions, 281 — 284. See " Exa- 
 mination." 
 
 Crossed cheque, obliterating, adding to, or altering crossing, statute, 580; 
 uttering cheque whereon crossing has been obliterated, etc., statute, 
 580. 
 
 Crow, having in possession by night without lawful excuse, 487, 488, 502. 
 
 Crown Cases Reserved, court for, 181 — 185. 
 
 Crown suits, perjury in, 828. 
 
 Cultivated vegetable produce. See '* Crops," ** Stacks." 
 
 Current coin, interpretation of, 743. 
 
 Curtilage, building within, when to be deemed part of dwelling-house for 
 purposes of Larceny Act, 397 ; breaking and entering a building 
 within, not being part of dwelling-house, and committing felony 
 therein, statute, 404; indictment, 404; punishment, 404; evidence, 
 404; committing felony in and breaking out of such building, 404; 
 breaking and entering such building with intent to commit felony 
 therein, 398. 
 
 Custom-house officers, shooting at, statute, 689; indictment, 690; punish- 
 ment, 690 ; evidence, 690. Maiming or wounding, indictment for, 
 690; punishment, 690; evidence, 691; assaulting or obstructing, 
 statute, 691 ; indictment, 691 ; punishment, 691 ; evidence, 691. 
 
 Customs. See *' Smuggling." 
 
 Customs, forgeries relating to, 603 ; making false declarations in matters 
 relating to, 828. 
 
 Cutting. See *' Wounding." 
 
 D. 
 
 Dam of fish pond, destroying, 544. 
 Dam of mill pond, destroying, 544, 545. 
 
 Damaging goods with intent to destroy or render them useless. See " De- 
 stroying." 
 Dangerous goods, deposit and carriage of, 917. 
 
 U U 2 
 
988 Index. 
 
 Day, how stated in an indictment, 48. 
 
 Dead animals, how described in an indictment, 58; and proved, 315. 
 
 Dead bodies, not the subjects of larceny, 318 ; indictment for taking up, 
 929 ; punishment, 929 ; evidence, 929. Disposing of, for dissection, 
 929 ; leaving unburied, 929. 
 
 Deaf and dumb person, capability of crime of, 17; may be a witness, 270; 
 trial of, 138, 141. 
 
 Death, how proved, 258, 259 ; in what cases presumed in bigamy, 888. 
 
 Death, in what cases sentence of, may be recorded, 171. Cannot now be 
 recorded in cases of murder, 171 ; judgment of death for murder to be 
 executed within prison walls, 616. 
 
 Deaths, forging registers of, 596; making false statements touching, to a 
 registrar, 828. 
 
 Debenture for money or payment of money, stealing, statute, 370; indict, 
 ment, 371; punishment, 371 ; evidence, 371. 
 
 Debenture for payment or return of money, required by statutes relating to 
 the customs or excise, forgery of, 603. Exchequer debentures, forgery 
 of, 572. 
 
 Debt, any person obtaining credit under false pretences or by other fraud 
 in incurring, 871. 
 
 Deceased person, stealing property of, 40. Judge of Court of Probate, pro- 
 perly when laid in, 41. See " Ordinary." 
 
 Deceased witness, depositions of, when receivable in evidence, 249, 253, 
 254. 
 
 Declaration of Title Act, 1862, frauds against, 610. 
 
 Declarations of a dying person, when received in evidence, 221. 
 
 Decree in equity, how proved, 244. 
 
 Deed, acknowledging without authority or excuse, in name of another, 
 614. See " Aclmowledging." 
 
 Deed, its contents, how proved, 264 ; execution of it, how proved, 264. 
 
 Deed, enrolled, how proved, 265. 
 
 Deed for money, or payment of money, stealing, statute, 370; indictment, 
 371; punishment, 371 ; evidence, 371. 
 
 Deed, forgery of, statute, 575; indictment, 576; punishment, 576; evi- 
 dence, 576. 
 
 Deed material to title, concealment of, from mortgagee or purchaser, by 
 mortgagor or vendor, his solicitor or agent, 358, 359. 
 
 Deed or other writing, document of title to real estate, stealing or frau- 
 dulently obliterating, statute, 357 ; indictment, 357 i punishment, 358 ; 
 evidence, 358. 
 
 Deed, obtaining execution of, by false pretences, 469 ; obtaining execution 
 of, by force, etc., 412. 
 
 Deer, coursing, hunting, snaring, or carrying away, or killing or wounding, 
 or attempting to kill or wound, in the inclosed part of any forest, 
 chase, or purlieu, or in any inclosed land where deer shall be usually 
 kept, statute, 386 ; indictment, 386; punishment, 387; evidence, 387. 
 The like in the uninolosed part of any forest, chase, or purlieu, after a 
 previous conviction, statute, 385 ; indictment, 387 ; punishment, 388 ; 
 evidence, 388. Being in possession of, or of any part thereof, 319, 
 386 ; setting snares for, 319, 320, 386 ; destroying any part of a fence 
 where deer are kept, 320, 386. 
 
 Defaced coin not a legal tender, 749 ; person tendering, liable to prose- 
 cution, 749. 
 
 Defacing register of birth, marriage, or death, 596. 
 
 Defects formal, apparent on face of indictment when and how to be objected 
 to, 127 ; amendment of, 127 ; certain formal defects shall not vitiate an 
 indictment, 126 ; how defects in indictment taken advantage of, 63. 
 
 Defence, matter of, how proved, 213. 
 
 Defence. See " Self -Defence." A battery, 661; or even homicide, 623; 
 may be excused in a parent in defence of his child, a husband in de- 
 
Index. 989 
 
 fence of his wife, a servant in defence of his master, or vice versa. 
 Killing in defence of property, etc., 6Zi; in what cases justifiable, 
 634 : in what not, 635. Battery in defence of one's possession, 661. 
 
 Defendant, in what cases acquitted to enable him to give evidence for a co- 
 defendant, 274. 
 
 Defilement of a girl under twenty-one years of age, procuring by false pre- 
 tences the, 707 ; statute, 707, indictment, 707 ; punishment, 708 ; evi- 
 dence, 708. 
 
 Definition of terms, in reference to frauds by agents, bankers or factors, 458. 
 
 Degree, addition of, now unnecessary in indictment, 38. 
 
 Delivery of property, making or causing to be made, with intent to defraud 
 creditors, 871. 
 
 Demanding money, etc., with menaces or by force, with intent to steal the 
 same, statute, 411 ; indictment, 421 ; punishment, 421 ; evidence, 421. 
 
 De medietate linguffi, jury, abolished, 150. 
 
 Demurrer, what objections must be taken by, 126, 127. Form of, to an in- 
 dictment or information, 127 ; joinder, 127. Form of, to a plea in bar, 
 127: joinder, 128. Proceedings upon, 128. Judgment on, 128, 129 ; 
 cannot be reviewed by Court of Criminal Appeal, 129. 
 
 Deposit and carriage of dangerous goods, 917. 
 
 Deposition. See " Courts of Record." Cross-examination on, 281— 284. 
 
 Depositions, when evidence against deponent on criminal trial, 229 — 231, 
 
 Depositions taken before justices on charge of felony or misdemeanor, 249 ; 
 when admissible as evidence on trial, 249 ; if witness dead, 249 ; 
 or so ill as not to be able to travel, 249; what kind of illness 
 sufficient, 249; is pregnancy sufficient? 250; sufficiency of evi- 
 dence of illness a question for the judge, 249 ; it must be proved 
 that deposition taken in presence of justice, 251 ; and in pre- 
 sence of accused, and that he had opportunity of cross-examining 
 witness, 249 ; and deposition must purport to be signed by justice, 249 ; 
 not necessary that justice should sign each deposition, 252. Deposi- 
 tion admissible where witness kept out of the way by defendant, 251 ; 
 but only as against defendant keeping him out of the way, 251 ; not ad- 
 missible merely on ground of witness's absence, 251. What caption re- 
 quisite to depositions to render them admissible, 253. Depositions 
 must have been taken substantially, on a charge of the same offence as 
 that for which the prisoner is being tried, 260 ; prisoner entitled to in- 
 spect at trial gratis, 255 ; may demand copies thereof on payment of 
 small sum, 254; when this demand should be made, 254, 255; prisoner 
 not entitled to demand copy of his own statement to justice, 255 ; cross- 
 examination of witnesses respecting, 281, 282; how prosecutor may 
 refresh memory of witness for crown by his deposition, 282. See 
 " Perpetuation of Testimony.'^ 
 
 Depositions taken before coroners, when admissible in evidence on trial, 
 251; must have been taken in presence of prisoner, 252; must be 
 signed by coroner, 252 ; witness not required to sign, 252 ; giving copy 
 of to prisoner, 256 ; how proved, 252. 
 
 Depositions taken before justices and consular officers under Merchant 
 Shipping Act, 256; under what circumstances and restrictions admis- 
 sible in evidence, 256. 
 
 Depositions in bankruptcy of deceased persons admissible in evidence, 249. 
 
 Depositions in the Admiralty court, how proved, 246 ; in the ecclesiastical 
 court, how proved, 245; in courts of equity, how proved, 244. 
 
 Deputy returning officer at parliamentary elections, or his partner or clerk 
 acting as agent for candidate, 30 & 31 Vict. c. 102, s. 50. 
 
 Descriptive appellation of person in indictment, instead of proper name, 
 sufficient, 47 
 
 Desertion, inducing soldiers to, 783 ; of children, 624, 693. 
 
 Destroying, cutting, or breaking, or damaging with intent to destroy or 
 render useless any silk, woollen, linen, or cotton goods, or any frame- 
 work-knitted piece, stocking, hose, or lace, being in the loom, etc., or 
 
990 Ivdex. 
 
 other process of manufacture, statute, 526 ; indictment, 527 ; punish, 
 ment, 527 ; evidence, 527. Destroying, etc., or damaging, etc., any 
 warp or shute of silk, woollen, linen or cotton, indictment, 527 ; punish- 
 ment, 527 ; evidence, 527. 
 
 Destroying, etc., machinery. See " Machinery." 
 
 Destroying, etc., engines, buildings, etc., belonging to mines. See "Mines." 
 
 Destroying, etc., buildings, etc., riotously. See " Riot." 
 
 Destroying, etc., ships or vessels. See " Ship.*' 
 
 Destroying, etc., works belonging to a navigable river or canal. See "Canal," 
 "Navigable River." 
 
 Destroying, etc., a public bridge. See "Bridge." 
 
 Destroying, etc., turnpike gates, etc. See " Turnpike" 
 
 Destroying, etc., the dams of ponds, etc. See " Fish-pond" "Mill-pond." 
 
 Destroying, etc., hop- binds. See " Hop-binds." 
 
 Destroying, etc., trees, etc. See " Tree." 
 
 Destroying, etc., fruit, plants, etc. See " Fruit," " Roots." 
 
 Destroying, etc., fish. See " Fish." 
 
 Destroying, etc., wills and codicils. See " Will." 
 
 Destroying, etc., works of art in museums, etc., 553. 
 
 Destructive matter, sending, delivery, etc., with intent, etc., 672. 
 
 Detainer, shooting, etc., to prevent lawful, 663. 
 
 Detainer, forcible, statutes, 817 ; indictment for, 850. See " Entry," 
 
 Devise of lands, how proved, 266. 
 
 Dice. See " Gaming." 
 
 Diploma not evidence, 260. 
 
 Directors of corporate bodies and public companies, frauds, etc., by. See 
 *' Companies, Public." 
 
 Discharge of bankrupt, order of, evidence of bankruptcy and of validity of 
 proceeding, 248. 
 
 Discharge of jury, 162, 168, 271. 
 
 Discharge of prisoners, 177. See " Practice." 
 , Disclosure of telegraphic messages by official of post office, 378. 
 
 Disguised, person found by night, with intent to commit a felony, statute, 
 487, 488. 
 
 Disobeying the orders of a magistrate, 834. Indictment against a high 
 constable for disobeying an order of sessions, 834 ; evidence, 835. 
 
 Disorderly houses, 892 ; what sufficient evidence of keeping, 892; indict- 
 ment for keeping not removable by certiorari, 892. See " Bawdy-house," 
 " Gaming-house." 
 
 Dissenters, protestant, disturbing the public worship of, 930. 
 
 Dissenting chapel. See " Church." 
 
 Disturbing public worship, statute, 930. Indictment for disturbing a con- 
 gregation of Baptists during divine service, 930 ; punishment, 931 ; 
 evidence, 932. 
 
 Dividend warrant, forgery of, statute, 589 ; indictment, 590 ; punishment, 
 590 ; evidence, 590. Clerks making or delivering false dividend war- 
 rants, 594. 
 
 Divine worship, place of. See " Church." 
 
 Divisible averments, instances of, what must be proved, 210 — 212. 
 
 Division, building belonging to, setting fire to, statute, 504; riotously de- 
 molishing, pulling down, or destroying, or beginning to do so, statute, 
 523. Riotously injuring or damaging, statute, 523, 524. 
 
 Dock, stealing goods from, statute, 407 ; indictment, 409 ; punishment, 
 409 ; evidence, 409. 
 
 Document of title to goods, meaning of, in Larceny Act, 370. 
 
 Document of title to lands, meaning of, in Larceny Act, 357; not subject 
 of larceny at common law, 316 ; statute relating to larceny of, 357; for 
 any fraudulent purpose destroying, cancelling, obliterating, or conceal- 
 ing the whole or any part of, 367. Indictment for stealing, 357 ; 
 punishment, 358 ; evidence, 358. 
 
 Documents belonging to courts of record. See " Courts of Record." 
 
Index. , 991 
 
 Dogs, stealing, 351 ; taking money to restore stolen, 352 ; knowingly being 
 in possession of stolen, 352 ; indictment for stealing a dog after a pre- 
 vious conviction, 352 ; punishment, 353 ; evidence, 353. Obtaining 
 dog, by false pretences, not an indictable offence, 353. 
 
 Domesday-book, how proved, 258. 
 
 J^raft on a banker. See " Cheque." 
 
 Drain. See " Mine." 
 
 Dredging in the oyster fishery of another, statute, 391; indictment, 393; 
 punishment, 393 ; evidence, 393. Dragging on the ground of such 
 fishery, indictment, 394 i punishment, 394 ; evidence, 394. 
 
 Drilling, illegal, 785. See " Training." 
 
 Driving, furious, doing bodily harm to any person by, statute, 677 ; indict- 
 ment, 677 ; punishment, 677 ; evidence, 677. 
 
 Drown, attempting to, with intent to murder, statute, 651 ; indictment, 652; 
 punishment, 652 ; evidence, 652. 
 
 Drowning, murder by. See " Murder." 
 
 Drowning a mine, statute, 530; indictment, 630; punishment, 530; evi- 
 dence, 531. 
 
 Drug, administering, with intent to commit any indictable offence, 669, 
 
 Druggists. See " Registers." 
 
 Drunkenness no excuse for crimes, 18. 
 
 Duel, killing in, murder, 629 ; all are principals in, 10, 629. 
 
 Dumb and deaf persons. See " Deaf and Dumb Persons." 
 
 Duplicity in indictments, 63 ; how to take advantage of, 64 ; not ground of 
 error or of arrest of judgment, 64 ; how cured, 64. 
 
 Duress no excuse for crime, 22. 
 
 Duress, compelling execution, &c. of valuable securities by, with intent to 
 defraud, statute, 412. 
 
 Dwelling-house, what building to be deemed part of for the purposes of the 
 Larceny Act, 397. 
 
 Dwelling-house, breaking and entering, and committing felony in, statute, 
 397 ; indictment, 398 ; punishment, 399 ; evidence, 399 ; committing 
 felony in and breaking out of, statute, 397 ; breaking and entering 
 with intent to commit felony therein, statute, 398; indictment, 403; 
 punishment, 403 ; evidence, 403 ; breaking, etc., a building within the 
 curtilage and committing felony therein, statute, 404; indictment, 
 404; punishment, 404 ; evidence, 404 ; committing felony in building 
 within the curtilage and breaking out, 404 ; breaking and entering 
 building within the curtilage with intent to commit felony therein, 
 398. Stealing in, some person therein being put in fear, statute, 398 ; 
 indictment, 400; punishment, 401; evidence, 401. Stealing to the 
 value of 61. in, statute, 398 ; indictment, 401 ; punishment, 402 ; 
 evidence, 402. 
 
 Dwelling-house, entering in night with intent to commit felony therein, 
 statute, 487. 
 
 Dwelling-house, what, in burglary, 490—493. Ownership of it, in whom, 
 and how stated, 493, 496. Local situation of, 496. See " Burglary." 
 
 Dwelling-house, setting fire to, statute, 503 ; indictment, 507 ; punishment, 
 508 ; evidence, 508. Setting fire to, some person being therein, statute, 
 503; indictment, 512; punishment, 613 ; evidence, 513. 
 
 Dwelling-house, destroying, etc., by explosion of gunpowder, etc., any 
 person being therein, statute, 620 ; indictment, 521 ; attempt to blow 
 up, 521. 
 
 Dwelling-house, riotously demolishing, or beginning to do so, statute, 623 ; 
 indictment, 524 ; punishment, 524 ; evidence, 524 ; riotously injuring 
 or damaging, statute, 623, 624. 
 
 Dwelling-house, injuries to, by tenants, 525. 
 
 Dying declarations, when received in evidence, 221 — 223. , 
 
992 . Index. 
 
 East Indiabonds or debentures, forging, 603. See " India Stock Certificate." 
 
 Ecclesiastical courts, libel, answer, depositions, and sentence in, how proved, 
 245 ; practice of, how proved, 245. 
 
 Bffectum does not imply a literal copy, 205. 
 
 Election agent, paid, voting at parliamentary election, 30 & 31 Vict. c. 102, 
 s. 11. 
 
 Eleciion, where several offences charged in indictment, 69—72, 303. 
 
 Election petition, false evidence on trial of, 828. 
 
 Elections, municipal. See " Municipal Elections." 
 
 Elections, parliamentary. See "Parliamentary Elections," " Parliament." 
 
 Elector employed as agent, etc., for reward, voting at parliamentary elec- 
 tion, 30 & 31 Vict. c. 102, s. 11. 
 
 Electric telegraph, injuries to, 543 ; attempts, 543. 
 
 Embezzlement by clerks or servants, or persons employed in that capacity, 
 statute, 442 ; three embezzlements may, under certain conditions, be 
 charged in same indictment, 442 ; where the embezzlement is of money 
 or valuable security, not necessary to specify the particular coin, or 
 valuable security, 443 ; pt'oof of any amount sufficient, 443 ; person 
 indicted for embezzlement not to be acquitted because his offence 
 turns out to be larceny, 443 ; and vice versa, 443 ; but on an indict- 
 ment for embezzlement a general verdict of guilty cannot be sus- 
 tained upon evidence of larceny only, 445; person tried for embezzle- 
 ment cannot afterwards be prosecuted for larceny on same facts, 443 ; 
 and vice versa, 443 ; provisions of Criminal Justice Act extended to, 
 443, 444; indictment for, 444; venue, 35; punishment, 445; evi- 
 dence, 446. Who is a servant within the meaning of the statute, 
 446 — 450; commercial traveller is, 448 ; commission agent is not, 448; 
 the money, etc., must have been received by the servant for or in the 
 name or on the account of his master, 450 ; money received by defend- 
 ant from master to pay over to third person not within the act, 450; 
 distinction between larceny and embezzlement, 452 ; this distinction 
 rendered practically immaterial by 24 & 25 Vict. c. 96, s. 72.. 452; 
 not necessary now to prove that defendant received money, etc., by 
 virtue of his employment, 453; what sufficient evidence of act of em- 
 bezzlement, 453 — 455 ; when other acts of embezzlement may be given 
 in evidence besides those charged in indictment, 454, 455. 
 
 Embezzlement by partner or joint owner of partnership or joint pro- 
 perty, 308. 
 
 Embezzlement by officers and servants of the Bank of England, 445 ; by 
 persons in the public service, or in the police, 455 ; of letters by 
 servants in the post-office, 374 ; from Chelsea Hospital, 446 ; from 
 Greenwich Hospital, 446 ; from warehouses, through the misconduct 
 of custom-house officers, 446 ; by officer of local marine board, 446. 
 
 Embezzlement of newspapers, etc., by persons employed in post-office, 
 statute, 375; indictment, 380 ; punishment, 375 ; evidence, 380. 
 
 Embezzlement of post letters, by persons employed in post-office, statute, 
 374; indictment, 380 ; punishment, 380 ; evidence, 380. 
 
 Embezzlement by bankers, merchants, brokers, attorneys, agents or factors 
 statute, 456 ; indictment, 459 ; punishment, 459 ; evidence, 460 ; con. 
 victicn of, not to be evidence in civil suits, 459. 
 
 Embezzlement by bankrupts. See " Bankrupt Laws, Offences against." 
 
 Embezzlement by trustees, statute, 462 ; indictment, 463 ; punishment, 463 
 evidence, 463. 
 
 Embezzlement by directors, officers and members of public companies 
 statutes, 464; indictment against director of public company, for frau- 
 dulently appropriating company's money, 467 ; punishment, 467 ; evi 
 dence, 467 ; indictment against director for publishing false statements, 
 467; punishment, 468 ; evidence, 468. 
 
Index. 993 
 
 Embezzling the Queen's stores. See " Naval Stores," " War Department 
 
 Stores." 
 Embezzling stores used for Greenwich Hospital, 79*. 
 Emission, not necessary to prove, in order to constitute carnal knowledge, 
 
 statute, 704. 
 Endeavour, criminal, not necessary to set out particulars of in indict- 
 ment, 51, 52. 
 Enemy. See " Adhering," " Treason." 
 Engine. See " Machinery." 
 England, Admiralty of. See "Admiralty." Bank of, embezzlement by 
 
 officers of, 445 j forgery of documents, etc., in, purporting to be made 
 
 out of, 556. 
 Enlistment, foreign. See " Foreign Enlistment Acf." 
 Entering a building by force, with intent to destroy or render useless goods 
 
 in the process of manufacture or machinery, statute, 526 ; indictment, 
 
 528; punishment, 528 ; evidence, 528. 
 Entries, copies of, when admissible in evidence, 261, 263. 
 Entry, what, in burglary, 498. 
 Entry, forcible, into a freehold, indictment for, 848 ; punishment, 848 ; 
 
 evidence, 848. Into a leasehold, 850. Indictment for the same at 
 
 common law, 850 ; punishment, 851 ; evidence, 851. 
 Equity, bill, answer, depositions, and decrees in court of, how proved, 
 
 244. 
 Equity, documents belonging to court of, stealing, 353. See " Courts of 
 
 Record." 
 Error, writ of, 186 ; what, and in what cases, 186 ; fiat of attorney-general, 
 
 188 ; forms of fiats, 188 ; prsecipe, 188 ; issuing writ, 189; form of it, 
 
 189 ; form of writ where the error is on indictment at quarter sessions, 
 189i when error is brought in Exchequer Chamber from Queen's 
 Bench, 190; writ of error on outlawry in Queen's Bench, 191 ; return 
 to court when addressed to justices of quarter sessions, 191; if the 
 whole of record be not certified, plaintiff in error may allege a diminu- 
 tion of record, 192 ; form of assignment of general errors in Queen's 
 Bench, 192; joinder in error, 193; form of joinder, 193; concilium, 
 193; paper books, 194; form of, 194; points for argument, 194; bail 
 in error, 195; judgment of affirmance, 195; form of judgment in 
 Queen's Bench, 195 ; judgment of reversal, 196 ; powers of court on 
 reversal of judgment, 197. 
 
 Escape, 795. Indictment against a constable for a negligent escape, 795 ; 
 punishment, 796 ; evidence, 796. Indictment for escaping out of the 
 custody of a constable, 796 ; punishment, 797; evidence, 797. Indict- 
 ment against a gaoler for a voluntary escape, 797 ; punishment, 797 ; 
 evidence, 797. Aiding prisoners to escape, statute, 799. Indictment 
 for conveying files to a prisoner to enable him to escape, 801 ; punish- 
 ment, 801 ; evidence, 802. See " Aiding," '' Breach of Prison." 
 
 Escheat for treason or felony, abolished, 177. 
 
 Estreat of recognizances, 89. See " Recognizances." 
 
 Evidence, 198 — 301. See " Examination," " Witnesses." 
 
 I. What allegations must ie proved, 19S. Time, 198. Place, 199. The 
 
 ofi'ence charged, 201— 213. Matter of defence, etc., 213. Matter 
 not alleged, in what cases, 213 — 218. 
 
 II. The manner of proving the matters put in issue, 219. 
 Generalrules, 219— 223. 
 
 1. Admissions and Confessions, 223 ; in what cases, 223 ; how 
 
 proved, 231 ; efi'ect of, 233. 
 
 2. Presumptions, or circumstantial evidence, 235 — 238. 
 
 3. Written evidence, 239—268. 
 
 — Records, 239 ; public statutes, 239 ; private statutes, 239 ; 
 
 records of the Queen's courts, 239 ; records of inferior 
 
 courts, 240 ; writs, 242 ; judgments of the House of Lords, 
 
 243; convictions before justices of the peace, 243; fines 
 
 U U 5 
 
994 Index. 
 
 and recoveries, 243 ; deeds inrolled, 213 ; letters patent, 
 243. 
 — Matters of quasi Record, 2t3; proceedings in Parliament, 
 243 ; proceedings in courts of equity, 244 ; proceedings in 
 courts of law not being records, 244 ; such as rules, 244 
 judge's orders, 244; affidavits, 244; proceedings in th 
 ecclesiastical courts, 24S ; including probates of wills, 246 
 and letters of administration, 246; proceedings in the court 
 of Admiralty, 246 ; proceedings in inferior courts, 246 
 such as judgments in the county court, or court baron, 246, 
 247 ; the court rolls of a manor, 247 ; proceedings in bank 
 ruptcy, 247 ; informations and depositions before coroners 
 and magistrates, 249 ; proceedings in foreign courts, 257i 
 proof of laws of a foreign country, 257 ; public surveys, 
 inquisitions, etc., 258 ; registers, etc., 258: certificates, etc 
 260 ; ancient terriers, surveys, etc., 261 ; corporation 
 books, and the books of public companies, 261 ; public 
 acts of State, 261. 
 
 — Written mstruments of a private nature, 264 ; deeds, 264 ; 
 wills, 266; other writings not under seal, 266; handwriting, 
 how proved, 266, 
 
 4. Parol evidence, 268—301. 
 
 — In what cases receivable, 268. 
 
 — Incompetency of witnesses, 270 ; from want of discretion, 
 270 ; from want of religion, 270; from infamy, 271 ; from 
 interest, 272 ; from being parties to the suit, 273 ; from 
 relation to the parties, 274. 
 
 — Credit of witnesses, 277. From their knowledge, 277; from 
 their disinterestedness, 278 ; from their integrity, 278 ; from 
 their veracity, 280 ; from their being sworn to speak the 
 truth, 285. 
 
 — The number of witnesses requisite, 287. At common law, 
 287 ; by statute, 287. Upon an indictment for perjury, 
 288. Process against witnesses, 288 ; subpoena, 288 ; sub- 
 poena duces tecum, 289. Habeas corpus ad testificandum, 290, 
 Judge's order to bring up prisoner as witness, 290, 
 
 — Privilege of witnesses from arrest, 290. 
 
 — Penalty for non-attendance of witnesses. 291. 
 
 — Improper interference with witnesses, 291. 
 
 — Witnesses' expenses, 291 ; in felonies, 291 ; in misdemean- 
 ors, 292, 293. 
 — Rewards to witnesses, in what cases, 295. 
 — Examination of witnesses, 296 ; examination, 297 ; cross- 
 examination, 299; re-examination, 301. 
 Evidence must tend directly to the proof or disprodf of the matter in issue, 
 
 213, 214; and the best possible evidence must be produced, 219. 
 Evidence, hearsay, 221. 
 
 Evidence, presumptive, what, 235 ; violent presumptions, 235 ; probable 
 presumptions, 235 ; rash or light presumptions, 235 ; presumptions of 
 law, 237. Cautions to be observed in receiving this evidence, 238. 
 Evidence, secondary, 219, 220, 
 
 Evidence given upon a former trial, how proved, 242. 
 Evidence, conviction for stealing, etc., deeds or wills, not to be evidence in 
 civil suits, 355 ; the like provision with respect to convictions for 
 frauds, by agents, bankers, etc., 459 ; forgery of instruments of, 
 601—603. 
 Evidence offormer conviction, in what case a certificate is, upon an indict- 
 ment for a subsequent felony, 241 ; upon an indictment for returning 
 from transportation, 806 ; in order to discredit witness, 280. 
 Evidence before the grand jury, 76, 77. 
 Evidence, summing up. See " Summing up." 
 
Index. 995 
 
 Ewe. See "Cattle." 
 
 Examination on the voir dire. See " Challenge." 
 
 Examination — See " Witnesses." 
 in chief; 
 
 questions must be pertinent to the matter in issue, 297 ; leading ques- 
 tions not generally allowed, 298 ; exceptions to the general rule, 298 ; 
 for purposes of identification, 298 ; to contradict witness swearing to a 
 certain fact, 298 ; where witness hostile to party calling him, 298 ; 
 where questions merely introductory, 298 ; what are leading questions, 
 
 298 ; objection to leading questions should be taken immediately, 298 ; 
 interposition by opposite counsel where witness asked whether repre- 
 sentation made, in order to ascertain whether such representation be 
 by parol or by writing, 298 ; if in writing, the writing must be pro- 
 duced, 298 ; witness only allowed to speak of facts within his own 
 knowledge, 298 ; except in matters of science, 298 ; witness not al- 
 lowed to read his evidence, 298 ; but may refresh his memory from 
 entry made by himself shortly after occurrence, 298 ; other modes of 
 refreshing memory, 298 ; leader may take witness out of j unior's hands, 
 
 299 i but cannot put question to witness after examination by junior 
 concluded, 299 ; party producing witness cannot impeach his credit by 
 general evidence of bad character, 284?; but may, under certain cir- 
 cumstances, contradict him, 284 j or prove that he has made incon- 
 sistent statement, 284; bow prosecutor may refresh memory of witness 
 for crown by using his depositions, 282. 
 
 cross-examination ; 
 
 when right of attaches, 299 ; hints as to, 300 ; sometimes dangerous, 
 300; leading questions may be asked on, 300; limitation of this 
 general rule, 300; questions must be pertinent to the issue, 300 ; or 
 calculated to elicit witness's title to credit, 300; not usual to cross- 
 examine witnesses to character, 300 ; of witness on letter shown to 
 him by cross-examining counsel, 300 ; on entries in book, 301 ; on 
 paper put in witness's hands by cross-examining counsel, 301 ; of 
 witness as to former statement inconsistent with his evidence at trial, 
 281 ; proof of such statement, 281 ; of witness, as to his conviction of 
 felony or misdemeanor, 280 ; proof of such conviction, 280 ; formerly 
 no cross-examination on writings without their production, 281 ; this 
 rule now altered, 281 ; rule for cross-examining respecting writings 
 laid down by 28 Vict. c. 18, s. 5. .281 ; former rules for cross-examining 
 on depositions in criminal cases, 281, 282 ; these rules appear to be no 
 longer in force, 281. 
 re-examination, 301. 
 
 Examinations before justices, 249. See "Depositions." 
 
 Exception in a statute, when to be stated in pleading, 62 ; how proved, 
 210. 
 
 Exceptions, bill of. See " Bill of Exceptions." 
 
 Exchequer bills, bonds, or debentures, forging or uttering, statutes, 572. 
 
 Excise, making false declarations in matters relating to, 828. 
 
 Excusable homicide, 623 ; not punishable, 623, 656. 
 
 Excuse for crime — threats, duress, or assault to the peril of life, none, 22 ; 
 obedience to existing law sufficient, 22 ; drunkenness, none, 18 ; igno- 
 rance oflaw, none, 24. See " Non compos Mentis." 
 
 Excuse, matter of, may be given in evidence,^nder the general issue, 139. 
 
 Execution of a criminal, in what cases justifiable, 647; of murderer, to take 
 place within prison walls, 616. 
 
 Execution of a deed, how proved, 264. .- 
 
 Ex-officio information. See '' Information.**'- 
 
 Expedition, naval or military, contrary to j)rovisions of Foreign Enlistment 
 Act, 1870.. 737 etsej. 
 
 Expenses of prosecutor, in what cases given to him, 291 et seq. ; may be 
 allowed in certain misdemeanors, 292, 293 ; on removal of trial to 
 Central Criminal Court, 294. See " Costs." 
 
996 Index. 
 
 Expenses of witnesses for the prosecution, 291 ;;on trial for larceny, etc., 
 before justices in petty sessions, 312. See "Costs." 
 
 Expenses of witnesses for the prisoner, when court may order payment of, 
 296. 
 
 Explosive substances, destroying or damaging any dwelling-house by, any 
 person being therein, statute, 520 j indictment, 521 ; punishment, 521 ; 
 evidence, 521. Destroying, etc., any building thereby, with intent to 
 murder, etc., statute, 65*; indictment, 654 ; punishment, 654 ; evi- 
 dence, 654. Attempting to destroy or damage any building, engine, 
 . working tools, fixtures, goods or chattels, by means of, statute, 521 ; 
 indictment, 522; punishment, 522 ; evidence, 523. Manufacturing or 
 having in possession explosive substances for the purpose of commit- 
 ting offences, statutes, 521, 654. Burning, etc., persons by means 
 of, statute, 672; indictment, 673; punishment, 673; evidence, 673. 
 Sending, with intent to burn, etc., statute, 672; indictment, 673; 
 punishment, 673 ; evidence, 673. 
 
 Exporting counterfeit coin, 764. 
 
 Exposing child under age of two years, statute, 693 j indictment, 693 ; 
 punishment, 693 ; evidence, 693. 
 
 Exposure, indecent, 920. 
 
 Exposure of children. See " Children." 
 
 Express malice, 626. See " Murder." 
 
 Expulsion, when to be proved upon an indictment for a forcible entry, 
 849. 
 
 Extorting or gaining money from a man, by accusing or threatening to ac- 
 cuse him of an abominable crime, 411. 
 
 Extortion, indictment against a constable for, 832 ; venue, 832 ; punish- 
 ment, 832; evidence, 832. 
 
 F. 
 
 Fac-simile of instrument forged need not be set out in indictment, 554. 
 
 Factor, frauds by, 456 et seq. 
 
 Factor or agent pledging for his own use the goods of his principal intrusted 
 to him for sale, statute, 457 ; indictment, 461 ; punishment, 461 ; evi- 
 dence, 461. 
 
 Factories, falsely pretending to be inspector or sub-inspector of, 486. 
 
 False imprisonment, 694 — 698. Indictment for an assault and false impri- 
 sonment, 694 ; punishment, 694 ; evidence for the prosecution, 694 ; 
 evidence for the defendant, 695. 
 
 False personation, 610—615. See "Personation." 
 
 False pretences, obtaining goods, etc., by, distinction between this offence 
 and larceny, 339; statute, 468 j indictment, 469; punishment, 470 ; 
 evidence, 480 ; person indicted for false pretences not to be acquitted 
 on proof that he obtained the property in such manner as to amount to 
 larceny, 468, 483 ; not to be afterwards prosecuted for larceny upon 
 same facts, 468 ; not necessary in indictment to allege, or on trial to 
 prove, intent to defraud any particular person, 468; nor to allege in 
 indictment ownership of chattel, etc., obtained, 468, 479 ; obtaining by 
 false pretences money, etc., to be paid over to a third person, 468, 
 469 ; inducing execution, etc., of valuable securities by false pretences, 
 469, 485 ; indictment must set forth the pretences, 470 ; and with suf- 
 ficient certainty, 470 ; what false pretences are within the meaning of 
 the act, 470 — 478 ; must be of a fact as existing, 471,477 ; where there 
 is a contract between the parties, 473 ; false representations as to the 
 quality of goods, 475 ; words not necessary to constitute false pretences, 
 476 ; giving cheque upon a banker with whom drawer has no account, 
 476 ; payment of notes of a bank which has stopped payment, 476 ; of 
 a flash note, 477 ; of a forged note, 477 ; assuming name of person to 
 
Index. 997 
 
 whom money payable, 477 ; assuming by academical dress status of » 
 member of university, 477 ; pretence that a party will do act infuturo, 
 not within the act, 477 ; qualifications of this rule, 478 i false pretence 
 made to A. in B.'s hearing whereby money obtained from B., 478 ; 
 false pretence made through innocent agent, 478 ; indictment must 
 negative the pretences by special averments, 478 ; obtaining loan of 
 chattel by false pretences, not indictable, 479, 480 ; obtaining loan of 
 money by false pretences, indictable, 479, 480 ; venue in certain cases, 
 469, 47y ; goods obtained in one county and broughtinto another, 469 ; 
 evidence, 480-^484 ; pretence must be proved as laid, 480 ; instances 
 and qualifications of this rule, 480 ; not necessary to prove the whole 
 pretence charged, 480; sufficient if actual substantial pretence charged 
 be proved, 480 ; it must be proved that the goods, etc., were obtained 
 by means of the false pretences, 480 ; a railway ticket is a chattel within 
 the act, 481 ; but not a dog, 481 ; where prosecutor parts with his 
 goods, etc., knowing the falsehood of pretence, defendant cannot be 
 convicted, 482; «ecM, where the prosecutor has merely the means of 
 such knowledge, 482 ; continuing false pretence, 482 ; where the false 
 pretences too remote, 482 ; intent to defraud, how proved, 483 ; on 
 trial of indictment for false pretences, other similar false pretences by 
 defendant to other persons cannot be given in evidence, 483; it must 
 be proved that pretences, or some of them, were false in fact, 483 ; 
 attempt to obtain money, etc., by false pretences, indictable, 484 ; pro- 
 visions of Vexatious Indictments Act must be observed before pre- 
 ferring indictment for obtaining goods, etc., by false pretences, 4, 
 470. 
 
 False pretences, obtaining execution of valuable security by, statute, 469 ; 
 indictment, 485 ; punishment, 485 ; evidence, 485. Bankrupts ob- 
 taining goods, etc., under the false pretence of carrying on business on 
 the usual terms, 871 ; any person obtaining credit under false pretences 
 in incurring any debt or liability, 871. Winning money, etc., by cheating 
 at play, to be deemed to be obtaining money, etc., by false pretences, 
 921. See " Gaming," By false pretences procuring any woman, under 
 the age of twenty-one, to have illicit carnal connexion with any man, 
 statute, 707. 
 
 False lights. See " Ship." 
 
 False scales, indictment for selling by, 485 ; punishment, 486 ; evidence, 
 486. 
 
 False signal. See " Ship." 
 
 False weights or measures, selling by, 485. 
 
 Falsely prEtending to be inspector or sub-inspector of factories, 486. 
 
 Falsification of pedigree. See " Pedigree." 
 
 Farm buildings or buildings used in farming land, setting fire to, statute, 
 503, 504 ; indictment, 507 i punishment, 508 ; evidence, 508 ; riotously 
 demolishing, pulling down, or destroying, or beginning to do so, statute, 
 523; indictment, 524; punishment, 524; evidence, 524; riotously in- 
 juring or damaging, statute, 523, 524. 
 
 Farthing. See " Coin." 
 
 Fear, stealing in dwelling-house, and putting any one therein in bodily fear, 
 398. 
 
 Fehnice cepitet asportavit — these words necessary in indictments for larceny, 
 60. 
 
 Feloniously — this word necessary in indictments for felony, 60. 
 
 Felony, punishment of, where no punishment otherwise provided, 173 ; 
 person tried for misdemeanor not to be acquitted because facts proved 
 amount to felony, 164; no new trial in case of, 178; person convicted 
 of, may be condemned to pay costs of prosecution. Ilia ; payment of 
 such costs may be ordered to be made out of monies taken from convict 
 on his apprehension, 177a ; other means of enforcing payment of such 
 costs, 177fl; power of court on conviction for felony to award compen- 
 sation for loss of property sustained by means of the felony, 177o ; 
 
998 Index. 
 
 pecuniary limit of such compensation, 177o; how such compensation 
 is to be recovered, 177o ; attainder, corruption of blood, forfeiture and 
 escheat for felony, abolished, 177 ; effect of conviction for felony on 
 capacity for holding office, etc., and exercising certain civil rights, 
 177. 
 
 Felony, compounding, statute, 835; indictment for, 836; punishment, 837 ; 
 evidence, 837. 
 
 Felony, made punishable like simple larceny, 303 ; larceny after previous 
 conviction for, 804; accessories to felonies. See "Accessory," "Prin- 
 cipal and Accessory ." 
 
 Felony, subsequent, statutes, 959; indictment, 962; punishment, 963; evi- 
 dence, 964. 
 
 Feme covert See " Wife." 
 
 Fences, live or dead, post, pale, or rail, or stile, or gate, stealing, cutting, 
 breaking, or throvring down, 317. See "Fixtures." 
 
 Ferce naturce, animals that are, not the subject of larceny, 319. 
 
 Fern, growing, setting fire to, statute, S18; indictment, 520 ; punishment, 
 520 ; evidence, 520 ; setting fire to stack of, statute, 518 ; attempting to 
 set fire to growing, or to stack of, statute, 518. 
 
 Ferrets, not tlie subject of larceny, 319. 
 
 Flat of attorney-general for writ of error, 188. See "Practice," sect. 15. 
 
 Field, stealing goods in process of manufacture, whilst exposed in any, 
 406. 
 
 Fieri facias, goods seized under, how described in indictment, 42. 
 
 Fight, challenging to, 851. 
 
 Fighting, killing by, 628 ; where murder, 629 ; where manslaughter, 629 ; 
 where homicide se deferuiendo, 630 ; homicide of or by a stranger in 
 course of fight, 631. 
 
 Figures, no part of indictment must be in, 63 ; except where facsimile of 
 written instrument set out, 63. 
 
 Filly. See " Cattle." 
 
 Finding of indictment by grand jury, 75 — 78. 
 
 Finding. See "Goods." Found goods, larceny of, 330. 
 
 Fine, how proved, 243. 
 
 Fine, power of court to impose, in addition to or in lieu of other punish- 
 ments for misdemeanors, under Larceny Act, 307 ; under Malicious 
 Injuries Act, 507 ; under Forgery Act, 658 ; under Coinage Act, 742; 
 under Offences against the Person Act, 619. 
 
 Fire. See "Arson." 
 
 Fire, judge may allow jury use of, 167. 
 
 Fireworks, making and selling, a nuisance, 917. 
 
 Fish, taking or destroying, in any water situate in land adjoining or be- 
 longing to a dwelling-house, statute, 389; indictment, 390 ; punish- 
 ment, 390 J evidence, 390. Taking or destroying in a private fishery 
 or elsewhere, 390 ; taking or destroying by angling, 320, 390. Putting 
 lime or other noxious materials into a fishpond or water to kill fish, 
 statute, 544; indictment, 545; punishment, 545; evidence, 545. 
 
 Fisheries, false evidence before special commissioners for, 828, 
 
 Fishery, right of. See " Fish," "Fishpond," "Oysters." 
 
 Fishpond, or water which is private property, or in which any person has a 
 private right of fishery, breaking or destroying the dam, flood-gate or 
 sluice of, statute, 544; indictment, 545 ; punishment, 545 ; evidence, 
 545. Putting lime or other noxious material into, to destroy fish, 
 statute, 544 ; indictment, 545. 
 
 Fixtures — glass or woodwork belonging to any building, lead, iron, copper, 
 brass or other metal, or any utensil or fixture, whether made of metal 
 or other material fixed to any building — stealing or ripping, cutting, 
 severing or breaking with intent to steal, statute, 368 ; indictment, 
 368 ; punishment, 368 ; evidence, 368. Anything made of metal, 
 fixed in any land, being private property, or for a fence to a dwelling- 
 house, garden, or area, stealing or ripping, etc., indictment, 369 ; 
 
Index. 999 
 
 punishment, 369 ; evidence, 369 ; or fixed in a square, street, or other 
 place dedicated to public use or ornament, or in a burial ground, 
 stealing or ripping, etc., indictment, 370 ; punishment, 370 ; evidence, 
 370. 
 
 Fixtures, larceny of, by tenants or lodgers, 394. 
 
 Fleet books, not evidence of a marriage, 259. 
 
 Jj'loodgates. See "Canal," "Fishpond," " Millpond," "Navigable River," 
 "Pool," ^'Reservoir," 
 
 Fold, setting fire to, statute, 503, 504; riotously demolishing, etc., or be- 
 ginning to do so, statute, 523 ; riotously injuring or damaging, statute, 
 523, 524. 
 
 Forcible abduction. See "Abduction." 
 
 Forcible entry, 847. Indictment for a forcible entry into a freehold, 848 ; 
 punishment, 848 j evidence, 848. Indictment for a forcible entry into 
 a leasehold, etc., 850. Indictment for a forcible detainer, 850 ; evi- 
 dence, 850. Indictment for a forcible entry and detainer at common 
 law, 850 ; evidence, 851. 
 
 Foreign coin, offences relating to, 764, 765. 
 
 Foreign country, laws of, how proved, 257. 
 
 Foreign courts, judgments of, how proved, 257. 
 
 Foreign Enlistment Act, offences against, 735 — 740 ; application of Foreign 
 Enlistment Act, 1870.. 735; enlistment in service of foreign state, 735 
 leaving her Majesty's dominions with intent to serve foreign state, 735 
 embarking persons under false representations as to service, 735 
 taking illegally enlisted persons on board ship, 736 ; illegal ship build- 
 ing and illegal expeditions, 736 j presumption as to evidence in case 
 of illegal ship, 737 ; aiding warlike equipment of foreign ships, 737 i 
 fitting out military or naval expeditions without licence, 737 ; punish- 
 ment of accessories, 738 ; term of imprisonment, 738 ; licence by her 
 Majesty, how granted, 738 ; jurisdiction, 738 ; venue, 738 j power to 
 remove offenders for trial, 738 ; jurisdiction in respect of forfeiture of 
 ships for offences against act, 739 ; regulations as to proceedings against 
 offender and against ship, 739 ; interpretation of terms in Foreign 
 Enlistment Act, 1870.. 739 ; repeal of Foreign Enlistment Act, 59 Geo. 
 3, c. 69.. 740 ; persons entering into military service in Asia, 740. 
 
 Foreigii language, libel, etc., in, how set out, 769 ; how proved, 772. 
 
 Foreigners, trial of offences by, committed on board British ships, on the 
 high seas, 30, 31 j their ignorance of our law no excuse for crime, 24. 
 Jury de medielate Ungues for trial of, abolished, 150. Foreigner killing 
 another foreigner or an Englishman abroad on land not amenable to 
 English law, 29 ; so also if the killing be on a foreign ship on the high 
 seas, 29 ; British subject murdering foreigner in foreign country triable 
 in England, 29 ; foreigner on board British ship on high seas subject to 
 English law, 31. See "Miens." 
 
 Forest. See " Deer." 
 
 Forfeiture for treason or felony, abolished, 177. 
 
 Forged bank-notes, purchasing or receiving, 595. 
 
 Forgery in general, definition of, 561 ; statute, 554 ; form of indictment, 
 559 ; venue, 26, 554, 559 ; punishment, 556, 557. Demanding pro- 
 perty upon forged instruments, 555. Forging, etc., documents in 
 England or Ireland, made payable elsewhere, and vice versa, 556. In- 
 dictment for forging and uttering generally, 559. General evidence of 
 the forgery, 561 — 568: general evidence of uttering, 568. 
 
 Forgery at common law, 599 ; indictment, 599 ; punishment, 699 ; evidence, 
 599. 
 
 Forgery, in other cases, 600 ; as to records, 601 ; as to the revenue, 603 ; 
 as to public offices, 605 ; as to officers in the navy and army, 605 ; as 
 to public trade, 606. 
 
 Forging attestations to powers of attorney, statute, 593 ; indictment, 593 ; 
 punishment, 593 ; evidence, 594. 
 
 Forging and uttering bank-notes, etc., statute, 573. Indictment for forg- 
 
1000 Index. 
 
 ing and uttering a bank-note, 573 ; punishment, 574; evidence, 574-, 
 Indictment for forging a will, 575 i punishment, 575 i evidence, 575. 
 Indictment for forging a bill of exchange, 577; punishment, 578; 
 evidence, 578. Indictment for forging an undertaking, warrant, or 
 order for the payment of money, 581 ; punishment, 581; evidence, 581. 
 
 Forging deeds, bonds, etc., statute, 575. Indictment for forging a bond, 
 576; punishment, 576; evidence, 576. Indictment for forging a re- 
 ceipt, 587; punishment, 587 ; evidence, 587. Indictment for forging a 
 warrant, order, or request for the delivery of goods, etc., 586 ; punish- 
 ment, 586; evidence, 586. 
 
 Forging and uttering Exchequer bills, etc., 572. 
 
 Forging by bank clerks of warrants for more or less than is due, statute, 
 594; indictment, 594; punishment, 595; evidence, 595. 
 
 Forging false entries of stock, etc., statute, 591. Indictment for making 
 false entries of stock, 592 ; punishment, 592 ; evidence, 592. Indict- 
 ment for making a transfer of stock in the name of another, not the 
 owner, 592 ; punishment, 592; evidence, 593. 
 
 Forging stock certificate or coupon issued in pursuance of Part 5 of 
 National Debt Act, 1870.. 595; demanding share of stock or receipt 
 of dividend by virtue of forged certificate or coupon, 595 ; engraving 
 upon any plate any such certificate or coupon, 608 ; forgery of certificate 
 required by Part 6 of the National Debt Act, 1870.. 595. 
 
 Forging the great seal, etc., statute, 571; indictment, 571 ; punishment, 
 571 ; evidence, 572. 
 
 Forging registers of births, marriages, deaths, etc., statute, 596 ; indictment, 
 597 ; punishment, 598; evidence, 598. 
 
 Forging transfers of stock, powers of attorney, etc., statute, 589. Indict- 
 ment for forging and uttering a transfer of stock, 590 ; punishment, 
 590; evidence, 590. Indictment for forging and uttering a power of 
 attorney to sell out stock, 590 ; punishment, 591 ; evidence, 591. 
 
 Forging and uttering wills, statute, 574 ; indictment, 575 ; punishment, 575 ; 
 evidence, 575. 
 
 Forging, instruments of, 607. 
 
 Forging, in the course of proceeding under Declaration of Title Act, 1862, 
 any certificate, etc., relating to land, 610. 
 
 Formi pauperis, defence in, 143. 
 
 Formal defects apparent on face of indictment, when and how to be objected 
 to, 127 ; amendment of, 127. 
 
 Former convictions, proof of, under Coinage Act, 741 ; under Larceny Act, 
 307. See '^Conviction.'* 
 
 Frame. See " Machinery." 
 
 Frames for forging, 607. 
 
 Framework-knitted piece, in the loom, etc., or other process of manufacture, 
 cutting, breaking, or destroying, or damaging with intent to destroy or 
 render useless, statute, 526 ; indictment, 527 ; punishment, 527 ; evi- 
 dence, 527. 
 
 Fraud, bankrupt obtaining credit by means of, 871 ; any person obtaining 
 credit by means of fraud in incurring any debt or liability, 871. 
 
 Frauds by agents, bankers, or factors, 456. 
 
 Frauds by directors and other ofiicers of corporate bodies and public com- 
 panies, 464. See " Companies, Public." 
 
 Fraudulent bankruptcy, 870. See " Bankruptcy.'' 
 
 Friendly societies, property of, how described, 45 ; and proved, 324. 
 
 Fruit or vegetable production growing in a garden, orchard, pleasure- 
 ground, nursery ground, hot-house, green-house, or conservatory, 
 stealing or destroying or damaging, with intent to steal, statute, 366 ; 
 first offence, 366 ; second offence, indictment, 366 ; punishment, 367 ; 
 evidence, 367 ; destroying or damaging with intent to destroy, statute, 
 551 ; second offence, indictment, 552 ; punishment, 552 ; evidence, 552. 
 
 Furious driving, causing bodily harm by, 677 ; statute, 677 ; indictment, 
 677; punishment, 677; evidence, 677. 
 
Index. 1001 
 
 Furnace of steam engine, nuisance by, 890. 
 
 Furnished lodgings, goods in, liow described, 42 ; larceny of goods from, by 
 
 lodger, statute, 394; indictment for, 395 ; evidence, 395. 
 Furze, growing, setting fire to, statute, 518 ; indictment, 520; punishment, 
 
 520 ; evidence, 520 ; setting fire to stack of, statute, 518 ; attempting 
 
 to set fire to growing, or to stack of, statute, 518. 
 
 Game, offences relating to, 922 — 929. What shall be deemed game, statute, 
 923 ; hares, pheasants, partridges, grouse, heath or moor game, black 
 game, bustards, 923. 
 
 Game, taking in the night-time, or entering by night land with instruments 
 for that purpose, statutes, 923 ; third offence, indictment, 924; punish- 
 ment, 925 ; evidence, 925. Three or more entering land in the night 
 to take game, armed, statutes, 925 ; indictment, 926 ; punishment, 927 ; 
 evidence, 927. What shall be deemed night, 923. 
 
 Gamekeeper, power of, to apprehend poachers, 688. 
 
 Gamekeepers, or the owner or occupier of the land, or any person having a 
 right, or reputed right, of free warren or free chase therein, or the lord 
 of the manor, or reputed manor, or any gamekeeper, or servant of the 
 persons herein mentioned, or any person assisting such gamekeeper, or 
 servant, assaulting or offering violence towards, statute, 686 ; indict- 
 ment, 687 ; punishment, 688 ; evidence, 688. 
 
 Gaming, statutes, 921 ; cheating at play deemed to be obtaining money, 
 etc., by false pretences, 921; indictment for winning money at cards 
 by fraud, 921 ; punishment, 922; evidence, 922. 
 
 Gaming-house, statutes, 892; indictment for keeping, 895; punishment, 
 895; evidence, 896. Wife may be indicted jointly with husband 
 for keeping, 23, 896; vrhat sufficient evidence of keeping, 896; what 
 sufficient evidence of being, 892, 893; indictment for keeping, not re- 
 movable by certiorari, 892. 
 
 Gaol, goods and chattels provided for and at the expense of counties, etc., 
 to repair or to be used in or with, how described, 44. 
 
 Garden. See " Fruit," '* Roots," 
 
 Gas, larceny of, 320. 
 
 Gate, stealing, cutting, breaking or throwing down, or being in possession 
 of, 317. 
 
 Gazette, in what cases evidence, 247, 261, 262; how proved, 261. 
 
 Gelding. See" Cattle." 
 
 General issue, 138. Evidence which may be given under it, 139. 
 
 General rule of interpretation for all criminal statutes, 63. 
 
 General traverse, puts the opposite party to prove the fact traversed, 139. 
 
 Gift of property, making or causing to be made, with intent to defraud 
 creditors, 871. 
 
 Girl, under sixteen, abduction of, statute, 700 ; under twenty-one, abduction 
 of, statute, 698 ; by false pretences procuring girl under twenty-one to 
 have illicit carnal connexion with man, statute, 707 ; carnally knowing 
 and abusing girl under ten, statute, 708 ; carnally knowing and abusing 
 girl above ten and under twelve, statute, 708 ; attempt to have carnal 
 knowledge of girl under twelve, statute, 710. 
 
 Glandered horses, public exposure of, indictable, 890. 
 
 Glass. See " Fixtures." 
 
 Glonoine oil, carriage and deposit of, 917; importation or exportation of, 
 918; manufacturing, 919. 
 
 Goods, dangerous, deposit and carriage of, 917. 
 
 Goods, how described in an indictment, 57, 58 ; variance between the state- 
 ment and the evidence, in what cases material, 58, 201, 314. See "Em- 
 bezzlement," *' Larceny." 
 
 Goods and chattels of counties, how described, 44; of workhouses, how 
 
1002 Index. 
 
 described, 41 j of poorhouses, how described, 44; provided for the use 
 of the poor, how described, 44 ; mortgage deeds cannot be described 
 as, 358. 
 
 Goods found, larceny of, 330. 
 
 Gorse, growing, setting fire to, statute, 518; indictment for, 520; punish- 
 ment, 520 ; evidence, 520. Setting fire to stacli of, statute, 518 ; 
 attempting to set fire to growing, or to stack of, statute, 518. 
 
 Grain. See " Crops," " Stacks." 
 
 Granary, setting fire to, statute, 503, 504 ; riotously demolishing, pulling 
 down or destroying, or beginning to do so, statute, 523 ; riotously 
 injuring or damaging, stature, 523, 524. 
 
 Grand jurors, who may be, 77. 
 
 Grand jury, evidence before, 76, 77 ; finding of indictment hy, 75 — 78. 
 
 Grand larceny, and petty larceny, distinction between, abolished, 303 ; all 
 larcenies to be of the nature of, 303. 
 
 Grass. See " Crips." 
 
 Great seal, counterfeiting, 571. 
 
 Green-house. See " Fruit," " Roots." 
 
 Greenwich hospital, embezzlement of stores used for, 794. 
 
 Grievous bodily harm, what constitutes, 666 ; wounding or shooting, or 
 attempting to shoot, with intent to do, statute, 663 ; indictment, 663 ; 
 punishment, 664 ; evidence, 664. Inflicting with orwithout any weapon 
 or instrument, 663 ; upon indictment for, defendant may be convicted 
 of a common assault, 211, 668; administering poison so as to inflict, 
 etc., 670. See " Poison." Setting spring guns, etc., with intent to do, 
 674. 
 
 GroFS negligence of physician or surgeon, where death is occasioned by, 627, 
 628. 
 
 Gross ignorance of unlicensed practitioners, where death is occasioned by, 
 627, 628. 
 
 Grouse. See " Game." 
 
 Guardians and overseers, prosecutions by, 619. 
 
 Guest at an inn, larceny by, 344 ; burglary in the chamber of, how laid, 
 495. 
 
 Guilty knowledge, how proved, 215; in forgery and uttering, 570; in re- 
 ceiving stolen goods, 216, 437 — 439. 
 
 Guineas. See " Coin." 
 
 Gunpowder, destroying, etc., building, with intent to commit murder by 
 explosion of, or other explosive substance, statute, 654; indictment, 
 654 ; punishment, 654 ; evidence, 654. Injuring or attempting to 
 injure by, statute, 672;- indictment, 673; punishment, 673; evidence, 
 673 ; destroying or damaging buildings by explosion of, statute, 520 ; 
 indictment, 521 ; punishment, 521 ; evidence, 521 ; indictment for 
 blowing up a house where life was endangered, 522 ; attempting to 
 blow up buildings, etc. , with, 521 ; manufacturing for the purpose of 
 felonious injuries, 553, 654. Throwing gunpowder into a house with 
 intent to destroy, or damage it, indictment, 522 ; punishment, 522 ; 
 evidence, 523. 
 
 Guns. See " Spring Guns." 
 
 H. 
 
 Habeas corpus ad testificandum, 290. 
 
 Habitual Criminals Act, 1869, provisions of, as to proof of guilty knowledge 
 in case of receivers and persons found in possession of stolen goods, 
 433, 438 ; provisions of, as to sentence of supervision of the police, 
 961. 
 
 Hair goods, cutting, breaking or destroying, etc., while in process of manu- 
 facture, etc., statute, 526 ; cutting, breaking or destroying, etc., any 
 warp or shute of hair, statute, 526 ; entering by fore? into any building 
 with intent to commit any of the above ofi'ences, statute, 526. 
 
Index. 1003 
 
 Halfpenny. See "Coin," 
 
 Hall of university, building belonging to, setting fire to, statute, 504; 
 riotously demolishing, pulling down or destroying, or beginning to do 
 so, statute, 523; riotously injuring or damaging, statute, 623, 524. 
 
 Handwriting, how proved, 266. Comparison of handwriting, in what cases 
 evidence, 267. 
 
 Harbour, setting fire to building belonging to, 504. 
 
 Harbouring felons, 956; harbouring traitors, 956; harbouring misde- 
 meanants, 956. 
 
 Hard labour, sentence of imprisonment with, under Larceny Act, 308; 
 under Malicious Injuries Act, 507; under Forgery Act, 558; under 
 Coinage Act, 742; under Offences against the Person Act, 619; may 
 be inflicted in case of certain specified misdemeanors, 175 ; for of- 
 fences against Post Office Acts, 376. 
 
 Hares, taking or killing in the night-time, in warrens or grounds used for 
 breeding or keeping, statute, 388 ; indictment, 389; punishment, 389; 
 evidence, 389 ; the like in the day-time, 320, 388, 389. 
 
 Haulm. See " Stacks." 
 
 Haven, stealing from vessel, barge, or boat in, 407, 408. 
 
 Hay. See "Crops," "Slack." 
 
 Hearsay evidence, 221 — 223. 
 
 Heath, growing, setting fire to, statute, 518; indictment, 520 ; punishment, 
 520; evidence, 520; setting fire to stack of, statute, 518 ; attempting 
 to set fire to growing, or to stack of, statute, 518. 
 
 Heath fowl. See " Game." 
 
 Hedges, stealing, cutting, breaking or throwing down, or being in posses- 
 sion of any part of, 317. 
 
 Heifer. See " Cattle." 
 
 Hempen yarn, in process of manufacture, stealing, 406. 
 
 High seas, what, within the jurisdiction of the Admiralty, 31, 32, 428 ; 
 venue in indictments for ofiences on, 33. Special venue in, how 
 stated, SO. 
 
 High treason. See " Treason." 
 
 Highway, nuisances to, statutes, 896. Indictment for obstructing, 898 ; 
 punishment, 899 ; evidence, 899. Indictment against a parish for not 
 repairing a highway, 902 ; punishment, 904 ; general issue, 905 ; evi- 
 dence for the prosecution under the general issue, 906 ; evidence for 
 the parish under the general issue, 907 ; plea that others ratione tenurts 
 are bound to repair, 908; replication thereto, 909; evidence to support 
 the plea, 909 ; plea that a particular division of the parish is bound to 
 repair, 910; replication thereto, 911; evidence to support the plea, 
 91 1. Indictment against an individual for not repairing ratione tenuree, 
 912; general issue, 912; evidence, 912. Indictment against a par- 
 ticular district of a parish for not repairing, 914 ; general issue, 914 ; 
 evidence, 914. „ 
 
 Highways in general, statutes, 896 ; levying and application of fines, 897 ; 
 costs, 896, 897 ; presentments of, abolished, 897 ; certiorari, 898 ; com- 
 petency of witnesses, 898. See "Turnpike." 
 
 Highways, materials and tools, etc., provided for, how described, 44. 
 
 Homicide, excusable, 623 ; justifiable, 623. See " Killing." 
 
 Homicide, per infortunium, or by misadventure, 623. 
 
 Homicide, se de/endendo, 623. 
 
 Hop-binds, cutting or destroying, statute, 548 ; indictment, 548 ; punish- 
 ment, 548 ; evidence, 549. 
 Hop-oast, setting fire to, statute, 503 ; indictment, 507 ; punishment, 508; 
 evidence, 508. Riotously demolishing, etc., or beginning so to do, 
 statute, 523 ; indictment, 524 ; punishment, 524 ; evidence, 524 ; riot- 
 ously injuring or damaging, statute, 523, 524. 
 Horse. See " Cattle." 
 
 Horse-stealing, statute, 349 ; indictment, 349 ; punishment, 349 ; evidence, 
 349. 
 
1004 Index. 
 
 Hose in the loom, etc., or other process of manufacture, cutting, breaking, 
 or destroying, or damaging with intent to destroy or render useless, 
 statute, 526; indictment, 527; punishment, 527; evidence, 527. En- 
 tering a house, shop, building, or place, by force, to commit such 
 offence, indictment, 528 ; punishment, 528 ; evidence, 528. 
 
 Hot-house. See "Fruit," "Roots." 
 
 House, setting fire to,, statute, 503 ; indictment, 507 ; punishment, 508 ; 
 evidence, 508. Riotously demolishing, pulling down, or beginning to 
 do so, statute, 523 ; indictment, 524 ; punishment, 52* ; evidence, 524. 
 Riotously injuring or damaging, statute, 523. See " Burglary," " Dwel- 
 ling-house," "Housebreaking." 
 
 House of correction, goods and chattels, provided for and at the expense of 
 counties, etc., to repair, or to be used in or with, how described, 44. 
 
 Housebreaking, statute, 397 ; indictment, 398 ; punishment, 399; evidence, 
 399. See " Dwelling-house." 
 
 Housebreaking, being found by night armed, with intent to break into any 
 dwelling-house or other building, statute, 487; indictment, 501; 
 punishment, 502 ; evidence, 502 ; punishment on conviction of such 
 misdemeanor committed after a previous conviction for felony or such 
 misdemeanor, statute, 488. Breaking out of a dwelling-house in the 
 night, statute, 487 ; indictment, 500; punishment, 501 ; evidence, 501. 
 Entering dwelling-house in the night, with intent to commit felony, 
 statute, 487. Apprehension of offenders, 488. Definition of night, 
 487. Having in possession by night implements of housebreaking, 
 statute, 487, 488 ; indictment, 502 ; evidence, 503. 
 
 Houses, injuries to, by tenant, 525. 
 
 Hovel, setting fire to, statute, 503, 504; riotously demolishing, etc., or 
 beginning to do so, statute, 523; riotously injuring or damaging, 
 statute, 523, 524. 
 
 Hundredors, want of, no ground of challenge, 154. 
 
 Hundreds still liable to repair hundred bridges, 915. 
 
 Hunting. See " Deer." 
 
 Husband, coercion of, in what case it excuses wife, 22 — 24. He cannot be 
 a witness for his wife, 274 ; in what cases he may be a witness against 
 her, 275. He may kill another, 631 ; or commit a battery, 661 ; in 
 defence of his wife. May be accessory after the fact to his wife, 14. 
 See " m/e." 
 
 Idem sonantia, 321. 
 
 Identity, allegations descriptive of, when they cannot be rejected as sur- 
 plusage, 213. 
 
 Idiot, what, 17; incapable of crime, 18, 623. Cannot be a witness, 270. 
 
 Ignorance, what, an excuse for crime, 24. 
 
 Ignoring bill by grand jury, 76; insanity of prisoner no ground for, 22. 
 
 Illegal training, etc., 785. 
 
 Illness of prisoner during trial, 163; of juryman, 168 ; of witness, 169. 
 
 Impeding a person endeavouring to save his life from a ship wrecked, sta- 
 tute, 679; indictment, 680 ; punishment, 680 ; evidence, 680. 
 
 Implement. See" Machinery." 
 
 Implements of housebreaking. See " Housebreaking." 
 
 Implied malice, 237, 508, 621, 622, 626. 
 
 Importing counterfeit coin, statute, 751; indictment, 751; punishment, 
 752; evidence, 752. 
 
 Importing foreign counterfeit coin, statute, 765. 
 
 Imprisonment. See "False Imprisonment." 
 
 Inciting to mutiny, statutes, 783 ; indictment for endeavouring to seduce a 
 soldier from his allegiance, 784 ; punishment, 784 ; evidence, 784. 
 
 Inciting a person to commit an offence, 955, 
 
 Incompetency of witnesses, 270 ; from want of discretion, 270 ; from want 
 
Index. 1005 
 
 of religion, 270 ; from infamy, 271; from interest, 272; from being 
 parties to the suit, 273 ; from relation to the parties, 274. Objection 
 to incompetency, when and how to be made, 299. See " .Competency of 
 Witnesses." 
 
 Incumbrances, concealment of, from purchaser or mortgagee by vendor or 
 mortgagor, his solicitor or agent, 358, 359. 
 
 Indecency, public, 920. 
 
 Indecent assault upon female, statute, 710 ; indictment, 710; punishment, 
 710; evidence, 710. Indecent assault upon male, statute, 717. 
 
 Indecent exposure, 920. 
 
 India bonds or debentures, forging, 603. 
 
 India stock certificate or coupon, forging, 603 ; engraving upon any plate 
 any such stock certificate or coupon, 608; personating owner of share 
 or interest in India stock, 613 ; personating owner of India stock cer- 
 tificate or coupon, 613. 
 
 Indictment, 1 — 107. 
 
 1. What, and in what cases it lies, 1 ; for olTences at common law, 1, 2 ; 
 
 for offences by statute, 2 — 4. In what cases it does not lie, 4 ; 
 in what cases authorization must be obtained before preferring, 4; 
 Vexatious Indictments Act, 4 — 6. 
 
 2. Jgainst whom it lies, 7 ; principals in the first degree, 7 ; principals 
 
 in the second degree, 8 — 11 ; accessories before the fact, 11 — 14 ; 
 accessories after the fact, 11 — 16 ; abettors in misdemeanors, II ; 
 any number of accessories may be joined in indictment, 14; 
 infants, 16 ; persons non compotes mentis, 17 — 22 ; persons in sub- 
 jection to the power of others, 22 — 24 ; persons in ignorance, 24. 
 
 3. The form of it, 2i. The commencement, 24; venue, 25 — 37; cap- 
 
 tion, 37. The statement, 37 — 63; must be certain as to the party 
 indicted, 38 ; must be certain as to the person against whom the 
 offence was committed, 39; must be certain as to time and place, 
 47 ; must be certain as to the facts, circumstances, and intent 
 constituting the offence, 51; not vitiated by ungrammatical lan- 
 guage, 54; it must not be double, 63 ; several acts of larceny may 
 be charged in, 71 ; several acts of embezzlement may be charged 
 in, 64; it must be positive, 64; it must not be repugnant, 65; 
 averments, how made, 65. Conclusion of the indictment, 66 ; for 
 an offence at common law, 66 ; for an offence by statute, 66. 
 
 4. Joinder of two or more defendants in one indictment, 68. 
 
 5. Joinder of several offences, in different counts, in one indictment, 69 — 73. 
 
 6. Within what time an indictment must be preferred, 73, 
 
 7. How found, 75. 
 
 8. In what cases quashed, 90 ; how, 92. 
 
 9. When tried, 93 ; where, 94. 
 
 Indictment for a subsequent felony, after a previous conviction, 962 ; 
 punishment, 963; evidence, 964. 
 
 Indictment, defective allegations in, how objected to, 126, 127 ; how cured, 
 126, 127. 
 
 Indorsement, of a bill of exchange, or of a promissory note, forging, or 
 uttering, 577. 
 
 Inducement, matter of, what certainty required in stating, 55. 
 
 Inducement to confess. See " Confession." 
 
 Industrial societies, property of, how described, 45. 
 
 Infamous crime. Accusing or threatening to accuse a man of an infamous 
 crime, with intent to extort money, statute, 411; indictment, 425; 
 punishment, 425 ; evidence, 425. Sending letter accusing or threat- 
 ening to accuse of, with intent to extort money, etc., 411. See "Abo- 
 minable Crime" ^^ Sodomy." 
 
 Infamy, incompetency of witnesses from, 271. 
 
 Infant, criminal responsibility of, 16, 17, 623, 624,' may be a witness, 270. 
 
 Inferior courts, proceedings in, how proved, 246. 
 
1006 Index. 
 
 Infirmary, goods and chattels provided for and at the expense of counties, 
 etc., to repair, or to be used in or with, how described, 44. 
 
 Information, ex officio, 108. What, and in what cases it lies, 108. Form of 
 it, 108 ; how filed, 109. In what cases quashed, 109. Proceedings 
 upon, 109. 
 
 Information by the master of the Crown-oflice, 110— 115. What, 110. In 
 what cases it lies, 110; against magistrates. 111 ; against ministerial 
 oflScers, lllj in what cases the court generally refuse it, 112. When 
 to be moved for, 112. Affidavit for, 113. Form of it, 114. How filed, 
 
 114. Recognizances to be entered into by prosecutor, 115. Costs, 
 
 115. In what cases quashed, 115. 
 
 Informations and depositions upon oath, hefore magistrates, how proved, 
 
 and in what cases evidence, 249 — 256. How taken, 249. Right to 
 
 copies of, 254. See " Depositions." 
 Injure, administering, etc., poison, with intent to, or annoy, 671. See 
 
 " Poison.'* 
 Injuries to houses, buildings, etc., by tenants, 525. 
 Inn, larceny of goods belonging to, by guest, 344. 
 Inn of court, building belonging to, setting fire to, statute, 504 ; riotously 
 
 demolishing, pulling down, or destroying, or beginning to do so, statute, 
 
 523^ riotously injuring or damaging, statute, 523, 524. 
 Innocence, presumption of, until guilt proved, 238. 
 Innocent agent, crime committed through medium of, 7 ; false pretences 
 
 made through, 478. 
 Innuendo, in what cases necessary, 769. Its eSect, 769. How proved, 
 
 772. 
 Inquisition, 116. See " Coroner's Inquisition." 
 Insanity of prisoner no ground for ignoring bill, 22. Opinion of medical 
 
 .writer on insanity cannot be quoted by counsel, 1 9. See '' Non compos 
 
 mentis." 
 Inscription on a tomb-stone, in what cases evidence, 260. 
 Inspection of corporation and other public books, in what cases granted, 
 
 261. 
 Inspector of factories, falsely pretending to he, 486. 
 Inspector under Regulation of Railways Act, 1868, false statement on 
 
 oath to, 828. 
 Instrument, acknowledging without authority or excuse in name of another, 
 
 614. See " Acknowledging." 
 Instruments of forging, 607. 
 Instruments, using, to procure miscarriage, 711. 
 Intent in burglary, 499. 
 Intent to defraud, in forgery, 567 ; in indictment for false pretences, 468, 
 
 483 ; in off"ences under Malicious Injuries Act, 505. 
 Intent, when it must be stated in indictment, 60 ; must be proved as laid, 
 
 208j how proved, 208; implied from overt acts, 208; sometimes in- 
 ferred as necessary conclusion from act done, 209; collateral facts 
 
 when admissible in proof of, 208 ; several intents, when sufficient to 
 
 prove one, 209; when averment of, divisible, 209. 
 Intercepting telegraphic messages by officials of post-office, 378. 
 Interest, formerly rendered person incompetent as a witness, 272 ; not so 
 
 now, 273. How far it detracts from his credit, 278. See " Competency 
 
 of Witnesses." 
 Interpretation of terms in Larceny Consolidation Act, 302, 357, 370, 458, 
 
 462 ; in coinage offences, 743. 
 Interpretation, general rule of, for all criminal statutes, 63. 
 Interrogatory. See " Courts of Record." 
 Ireland, records of courts in, how proved, 257. 
 Ireland, statutes of, how proved, 239. 
 Iron. See " Fixtures." 
 Isle of Man not part of the realm, 29. 
 
Index. 1007 
 
 Issue, no evidence admissible which does not directly tend to proof or dis- 
 proof of matter in, 213, 214 J exceptions to this rule, 214— 218 ; several 
 offences connected together, 215 ; evidence of collateral facts to prove 
 guilty knowledge, 215 i to prove malice or intent, 217; upon indict- 
 ment for rape, 217 ; evidence of prisoner's character, 218. See " General 
 Issue.' ' 
 
 J. 
 
 Jack, having in possession, by night without lawful excuse, 487, 488, 502. 
 
 Jews, marriage of, how proved, 259 ; statutes affecting, 886. 
 
 Joinder of two or more defendants in one indictment, 68, 69. 
 
 Joinder of several offences in different counts in one indictment, 69 — 73. 
 
 Joinder of two or more offences in one count of the indictment, 63. See 
 " Duplicity." 
 
 Joinder in demurrer. See " Demurrer." 
 
 Joinder in error. See " Error," " Practice." 
 
 Joint owner, larceny or embezzlement by, of joint property, 308, 329. 
 
 Joint-stock bank, property of, liow described, 43 ; wilfully inserting in con- 
 tracts for sale of stock or shares in, false numbers or names, 606. 
 
 Joint-stock company, property of, how described, 42, 46. 
 
 Joint tenant could not, by taking the thing in joint tenancy from his co- 
 tenant, be guilty of larceny at common law, 329 ; unless it charged the 
 co-tenant, 329; but now, by statute, he may be guilty of larceny, 308, 
 329. 
 
 Journals of Parliament, entries in, how proved, 243 ; in what cases evidence, 
 243. 
 
 J udge's order, how proved, 244. 
 
 Judge's signature, does not require proof, 244; nor does signature of judge 
 or registrar of court of bankruptcy, 249. 
 
 Judgment after verdict, 170; arrest of, 170; process before, 170; of death, 
 cannot be recorded in murder, 171 ; form of, 176 ; power of court to 
 alter during same sessions or assizes, 176 ; this power cannot be exer- 
 cised after judgment recorded, 177; court of error empowered to pro- 
 nounce proper judgment after reversal of erroneous judgment, 197 ; or 
 to remit record to court below in order that it may pronounce proper 
 judgment, 197. 
 
 Judgment. See " Record." Judgment of the House of Lords, how proved, 
 243. Judgments of the county courts, court baron, and other inferior 
 courts, how proved, 246. Judgments of courts in the British colonies, 
 how proved, 257. Judgments of foreign courts, how proved, 257. 
 
 Judgment debtor, removal or concealment of property by, with intent to 
 defraud creditors, 871, 872. 
 
 Judgment on plea in abatement, 126. 
 
 Judgment on demurrer, 128, 129. 
 
 Judgment, acknowledging, without authority or excuse in name of another, 
 614. See ** Acknowledging." 
 
 Jurisdiction for trial of accessories, 951 ; for offences within jurisdiction of 
 the Admiralty, 30 ; for offences by foreigners on board British ships 
 on the high seas, 31 ; or by British subjects on board British ships in 
 foreign ports, 32. 
 
 Jurisdiction, plea to, 124; in what cases, 124. Form of it, 124. It must 
 be verified by affidavit, 125 ; objection to, how taken advantage of, 
 124. Form of a replication to it, 125 j cases not within jurisdiction of 
 sessions, 104, 105. 
 
 Jurors, 145; qualifications of, 145; disqualifications, 146; persons exempt 
 from serving as, 146; excuses for attendance of, 147 ; must be sum- 
 moned six days at least before the day on which they are required to 
 attend, 148 ; may be summoned by post, 148 ; unwilling from con- 
 scientious motives to be sworn may take declaration, 158; may, in 
 
1008 Index. 
 
 discretion of judge, be allowed use of fire and refreshment, 167. See 
 
 ** Challenge" " Grand Jurors'* 
 Jury lists, how made out, etc., 147. 
 Jury, special, H9. 
 
 Jury of matrons, in what case, 177i; oaths of matrons, 1776. 
 Jury de medietate lingua abolished, 150. 
 Justice, libels reflecting on the administration of, 838. 
 Justice of peace. See " Magistrates." 
 
 Justices in petty sessions, trial for larceny, embezzlement, etc., before, 309. 
 Justifiable homicide, 623. 
 Justification, matter of, may be given in evidence under the general issue, 
 
 139. 
 Juvenile offenders, confinement of, in reformatory schools, statute, 175. 
 
 K. 
 
 Key, having in possession, by night for purposes of housebreaking, 487, 
 488, 502. 
 
 Killing, what to constitute murder, 623 — 627. Killing by correction, 634 ; 
 where murder, 634; where manslaughter, 634; where misadventure 
 only, 634. Killing in defence of wife, child, servant, etc,, 631. Killing 
 in defence of property, etc., 634 ; in what cases justifiable, 634 ; in what 
 not, 635. Killing in a duel, murder, 629. Killing by fighting, 628 ; 
 where murder, 628 — 631; where manslaughter, 628 — 631; where ho- 
 micide se defendendo, 630. Killing of or by a stranger, interfering, 
 631. Killing officers of justice, 640; where murder, 640 — 646; where 
 manslaughter, 640 — 646. Killing by officers of justice, 646; where 
 justifiable, 646 ; where manslaughter, 646 ; where murder, 646. Killing 
 by poison, 627. Killing upon provocation, 631 ; where murder, 631 — 
 634; where manslaughter, 631 — 634; cannot be excused or justified, 
 631. Killing rioters, in what cases justifiable, 647. Killing without 
 intention, whilst doing another act, 635; where murder, 635 — 640; 
 where manslaughter, 635 — 610; where misadventure, 635 — 640. 
 
 Killing cattle. See " Cattle." 
 
 Killing deer. See " Deer." 
 
 Killing or destroying fish. See " Fish." 
 
 Knowledge. See " Carnal Knowledge." Guilty knowledge how proved, 
 215 — 217; in forgery, 570; in receiving stolen goods, 216, 433, 434, 
 437. 
 
 L. 
 
 Labour, hard. See "Hard Labour," 
 
 Lace in the loom, etc., or in other process of manufacture, cutting, breaking, 
 or destroying, or damaging with intent to destroy or render useless, 
 statute, 526; indictment, 527; punishment, 527; evidence, 527. 
 Lamb. See " Cattle." 
 
 Land, certain frauds on mortgage or sale of. See " Mortgagor," " Seller." 
 Land, or things attached or adhering to it, not the subject of larceny at 
 
 common law, 316. How far altered by statute, 317. 
 Larceny, 302 ; statutes, 302 ; definition of, 325. 
 
 1. Larceny at Common Law. Indictment for simple larceny, 313; venue, 
 33,49; punishment, 313 ; evidence, 314— 346. Definition of, 325; 
 distinction between larceny and false pretences, 339; what de- 
 scription of goods the subject of, 316 ; must be personal goods, 
 316; must be of some value, 320; what description of property 
 not the subject of, 316; things which savour of the realty, 316; 
 choses in action, 317; things not the subjects of property, 318; 
 as corpses, 318; treasure trove, 318; wreck, 318; animals /er« 
 naturie and unreclaimed, 319 ; how goods described in indictment, 
 
Index. 1009 
 
 3H ; coin, 314 ; animals, 315 ; the goods must be the absolute or 
 special property of person named as owner in indictment, 321 ; 
 goods stolen from bailee may be described as property of bailor or 
 bailee, 321 ; master's goods stolen from servant must be described 
 as property of master, 322 ; unless they have never been in master's 
 possession, 322; goods stolen from married woman must be de- 
 scribed as property of husband, 322; goods let with furnished 
 lodging'must be described as property of lodger, 322 j unless they 
 are stolen by the lodger, 322, 323; goods seized under ;!./a. may 
 be described as property of execution debtor, 323 ; property in 
 goods stolen from child, how laid, 323 ; how property laid where 
 the goods are the property of several persons, 323 ; of a corpora- 
 tion, 324; of a joint-stock company incorporated under25 & 26 Vict. 
 c. 89.. 324; of a friendly society, 324; of an industrial and pro- 
 vident society, 324, 325; of overseers, etc., 324; the taking and 
 carrying away must be animofurandi, 325 ; quiere whether it must 
 be also lucri cavsd, 327, 328 ; taking under claim of right, 325 ; 
 taking goods with intention to return them, 325, 326 ; servant 
 taking master's corn to feed master's horses, 327 ; there must be an 
 actuator constructive taking, 328 ; wife cannot commit larceny of 
 her husband's goods, 328 ; a man cannot steal his own goods, 329 ; 
 unless they are in the hands of a bailee, 41, 329 ; taking by joint 
 tenant or tenant in common of the goods, the subject of the joint 
 tenancy, etc., no larceny at common law, 329 ; unless taken out of 
 the possession of bailee, 329 ; but now by statute, partner or joint 
 owner may be convicted of larceny of partnership or joint property, 
 308 ; larceny of lost goods by finder, 330 ; distinction between 
 actual and constructive taking, 331, 332; where by delivery of 
 goods' property as well as possession passed, no subsequent con- 
 version can amount to larceny, 332, 339 ; secus, where the mere 
 possession has been passed and the goods are obtained anima 
 jfurandi, S33 — 339; larceny by trick, 333 — 340; by ring-dropping, 
 335 ; where the possession has been obtained bond fide and there 
 is a subsequent wrongful conversion, 340 — 342; such a case not 
 larceny at common law, unless bulk broken, 340 ; but is now 
 larceny by statute, 340 ; taking husband's goods with wife's con- 
 sent, no larceny, 341 ; exception in the case of taking by avowterer, 
 341, 342 ; where there is delivery of goods by owner yet legal 
 possession remains in him, 342 ; larceny by drovers, servants, etc., 
 342 — 344 ; by person to whom owner gives goods to carry, accom- 
 panying him at the same time, 344 ; by guest at an inn, 344 ; the 
 taking must be invito domino, 345 ; apparent exception to this rule, 
 345 ; (jsportavit, 345, 346 ; the goods must not only be taken but 
 carried away, 345 ; what removal is sufficient to satisfy this rule, 
 345 ; where there is no carrying away, the prisoner may be con- 
 victed of an attempt to steal, 346 ; in what case prisoner cannot be 
 convicted of such an attempt, 346; where larceny committed in 
 another county or in another part of the United Kingdom than 
 that where prisoner indicted, 314; where larceny committed within 
 500 yards of county where prisoner indicted, 314; where larceny 
 committed during journey or voyage, 314; three acts of stealing 
 may, under certain circumstances, be charged in same indictment, 
 315; person indicted for false pretences not to be acquitted, if he 
 obtained the property in such manner as to amount to larceny, 
 468 ; person indicted for larceny not to be acquitted if embezzle- 
 ment proved, 443 ; but a general verdict of guilty cannot be sus- 
 tained upon evidence of embezzlement only, 314; person indicted 
 for larceny cannot afterwards be indicted for embezzlement on 
 same facts, 443. 
 2. Larceny by Statute. Larceny by clerks or servants, 346 ; by per- 
 sons employed in the public service or in the police, 348; trial 
 W. XX 
 
1010 Index. 
 
 for larceny before justices in petty sessions, statute, 309. Stealing 
 horses, cows, sheep, etc., statute, 349 ; indictment, 349 ; punish- 
 ment, 349 i evidence, 349. After previous conviction for felony, 
 statute, 304 ; after conviction for misdemeanor, 304 ; after two 
 summary convictions, 304 ; prosecutor not bound to elect for 
 several takings, 316. Conviction for attempting to commit 
 offence charged, 164. Conviction for felony on indictment for 
 misdemeanor, 164. Indictment for Subsequent ofenoe, 307. In- 
 dictment for killing animals, with intent to steal, etc., 350. 
 Stealing dogs, 351; ihdictment for stealing dog after » previous 
 conviction, 332 ; punishment, 353 ; evidence, 353. Stealing 
 records, etc., 353. See " Courts of Record." Stealing, destroying, 
 concealing, etc. wills, codicils, or other testamentary instruments, 
 statute, 355 ; indictment, 356 ; punishment, 356 ; evidence, 356. 
 Stealing documents of title to real estate, statute, 357 1 indictment, 
 357 ; punishment, 358 j evidence, 358. Stealing ore, etc., 360. 
 See " Mine." Stealingor cutting trees, 361. See "Tree." Steal- 
 ing plants, etc., 366. See " Fruit," " Roots." Stealing lead, iron, 
 etc., iixed to buildings, 368. See " Fixtures." Stealing valuable 
 securities, 370. Meaning of the term " valuable security," in the 
 Larceny Act, 302; stealing any valuable security other than a 
 document of title to lands, statute, 370 ; indictment, 371 ; punish- 
 ment, 371 ; evidence, 371- Stealing or embezzling post letters, 
 statutes, 374 j indictment, 380 ; punishment, 380 ; evidence, 380. 
 Stealing money, etc., out of letters, statute, 374; indictment, 382 ; 
 punishment, 382; evidence, 382. Stealing letters sent by the 
 mail, or by a post-office packet, statute, 374 ; indictment, 382 ; 
 punishment, 382 ; evidence, 383. Stealing votes, newspapers, etc., 
 statute, 375 ; indictment, 380 ; punishment, 375. 
 
 — Stealing deer, 385. See " Deer." Stealing hares or rabbits in 
 warrens, etc., 388. See "Hares." Stealing horses, cattle, etc. 
 See" Cattle." Stealing dogs, 351. See " Dog." Stealing pigeons, 
 320. See "Pigeon." Stealing birds, 319, 320. See "Bird." 
 Stealing fish, 389. See " Fish." Stealing oysters or oyster brood, 
 391. See " Oysters." 
 
 — Stealing from a wreck, 384. 
 
 3. Compound Larceny. Stealing in a dwelling-house, some person 
 therein being put in fear, statute, 398 ; indictment, 400 ; punish- 
 ment, 401 ; evidence, 401. Stealing in a dwelling-house to the 
 value of 51., statute, 398; indictment, 401; punishment, 402; 
 evidence, 402. Larceny in a church or chapel, by breaking into 
 the same, statutes, 395 ; indictment, 395 ; punishment, 396; evi- 
 dence, 396. Indictment for larceny in a church or chapel, and 
 breaking out of the same, 397 ; punishment, 397 ; evidence, 397. 
 Larceny in a house, by breaking into the same, statute, 397 ; 
 indictment, 398 ; punishment, 399; evidence, 399. Stealing from 
 lodgings, statutes, 394; indictment, 395; punishment, 395; evi- 
 dence, 395. Stealing from a building within the curtilage, by 
 breaking into the same, statute, 404; indictment, 404; punish- 
 ment, 404; evidence, 404. Stealing in a school-house, shop, 
 vtarehouse, or counting-house, by breaking into the same, statutes, 
 397; indictment, 400; punishment, 400; evidence, 400. Steal- 
 ing silk, woollen, linen, cotton, alpaca or mohair goods, in any 
 stage of manufacture, in any building, field, etc., statute, 406 ; 
 indictment, 406 ; punishment, 407 ; evidence, 407. Stealing 
 from a ship or vessel in distress, wrecked, stranded, or cast on 
 shore, statute, 384 ; indictment, 385 ; venue, 385 ; evidence, 385. 
 Stealing from a vessel, barge or boat, in any port of entry or dis- 
 charge, or upon any navigable river, canal, etc., statutes, 407 ; 
 indictment, 408; punishment, 408 ; evidence, 408. Indictment 
 for stealing from a dock, wharf, or ^uay, 409 ; punishment, 409 ; 
 
Index. 1011 
 
 evidence, 409. Robbery, statute, 409 ; indictment for robbery 
 with violence, 412 ; punishment, 412 1 evidence, 413 — 418. In- 
 dictment for robbery by a person armed, 418; punishment, 418; 
 evidence, 418. Indictment for robbery, 419; punishment, 419 ; 
 evidence, 419. Indictment for stealing from the person, 419; 
 punishment, 419; evidence, 419. Indictment for an assault vfith 
 intent to rob, 420 ; punishment, 420 ; evidence, 420. 
 
 Larceny by partner or joint owner of partnership or joint property, 308, 329. 
 
 Larceny by tenants or lodgers, 394. 
 
 Larceny by a bailee, 340 ; breaking bulk not now necessary to constitute, 
 303, 340. 
 
 Larceny from a bailee, how stated, 41 ; how proved, 321. 
 
 Larceny by a bailor, in what cases, 322, 329. 
 
 Larceny of the property of a corporation, 46 ; of partners, 42 ; of goods and 
 chattels provided for and at the expense of counties, etc., 44, 324 ; 
 of goods provided for the use of the poor, 44, 324 ; of materials and 
 tools, etc., for the highways, 44, 324 ; of property under turnpike 
 trusts, 44, 324 ; of property under the commissioners of sewers, 
 45, 324 ; of property of friendly societies, 45, 324 ; of clothes, etc., 
 belonging to the hospital at Chelsea, 45, 325. 
 
 Larceny by a joint tenant, or tenant in common of the joint property, in 
 what cases, 308, 329. 
 
 Larceny cannot be committed by a wife of the goods of her husband, 328 ; 
 may be committed by her a^ov/terer jointly with the wife, 341. 
 
 Larceny, grand and petty, distinction between, abolished, 303; all larcenies 
 to be of the same nature and subject to same incidents as grand 
 larceny, 303. 
 
 Larceny, trial for, before justices in petty sessions, statute, 309. 
 
 Laudanum, administering with intent to commit any indictable offence, 669. 
 
 Law list, admissibility of in evidence and its effect, 259. 
 
 Laws of a foreign country, how proved, 257. 
 
 Lead. See " Fixtures, ^^ ** Mine," 
 
 Leading questions, what are, 298 ; not generally allowed on examination 
 in chief) 298 ; exceptions to this rule, 298 ; to identify person already 
 described by witness, '298; where witness is hostile, 298; merely 
 introductory questions, 298 ; to contradict witness who has sworn to a 
 certain fact, 298; leading questions may be asked on cross-examina- 
 tion, 300 ; but even then counsel will not be allowed to put words into 
 witness's mouth, 300. 
 
 Letters, post, property in, how laid in indictments for stealing, 45, 375. 
 
 Letters, post, servants of the post oflBce stealing, embezzling, secreting 
 or destroying, statutes, 374 ; indictment against officer of post office 
 for stealing or embezzling, 380 ; punishment, 380; evidence, 380. 
 
 Letters, post, fraudulently retaining, etc., after delivery, statute, 374 ; in- 
 dictment, 383; punishment, 384 ; evidence, 384. 
 
 Letters, post, stealing, statutes, 374; indictment, 382; punishment, 382 ; 
 evidence, 383 ; stealing money, etc. out of, statute, 374 ; indictment, 
 382 ; punishment, 382 ; evidence, 382. 
 
 Letters, servants of post office opening or delaying, statute, 373 ; indict- 
 ment, 379 ; punishment, 379 ; evidence, 379. 
 
 Letters patent, how proved, 243. 
 
 Letters, threatening. See " Threatening Letter." 
 
 Level. See " Mine." 
 
 Levying war, 725 ; direct, 726 ; or constructive, 726. Indictment for, 725 ; 
 evidence, 726, 
 
 Lewdness, open and notorious, indictment for, 920 ; punishment, 920 ; 
 evidence, 920 ; by false pretences procuring girl under twenty-one to 
 have illicit carnal connexion, 707. See " Defilement." 
 
 Liability, any person obtaining credit under false pretences or by other 
 fraud in incurring, 871. 
 
 Libel, composing or writing merely, not an offence, 768. 
 
 XX2 
 
1012 Index. 
 
 Libel, general rules as to the form of an indictment for, 768. 
 
 Libel, blasphemous, statute, 775; indictment, 776; punishment, 777; evi- 
 dence, 777. 
 
 Libel, seditious, 766 ; indictment, 766 j punishment, 767; evidence for the 
 prosecution, 770 — 772 ; evidence for the defendant, 772. 
 
 Libel reflecting on the administration of justice, indictment for, 838 ; 
 punishment, 839. 
 
 Libel upon an individual, what, 857 ; publishing or threatening to publish 
 with Intent to extort money, 855 ; publishing defamatory libel, knowing 
 it to be false, 855 ; publishing defamatory libel, 855 ; in what case 
 defendant may give evidence of the truth of the matter charged in 
 libel, 855 ; no such evidence to be given unless defendant has pleaded 
 specially, 856; effect of such special plea upon the sentence, 856; 
 evidence may be given to rebut primA facie case of publication by 
 agent, 856; where judgment given for defendant he is entitled to 
 recover costs against prosecutor, 856 ; costs where defendant has 
 pleaded a justification, 856 ; indictment for, 856 ; venue, 35 ; punish- 
 ment, 857 ; evidence, 859. Indictment for threatening to publish 
 libel, etc., with intent to extort money, etc., 861. Indictment for a 
 libel upon an attorney, 862. Indictment for banging a man in effigy, 
 863 ; evidence, 863. 
 
 Libel in the admiralty and ecclesiastical courts, how proved, 245, 246. 
 
 Library, injuring books, works of art, etc. in, 553. 
 
 Licence to marry, forging, 598. 
 
 Life, continuance of, presumption as to, 237, 238, 887. 
 
 Light railway, offences relating to weight of engines or carriages, or speed of 
 trains, 31 & 32 Vict. c. 119, ss. 27, 28. 
 
 Lime, putting it into a pond of water to kill fish, statute, 544; indictment, 
 545 ; punishment, 545 ; evidence, 545. 
 
 Limitations of prosecutions in point of time, 73 — 75. 
 
 Linen goods in any stage of manufacture, stealing, statute, 406 ; indict- 
 ment, 406 ; punishment, 407 ; evidence, 407. Linen goods in the 
 loom, etc., or other process of manufacture, cutting, breaking or de- 
 stroying, or damaging with intent to destroy or render useless, statute, 
 526; indictment, 527; punishment, 527; evidence, 527. Cutting, 
 etc., or damaging, etc., any warp or shute of linen, statute, 526; 
 indictment, 527 ; punishment, 527 ; evidence, 527. Entering a build- 
 ing by force to commit such offences, statute, 526 ; indictment, 528 ; 
 punishment, 528 ; evidence, 528. 
 
 Liquidation by arrangement under Part 6 of Bankruptcy Act, 1869, how 
 proved, 249. 
 
 Loaded arms, what are, within the Offences against the Person Act, 
 651, 653, 654. 
 
 Loan of chattel, obtaining by false pretences, not indictable, 479, 480; of 
 money, obtaining by false pretences, indictable, 479, 480. 
 
 Local description, matter of, must be proved as laid, 200 ; in what cases it 
 must be inserted in body of indictment, 50. 
 
 Local marine board, embezzlement by officer of, 446. 
 
 Local Stamp Act, 1869 ; forgery of stamps used in pursuance of, 604 ; forgery 
 of certificate of justice of peace under, 604; instruments for forging 
 stamps used in pursuance of, 608. 
 
 Lock, 538. See " Malicious Mischief." 
 
 Lodgers, larceny by, 394 ; by third person of goods in possession of, 42, 
 322. See *' Furnished Lodgings." 
 
 London Gazette. See " Gazette." 
 
 Loom used in weaving silk, woollen, linen, or cotton articles, or framework- 
 knitted piece, stockings, hose, or lace, cutting, breaking, or destroying 
 or damaging with intent to destroy or render useless, statute, 526; 
 indictment, 527 ; punishment, 527 ; evidence, 527. Entering a build- 
 ing by force, with intent to commit such offence, indictment for, 528 ; 
 punishment, 528 ; evidence, 528. See " Machinery," 
 
Index. 1013 
 
 Lord high admiral, commissioners for executing office of, proclamations, 
 orders or regulations issued by, how proved, 262. 
 
 Lords, House of. See "Judgment," "Parliament." 
 
 Lost goods, larceny of, 330. 
 
 Lotteries, 917. 
 
 Lucrl causd, must the taking be, to constitute larceny ? 327. 
 
 Lunatic, in what cases incapable of crime, 17 et seq. ; in what cases incom- 
 petent as a witness, 270. 
 
 Lunatics, assaults on, and neglect of, in asylums and by persons having the 
 care and charge of them, 659 ; making untrUe statements respecting, 
 828. 
 
 Lutherans, disturbing public worship of, 932. 
 
 M. 
 
 Machinery — cutting, breaking, or destroying, or damaging with intent to 
 destroy or render useless any loom, frame, machine, engine, rack, 
 tackle, tool, or implement employed in carding, spinning, throwing, 
 weaving, fulling, shearing, or otherwise manufacturing silk, woollen, 
 linen, cotton, hair, mohair or alpaca articles, or framework-knitted 
 piece, stocking, hose, or lace, statute, 526 ; indictment, 527 ; punish- 
 ment, 527 ; evidence, 527. Entering a building by force to commit 
 such offence, statute, 526 ; indictment, 528 ; punishment, 528 ; evi- 
 dence, 528. Cutting, etc., or damaging, etc., any machine or engine, 
 employed in other manufactures, or in agricultural operations, statute, 
 528 J Indictment, 529 i punishment, 529; evidence, 529. Riotously 
 demolishing, pulling down, or destroying, or beginning to do so, sta- 
 tute, 523; indictment, 524; punishment, 524; evidence, 524; riot- 
 ously injuring or damaging, statute, 523, 524. 
 
 Magistrate, assault on, for preserving wreck, 678. 
 
 Magistrate, information against, in what cases granted. 111. Indictment 
 against, for acting in a case where he had no jurisdiction, 833 ; punish- 
 ment, 834; evidence, 834. Certificate of, upon an assault, 134, 135; 
 certificate of, as to a road being in repair, 260 ; not obeying the order of, 
 834. See " Assault." 
 
 Magistrate, indictment for slanderous words to, 839; punishment, 839; 
 evidence, 840. 
 
 Magnetic telegraph, injuries to, 543 ; attempts, 543. 
 
 Mail, stealing letters sent by, 374 ; stopping with intent to rob or search, 
 374, 383. 
 
 " Maim," meaning of, 666. Shooting, wounding, etc., with intent to, sta- 
 tute, 663; indictment, 663 ; punishment, 664; evidence, 664. 
 
 Maiming officers in the army, navy, or revenue, in the exercise of their 
 duty. See " Smuggling." 
 
 Maiming cattle. See " Cattle." 
 
 Malice prepense, express, 626 ; implied, 626 ; must be alleged in an indict- 
 ment for murder, 60. How proved, 217; wrongful act done wilfully 
 may be presumed to have been done maliciously, 237. 
 
 Malice, legal sense of word, 237 ; presumed in cases of murder, from act of 
 killing, until contrary proved, 237 ; presumed from proof of wrongful 
 act done intentionally, 237. 
 
 Malice within the statute 24 & 25 Vict. u. 97, s. 58, immaterial whether it is 
 against the owner of the property or otherwise, statute, 505. 
 
 Maliciously, meaning of the word, 237, 508. 
 
 Malicious injuries to property, 503 — 554. See "Arson," "Malicious Mis- 
 chief." 
 
 Malicious mischief, 520 — 554. Indictment for destroying by explosion 
 part of dwelling-house, some person being therein, 521 ; punishment, 
 521 ; evidence, 521. Indictment for blowing-up a house whereby life 
 was endangered, 522 ; punishment, 522 ; evidence, 522. Indictment 
 for throwing gunpowder into a house with intent to destroy it, 522 ; 
 
1014 Index. 
 
 punishment, 522 ; evidence, 523. Indictment for cutting, etc. goods 
 in the loom, etc., 527; punishment, 527; evidence, 527. Indictment 
 for breaking, etc., warps of silk, etc., or machinery, etc., 527 ; punish- 
 ment, 527 ; evidence, 527. Indictment for entering by force a build- 
 ing, etc., to commit such offences, 528 ; punishment, 528 ; evidence, 
 528. Indictment for destroying machines used in agriculture or 
 manufactures, 529 i punishment, 529; evidence, 529. Indictment for 
 drowning a mine, etc., 530 ; punishment, 530 ; evidence, 531. Indict- 
 ment for pulling down, etc. airways, etc. of mines, 531 ; punishment, 
 531; evidence, 531. Indictment for destroying engines, erections, 
 etc., used in mines, 532 ; punishment, 532 ; evidence, 532. Indict- 
 ment for destroying a ship with intent to defraud the owner, etc., 533 ; 
 punishment, 533 ; evidence, 533. Indictment for damaging a ship 
 with intent to destroy or render it useless, 534 ; punishment, 534' ; 
 evidence, 535. Indictment for exhibiting a false signal to bring a ship 
 into danger, 535 ; punishment, 535 ; evidence, 536. Indictment for 
 doing an act tending to the immediate loss of a ship in distress, 536 ; 
 punishment, 536 ; evidence, 536. Indictment for destroying part of a 
 ship, etc., in distress, etc., 536 ; punishment, 537 ; evidence, 537. In- 
 dictment for cutting away, etc., buoys, etc., 537 ; punishment, 537 ; 
 evidence, 538. Indictment for cutting down river or sea-banks, etc., 
 538; punishment, 538 ; evidence, 539. Indictment for throwing down, 
 etc., locks on rivers, etc., 539; punishment, 639 ; evidence, 539. In- 
 dictment for cutting, etc., piles, etc., in river or sea-banks, etc., 539 ; 
 punishment, 540; evidence, 540. Indictment for opening, or doing 
 injury to flood-gates, etc., with intent to obstruct the navigation of 
 navigable rivers or canals, 540 ; punishment, 540; evidence, 540. In- 
 dictment for pulling down, etc., a bridge, 541 ; punishment, 541; evi- 
 dence, 541. Indictment for injuring a bridge, etc., 541 ; punishment, 
 541; evidence, 541. Indictment for destroying a turnpike-gate, etc., 
 542; punishment, 542; evidence, 542. Indictment for placing wood 
 on rails, with intent, etc., 543 ; punishment, 543 ; evidence, 544. 
 Indictment for breaking down the dam of a fish pond, etc., 545 ; 
 punishment, 545 ; evidence, 545. Indictment for putting lime, etc., 
 into a fish pond, etc., 545 ; punishment, 545 ; evidence, 545. Indict- 
 ment for breaking down a mill-dam, 546 ; punishment, 546 ; evidence, 
 546. Indictment for killing or maiming cattle, 546; punishment, 547; 
 evidence, 547. Indictment for destroying hop-binds, 548 ; punish- 
 ment, 548 ; evidence, 548. Indictment for cutting, etc., trees, etc., in 
 parks, etc., value above \l., 549; punishment, 549; evidence, 549. 
 Indictment for cutting trees, etc., growing elsewhere, value above bl., 
 550 ; punishment, 550 ; evidence, 550. Indictment after two previous 
 convictions for cutting trees wheresoever growing, value Is., 551 ; 
 punishment, 551 ; evidence, 551. Indictment after a previous con- 
 viction for destroying plants, etc., in a garden, etc., 552 ; punishment, 
 552 ; evidence, 552 ; damaging works of art, etc., in museums, statute, 
 553; malicious injuries to property to amount of five pounds, 553. 
 
 Malt-house, setting fire to, statute, 503 ; indictment, 507 ; punishment, 
 508 ; evidence, 508. Riotously demolishing, pulling down, or destroy- 
 ing, or beginning to do so, statute, 523; indictment, 524; punish- 
 ment, 524; evidence, 524; riotously injuring or damaging, statute, 
 523, 524. 
 
 Manager of company, fraudulently converting property, 464; keeping 
 fraudulent accounts, 464 ; destroying books, etc., 464, 465 ; publishing 
 fraudulent statements, 465. 
 
 Manganese, stealing from mine, statute, 360. See '' Mine." 
 
 Manslaughter, 623 ; what, 623 ; involuntary, 623 ; voluntary, 623 ; statute, 
 656; indictment, 656 ; punishment, 657 ; by surgeon, 627 ; according 
 to old authorities there can be no accessories before the fact in, 12; 
 modern doctrine on this subject, 12. See "Murder." 
 
 Man-traps. See " Spring Guns." 
 
Index. 1015 
 
 Manufactory, rioters demolishing building or engines in, 523 ; rioters in- 
 juring, 523 i setting fire to, 503, 504. 
 
 Manufacture, assault in pursuance of unlawful combination, or conspiracy 
 respecting any, statute, 685, 686. 
 
 Manufacture, cutting, breaking, or destroying, or damaging with intent to 
 destroy or render useless any silk, woollen, or cotton goods, or frame- 
 work knitted piece, stocking, hose, or lace, being in the loom, or other 
 process of manufacture, statute, 526'; indictment, 527; punishment, 
 527 ; evidence, 527. Entering a building by force to commit such 
 offence, indictment, 526; punishment, 528; evidence, 528. Setting 
 fire to buildings or erections used for carrying on manufactures, 
 statutes, 503, 504 ; indictment, 507 ; punishment, 508 ; evidence, 508 ; 
 riotously demolishing, etc., such buildings or erections, or beginning 
 to do so, statute, 523 ; riotously injuring or damaging such buildings 
 or erections, statute, 523 ; riotously demolishing, etc., or beginning to 
 do so, machinery employed, etc., in any manufacture, statute, 523 ; 
 riotously injuring or damaging such machinery, statute, 523, 524. 
 
 Map relating to land, stealing, etc., statute, 357. 
 
 Mare, stealing or killing with intent to steal, statute, 349 ; maliciously 
 killing, maiming or wounding, statute, 546. See " Cattle.^' 
 
 Marine board. See '^ Local Marine Board." 
 
 Marriage of wife, indicted jointly with husband, when she need not prove 
 it, 23 ; what evidence sufficient where proof necessary, 24. 
 
 Marriage, how proved, 24, 258 ; how proved in cases of bigamy, 883 ; 
 making false oaths or declarations for the purpose of, 828 ; making false 
 statements touching, to a registrar, 828. 
 
 Marriage, register of, forging or making any false entry in, statute, 596 ; 
 indictment, 597 ; punishment, 598 ; evidence, 598 ; licences or certi- 
 ficates of, forging or uttering, 598. 
 
 Marriage of Jews, how proved, 259 ; statutes affecting, 886. 
 
 Married vroman may be a bailee within 24 & 25 Vict. c. 96, s. 3. .341. See 
 " Wife." 
 
 Marsh, bank or wall of, breaking or cutting down, whereby lands are over- 
 flowed or damaged, statute, 538; indictment, 538; punishment, 538; 
 evidence, 539 ; removing piles, etc. from, statute, 539. 
 
 Master of a ship. See " Seaman." 
 
 Master may justify a battery, 661 ; or even killing, 631 — in defence of his 
 servant ; starving or ill-treating apprentice or servant, statute, 691. 
 
 Matrons, jury of, 177. 
 
 Mayhem, what is, Q6Q. 
 
 Medical evidence upon questions of insanity, 19. 
 
 Medical men, homicide by, 627; when indictable for manslaughter, 627, 
 628. 
 
 Medical register, admissibility of in evidence and its effect, 259. 
 
 Meeting-house. See " Church." 
 
 Menaces, demanding money, etc. with, with intent to steal the same, statute, 
 411; indictment, 421 ; punishment, 421 : evidence, 421. Stealing in 
 a dwelling-house and putting any one in bodily fear with, statute, 398. 
 Sending a letter demanding money with, statute, 410 ; indictment, 422 ; 
 punishment, 423 ; evidence, 423 ; immaterial whether menaces be of 
 injury, etc., to be caused by the offender or by any other person, 412. 
 See " Threatening Letter," ** Threats." 
 
 Merchant, applying to his own use money, or securities for money, intrusted 
 to him for a specific purpose, statute, 456 ; indictment, 459 ; punish- 
 ment, 4.59; evidence, 460. Converting to his own use any chattel, 
 money, or valuable security, or power of attorney, to sell or transfer 
 shares in public funds intrusted to him for safe keeping, or for a specific 
 purpose, indictment for, 460; punishment, 461; evidence, 461. 
 
 Merchant Shipping Act, depositions taken by justices and consular officers 
 under, 256. 
 
 Message intrusted to postmaster-general for transmission, official of post- 
 
1016 Index. 
 
 office disclosing or intercepting, 378 ; iiow employment of offender 
 under post-office to be alleged, 378. 
 
 Message, telegraphic. See " Telegraphic Message." 
 
 Metal, fixed to any building, etc., stealing, statute, 368 ; stealing metal from 
 mines, statute, 360. See "Fixtures," Mine." 
 
 Metropolitan consolidated stock to be deemed to be capital stock of a body 
 corporate vpithin 21 & 25 Vict. c. 98 (the Forgery Act), 590; making 
 false entry in transfer books of, 592 ; altering word or figure in transfer 
 books of, 592 ; falsifying transfer books of, 592 ; making transfer of, in 
 name of person who is not true owner, 592 ; clerk, etc. of metropolitan 
 board of works, etc., making out, etc., stock certificates, etc., for a 
 greater or less amount than the person on whose behalf such certificate, 
 etc., is made out is entitled to, 594. 
 
 Military expeditions contrary to provisions of Foreign Enlistment Act, 1870, 
 737 et seq. 
 
 Military stores. See " War Department Stores." 
 
 Mill, setting fire to, statute, 503 j indictment, 507 ; punishment, 508 ; evi- 
 dence, 508. Riotously demolishing or pulling down, or destroying, or 
 beginning to do so, statute, 523 ; indictment, 521 ; punishment, 621 j 
 evidence, 524. Riotously injuring or damaging, statute, 523, 524. 
 
 Mill-pond, dam or flood-gate of, breaking down or destroying, statute, 544; 
 indictment, 546 ; punishment, 546 ; evidence, 546. 
 
 Mine, stealing or severing with intent to steal, the ore of any metal, lapis 
 calaminaris, manganese, mundick, wad, black cawke, black lead, coal 
 or cannel coal from mines, beds or veins thereof, statute, 360 ; indict" 
 ment, 360 ; punishment, 360 ; evidence, 360. Setting fire to mines of 
 coal, cannel coal, etc., statute, 513 ; indictment, 514; punishment, 514; 
 evidence, 514. Attempting to set fire to such mines, statute, 513. 
 Conveying water into a mine with intent to damage it, statute, 530; 
 indictment, 530; punishment, 530; evidence, 531. Pulling down, 
 filling up, or obstructing airways, waterways, drains, pits, levels, or 
 shafts, belonging to mines, statute, 530 ; indictment, 531 ; punishment, 
 531 ; evidence, 531. Pulling down or destroying or damaging with 
 intent to render useless any steam engine, or other engine for sinking, 
 draining, or working mines, or any staith, building, or erection, used 
 in conducting the business of a mine, or any bridge, waggon-way, or 
 trunk for conveyinff minerals from a mine, statute, 531 ; indictment, 
 532 ; punishment, 532 ; evidence, 532. Doing so, or beginning to do 
 so, riotously, statute, 523; indictment, 524; punishment, 524; evi- 
 dence, 524. Riotously injuring or damaging such steam-engine, etc., 
 statute, 523, 524. 
 
 Minister, dissenting, assaulting, obstructing, etc., statute, 677. 
 
 Ministerial officers, informations against, in what cases granted, 111. 
 
 Misadventure, homicide by, 623, 635, 636; not punishable, 623, 656. 
 
 Miscarriage, attempting to procure, statute, 711 ; supplying or procuring 
 drugs or instruments in order to procure, statute, 711. See "Abortion." 
 
 Mischief, 520. See " Malicious Mischief." 
 
 Misconductof officers of justice, 832; punishment, 833. Indictment against 
 a constable for not conveying an offender to prison, 832; evidence, 833. 
 Indictment against a magistrate for committing in a case where he had 
 no jurisdiction, 833 ; punishment, 834 ; evidence, 884. 
 
 Misdemeanor, abettors in, punishable as principals, 11; no accessories in, 
 12, 15 ; person counselling or procuring commission of, to be dealt with 
 as a principal, 11; no penalty at common law for harbouring person 
 guilty of, 956. Criminal liability of infant for, 17; no acquittal on trial 
 for, because evidence proves a felony, 164. Indictment for, may con- 
 tain several counts for different offences, 72 ; peremptory challenge of 
 jurors not allowed on trial for, 152, 153. Punishment for larceny after 
 previous conviction for misdemeanor, 304. Costs of prosecution for, 
 under Larceny Act, 308 ; under Malicious Injuries Act, 507 ; under 
 Forgery Act, 559 j under Offences against the Person Act, 620. Costs 
 
Index. 1017 
 
 of prosecution for other misdemeanors, 292, 293. Charge of, may be 
 tried in absence of defendant if he has pleaded, 143 ; important cases 
 of, may be tried by special jury, 148 ; bill of exceptions not allowed 
 on trial of, 162; nomen collectivum, 176; form of judgment in, 176 ; 
 defendant acquitted of, entitled to copy of indictment, 177 ; on trial of, 
 defendant may yield himself to Queen's mercy without direct confes- 
 sioh, 223. Power of court to impose fine and require sureties in addi- 
 tion to or in lieu of other punishments under Larceny Act, 307; under 
 Malicious Injuries Act, 507; under Forgery Act, 558; under Coinage 
 Act, 742; under Ofl'ences against the Person Act, 619. Punishment of 
 common law misdemeanors, 174. Compounding misdemeanor, 837. 
 Conviction of misdemeanor of unlawful wounding on indictment for 
 felony, statute, 648. Conviction of misdemeanor of administering 
 poison with intent to injure on indictment for feloniously administering 
 poison, so as to endanger life, statute, 671. 
 
 Misjoinder of counts, how taken advantage of, 69, 70. 
 
 Misjoinder of defendants, how taken advantage of, 68. 
 
 Misnomer, plea in abatement for, 125 ; now useless, 125 ; affidavit to verify 
 it, 125. Judgment, 126. Amendment of misnomer at the trial, 125. 
 
 Mock auction, larceny by extortion of money from person present at, by 
 frightening him, 339, 340, 415 ; conspiracy to defraud by means of, 938. 
 
 Mohair goods in process of manufacture, stealing, 406; cutting, breaking 
 or destroying, etc., while in process of manufacture, etc., statute, 526 ; 
 cutting, breaking or destroying, etc., any warp or shute of mohair, 
 statute, 526. Entering by force into any building to commit the above 
 offences, statute, 526. 
 
 Money. See " Coin," " Embezzlement." How described in an indictment, 
 59 ; obtaining loan of, by fase pretences, indictable, 479, 480. 
 
 Monuments exposed to public view, destroying or damaging, 553. 
 
 Moor-game. See " Game." 
 
 Moravian, 286. See "Affirmation." 
 
 Mortgage deeds not to be described in an indictment as goods or chattels, 358. 
 
 Mortgagor of land or chattels or choses in action, or his solicitor or agent, 
 concealing instrument of title or incumbrances from mortgagee, or 
 falsifying pedigree, 358, 359 ; prosecution for such offence not to be 
 commenced without sanction of attorney or solicitor-general, 359 ; such 
 sanction not to be given without previous notice to person intended to 
 be prosecuted, 359. 
 
 Mundick, stealing from mine, statute, 360. iSee " Mine." 
 
 Municipal elections, giving false answers at, 828; bribery at, 831 ; perso- 
 nation of voters at, 615. 
 
 Murder, attempts to, 648 — 656. Administering poison, wounding, etc., 
 with intent to murder, statute, 648; indictment, 648; punishment, 
 649 ; evidence, 649 ; the defendant may be convicted of misdemeanor 
 on trial for felony, statute, 648. Indictment for wounding with intent 
 to murder, 650 ; punishment, 650 ; evidence, 650- Attempting to 
 poison, shoot, drown, etc., with intent to murder, statute, 651. Indict- 
 ment for attempting to poison, with intent, etc., 651 ; punishment, 
 651; evidence, 651. Indictment for attempting to drown, with intent, 
 etc., 652; punishment, 652; evidence, 652. Indictment for shooting 
 with intent, etc., 652. Indictment for attempting to shoot with intent, 
 etc., 653 ; punishment, 653 ; evidence, 653. Attempting to murder by 
 damaging building by the explosion of gunpowder, etc., statute, 654 ; 
 indictment, 654; punishment, 654 ; evidence, 654. Destroying, etc. 
 ships with intent to commit murder, statute, 655. Other attempts to 
 murder, 655. 
 
 Murder, statute, 616 ; sentence of death must be passed, 616 ; execution of 
 murderer to take place within prison walls, 616 ; body of murderer to be 
 buried in gaol, 616 ; form of indictment, 617 ; not necessary to set forth 
 manner or means of death, 617 ; petit treason to be treated as murder, 
 617; murder abroad by a subject of the Queen, 617; trial of, where 
 xx5 
 
1018 Index. 
 
 cause of death on sea and death on land and vice versa, 617; murder 
 committed by person subject to the Mutiny Act may be tried at Central 
 Criminal Court, 618j where cause of death in one county and death in 
 another county, prisoner may be indicted in either, 33; indictment, 
 620; punishment, 620; evidence, 621; definition of murder, 623; 
 every homicide presumed to be, until contrary appears, 621; what 
 homicides are not, 623 ; not necessary for prosecutor to prove' malice, 
 621 ; prisoner ought not to be convicted of, on circumstantial evidence, 
 unless body found, 621 ; nor unless deceased died within a year and a 
 day after injury received, 622; as to form of indictment for, 622; must 
 be committed by person of sound memory and discretion, 623 ; lunatic 
 may be guilty of, 623; the killing must be unlawful, 624; instances of 
 this rule, 624, 625 ; the person killed must be a reasonable creature in 
 being and under the king's peace, 625; killing child in mother's 
 womb, 625; killing of foreigners, 626; killing must be committed 
 with malice aforethouglit, 626; such malice is either express, 626; or 
 implied, 626 ; undesignedly killing a man intending to commit another 
 felony, 626 ; death of one person in consequence of himself and another 
 agreeing to commit suicide, 626 ; killing by poison, 627 ; killing by 
 fighting when murder, 628 — 631 ; killing in a duel, 629; killing in a 
 sudden quarrel, 628—631; killing in self-defence, 630, 631; killing 
 upon provocation, 631 — 634; what provocation suf&cient to reduce 
 killing to manslaughter, 631—634; husband killing adulterer, 632; 
 where provocation given by blows and insulting language, 633 ; killing 
 by correction, when murder, 634; when manslaughter, 634; when 
 excusable, 634; killing in defence of property, when justifiable, 634; 
 when murder, 635 ; when manslaughter, 635; killing without intention 
 whilst doing another act, 635 — 640 ; shooting at another's poultry 
 with intent to steal them and by accident killing a man, murder, 635, 
 636 ; if without such intent, manslaughter, 636 ; killing officers of 
 justice, when murder, 640 — 646; when manslaughter, 640 — 646 ; killing 
 by officers of justice, 646, 647. Conspiracy, solicitation, etc., to murder, 
 statute, 647; indictment, 647; punishment, 647; evidence, 648. See 
 "Homicide," "Killing," "Manslaughter," " Murder, Attempts to." 
 
 Murdravit, necessary in indictments for murder, 59. 
 
 Museums, etc., destroying or damaging works of art in, statute, 553. 
 
 Mussels, larceny of, from mussel bed within limits of several mussel fishery 
 granted by order of Board of Trade, 392 ; larceny of, when removed from 
 such bed, 392; statement and proof of ownership of, where stolen from 
 one of two or more contiguous beds belonging to difierent proprietors, 
 392; proof that mussel fishery has been duly marked out, etc., 391 ; 
 venue, 392. 
 
 Mute, standing, of malice, proceedings upon, 138, 141. 
 
 Mutiny, inciting to, statutes, 783 ; indictment, 784 ; punishment, 784 ; 
 evidence, 784. 
 
 Mutiny Act, trial of homicides by persons subject to, at Central Criminal 
 Court, 28, 618. 
 
 Mystery, addition of, statement of, now unnecessary, 38, 
 
 N. 
 
 Name of the defendant, how stated, 38 ; christian name, 38 ; surname, 38. 
 See "Misnomer." 
 
 Name of the party injured, how stated, 39 — 47; no addition necessary, 39; 
 variance between the statement and the proof of it, 202, 206. 
 
 NavaUexpeditions contrary to provisions of Foreign Enlistment Act, 1870, 
 737 et seq. 
 
 Naval stores, obliterating marks on, statute, 787; indictment, 789; evi- 
 dence, 789. 
 
 Navigable river, lock, sluice, floodgate, or other work on, throwing down, 
 levelling, or destroying, statute, 538 ; indictment, 539 ; punishment. 
 
Index. 1019 
 
 539 ; evidence, 539 ; breaking or cutting down the bank or wall of, in- 
 dictment, 538 ; punishment, 538 i evidence, 539. Cutting up, drawing 
 up, removing piles, chalk, etc., for securing the bank or wall of a navi- 
 gable river, with intent to obstruct the navigation thereof, indictment, 
 539; punishment, 540; evidence, 540, Opening floodgates, or doing 
 other injury to a navigable river, with the like intent, indictment, 540; 
 punishment, 540 ; evidence, 540. 
 
 Navigable river, stealing from vessel, barge, or boat on, statutes, 407 ; in- 
 dictment, 408 ; punishment, 408 ; evidence, 408. 
 
 Navigation of public river, obstructing, 900. 
 
 Navy. See " Ship." 
 
 Negative averments in indictment, proof of, 210. 
 
 Neglect, wilful, endangering safety of railway passengers, statute, 676 ; 
 wilful neglect of drivers of carriages causing bodily harm, statute, 677. 
 
 Negligence, gross, where death occasioned by gross negligence of physician 
 or surgeon, 627, 628. 
 
 Newspapers, proof of publication, etc., of, in cases of libel, 771. 
 
 Newspapers, stealing and embezzling, statute, 375; indictment, 380. 
 
 New trial, 178. See " Practice," sect. 13. 
 
 Night, what, in burglary, and for the purposes of the Larceny Act, 24 & 25 
 Vict. c. 96. .487 ; person being found by, and suspected of felony, may 
 be apprehended by peace officer without warrant, 306,488,505,618. 
 See " Housebreaking." What, in offences relating to game, 923. 
 Entering dwelling-house in, with intent to commit felony therein, 
 statute, 487 ; being found by night armed, with intent to break or 
 enter building and to commit felony therein, statute, 487 ; being found 
 by night in possession of housebreaking implements, statute, 487, 488 : 
 being found by night having face blackened or otherwise disguised, 
 with intent to commit felony, statute, 487, 488 : being found by night 
 in building, with intent to commit felony therein, statute, 488 ; power 
 of constable to apprehend without warrant during the night person 
 loitering and suspected of felony against the Larceny Act, statute, 
 488 ; against Malicious Injuries Act, 505 ; against Offences against 
 the Person Act, 618. Any person empowered to apprehend any person 
 found committing any indictable offence in the night, statute, 488. 
 
 Night poaching. See " Game." 
 
 Nisi Prius record, when evidence in perjury, 824. 
 
 Nitro-glycerine, deposit and carriage of, 917; importation or exportation of, 
 918 ; manufacturing, 919. 
 
 Nolle prosequi, 105. See "Practice," sect. 8. 
 
 Non compos mentis, \1 — 22; kinds of, 17. Dementia naturalis, 17 ; Dementia 
 accidentalis, 17; Dementia affectata, 18; what excuses crimes, 17 — 22. 
 Proceedings upon the trial of persons non compotes, 19, 21, 141, 142. 
 Custodyof, 21. 
 
 Not guilty, plea of, 138, 139; effect of, 138, 139 ; court may order it to be 
 entered when defendant refuses to plead, 138. 
 
 Note for money or payment of money, stealing, statute, 370 ; indict- 
 ment, 371 ; punishment, 371 ; evidence, 371. See " Embezzlement," 
 " Forgery." 
 
 Notice to be given to person indicted for receiving stolen goods of intention 
 to adduce evidence of his previous conviction, 434, 438. 
 
 Notice to produce, in what cases necessary, 219, 220. 
 
 Noxious thing, administering, etc., so as to endanger life, or to inflict 
 grievous bodily harm, statute, 670 ; administering, etc., with intent to 
 injure, etc., statute, 671 ; administering, etc., with intent to procure 
 miscarriage, statute, 711 ; supplying, etc., knowing that it is intended 
 to be used to procure miscarriage, statute, 711. 
 
 Nuisance, 889 — 917. Indictment for carrying on an offensive trade, 889; 
 punishment, 890; evidence, 891. Keeping a common bawdy-house, 
 statute, 892 ; indictment, 894 ; punishment, 894 ; evidence, 894. 
 Keeping a common gaming-house, statutes, 892 ; indictment, 895 ; 
 
1020 Index. 
 
 punishment, 895 ; evidence, 896. Nuisances to highways, statutes, 
 896; obstructing a common highway, indictment, 898; punishment, 
 899 ; evidence, 899. Obstructing the navigation of a puhlic river, 
 indictment, 900; punishment, 901 ; evidence, 901. Indictment 
 against a parish for not repairing a highway, 902. Indictment for not 
 repairing a bridge, 915. See "Bridge," "Highway." Other cases of 
 indictable nuisances, 917. 
 
 Nuisance, venue in indictment for, 35. 
 
 Number «f witnesses requisite, 287; in treason, 287; in perjury, 288; 
 in other cases, 288. 
 
 Nursery ground, stealing plants, etc., from, statute, 366 ; destroying plants 
 in, statute, 551. See " Fruit," " Roots." 
 
 O. 
 
 Oath, juror unwilling from conscientious motives to take, may make de- 
 claration, 158. 
 
 Oath of a witness, 285; in what cases dispensed with, 285, 286. See 
 " Perjury." 
 
 Oaths, unlawful administering, statutes, 778; indictment, 780 ; venue, 779; 
 punishment, 7»0 ! evidence, 780. Indictment for taking such an oath, 
 781 ; punishment, 781 ; evidence, 781. Administering an oath to 
 commit treason or felony, statutes, 781; indictment, 782 ; venue, 782 ; 
 punishment, 783. Administering or receiving voluntary oaths, sta- 
 tute, 829; indictment, 829 ; punishment, 830; evidence, 830. 
 
 Obliterating or injuring records, statute, 353; valuable securities, other 
 than documents of title to lands, statute, 370 ; documents of title to 
 lands, statute, 357 ; wills, statute, 355 ; crossings on cheques, statute, 
 580. 
 
 Obscene prints, etc., indictment for selling, 777 ; punishment, 778 ; evi- 
 dence, 778. 
 
 Obstructing peace officer in execution of his duty, statute, 683 ; or any 
 person acting in his aid, statute, 683. 
 
 Obstructing officers of the army, navy, or revenue, in the exercise of their 
 duty. See " Smuggling." 
 
 Obstructing any engine or carriage using any railway, statute, 542, 513 ; 
 indictment, 543; punishment, 543 ; evidence, 544, 
 
 Obstructing navigation of public river, 900 ; indictment, 900 ; punishment, 
 901 ; evidence, 901. 
 
 Obtaining credit under false pretences by bankrupt, 871; any person 
 obtaining credit under false pretences, or by any other fraud in incur- 
 ring any debt or liability, 871. 
 
 Obtaining money, etc., under false pretences. See " Cheating," " False Pre- 
 tences." No ground of acquittal, that upon an indictment for, the case 
 proved amounts to larceny, 468, 483. 
 
 OfiFences against public justice, 795. 
 
 Offenders, apprehension of, for offences under Larceny Act, 305, 306 ; under 
 Malicious Injuries Act, 505 ; under Offences against the Person Act, 
 618 ; under Coinage Act, 741. 
 
 Office, designation of person by name of, in indictment, sufficient, 47. 
 
 Office, refusing to execute a public, 932 ; indictment for refusing to serve 
 the office of chief constable, 932 ; punishment, 933 ; evidence, 933. 
 Indictment for refusing to serve the office of petty constable, 933. In- 
 dictment for refusing to serve the office of overseer of the poor, 934; 
 evidence, 935. 
 
 Office, setting fire to, statute, 503 ; indictment, 507 ; punishment, 508 ; 
 evidence, 508. Riotously demolishing, pulling down, or destroying, or 
 beginning to do so, statute, 523 ; indictment, 524 ; punishment, 524 ; 
 evidence, 524 ; riotously injuring or damaging, statute, 523, 524. 
 
 Office, effect of conviction for felony on capacity for holding, 177. 
 
Index. 1021 
 
 Officer, peace, assaulting, etc , in due execution of his duty, etc., 683. 
 
 Officers, public, not necessary to show their appointment in indictments 
 against, for neglect of duty, 54 ; secus, in indictments against them 
 for refusing to serve when elected, 53 ; presumption as to due appoint- 
 ment of, arising from acting as such, 238. 
 
 Officers of justice and others, killing, 640 ; killing by, 646. Assaulting in 
 the execution of their duties, statute, 683 ; indictment, 684; punish- 
 ment, 684; evidence, 684. 
 
 Officers of justice, misconduct of, 832. 
 
 Officers and others lawfully authorized, assaulting, striking or wounding, on 
 account of the exercise of their duty in preserving wreck, statute, 678 ; 
 indictment, 679 ; punishment, 679 ; evidence, 679. 
 
 Officers in the army, navy, or revenue, in the execution of their duty, shoot- 
 ing at, 689 ; maiming or wounding, 689 j assaulting or obstructing, 
 691. See " Smuggling.''* 
 
 Officers of justice, in what cases informations granted against. 111. See 
 " Misconduct.'* 
 
 Officers of bodies corporate and public companies, frauds, etc. by, 464. 
 See " Companies, Public." 
 
 Omission, where manslaughter arises from act of omission, such act of 
 omission need not be stated in indictment, 656. 
 
 Opinion of medical writer on insanity cannot be quoted by counsel, 19. 
 Opinion of witness not evidence except in matters of science, 269, 298. 
 
 Orchard. See " Fruit," " Roots." 
 
 Order. See ^'Judge's Order," " Court of Record," " Proclamation, Order or 
 Regulation." Indictment against a constable for disobeying an order 
 of sessions, 834' ; evidence, 835. 
 
 Order issued by Poor Law Board, how proved, 262, 2^3 ; forgery of instru- 
 ment of proof of, 602. 
 
 Order and time of pleading, 123. 
 
 Order of justices, forging, 602. 
 
 Order for the delivery of goods, or for the payment of money, etc., stealing, 
 370 ; forging, 580. 
 
 Order of discharge of bankrupt, evidence of bankruptcy and of validity 
 of proceedings, 248 ; order closing bankruptcy, how proved, 248. 
 
 Ordering witness out of court, 296. 
 
 Ordinary, property of deceased person when formerly laid in, 40 ; property 
 should now be laid in Judge of Court of Probate where it was formerly 
 laid in Ordinary, 40, 41. 
 
 Ore, stealing from mine, statute, 360. See " Mine." 
 
 Outhouse, setting fire to, statute, 503 ; riotously demolishing, pulling 
 down, or destroying, or beginning to do so, statute, 523 ; riotously in- 
 juring or damaging, statute, 523, 524. 
 
 Outlawry, 83 ; law of forfeiture consequent upon, unaffected by 33 & 34 
 Vict. c. 23.. 177. 
 
 Overpowering drug, matter, or thing, administering with intent to commit 
 indictable offences, 669. 
 
 Overseer of the poor, indictment for refusing to serve the office of, 934; 
 evidence, 935. 
 
 Overseers of the poor to prosecute in certain cases, statute, 619 ; their costs 
 to be allowed, statute, 619. 
 
 Overt acts of compassing the Queen's death, 721, 722 ; of adhering to the 
 Queen's enemies, 728 et seq. 
 
 Ox, stealing or killing with intent to steal, statute, 349 ; maliciously kill- 
 ing, statute, 546. See " Cattle." 
 
 Oyster fishery, using a dredge, net, instrument or engine, within the limits 
 of, statute, 391 ; indictment, 393 ; punishment, 393 ; evidence, 393. 
 Dragging on the ground or soil of the oyster fishery of another, statute, 
 391 ! indictment, 392 ; punishment, 392 ; evidence, 392. 
 
 Oysters or oyster brood, stealing, statute, 391 ; indictment, 392 i punish- 
 ment, 393 ; evidence, 393. 
 
1022 Index. 
 
 P. 
 
 Paintings, etc., frauds in sale of, 486. 
 Pale, stealing, statute, 317. See " Fences." 
 Panel. See " Courts of Record." 
 Paper books, 194^ form of, 194. 
 Papist. See " Catholic.'' 
 
 Pardon, confession made under hope of obtaining, 224. 
 Pardon, plea of, 137; in what cases, 137; when to be pleaded, 1.37; in 
 what form, 137. The effect of pardon in restoring competency of 
 witness, 271. 
 Parent may be a witness for or against his child, 276 ; may commit a bat- 
 
 ' tery, 661 ; or even kill, 623, 631— in defence of his child. 
 Parish, building belonging to, setting fire to, 504 ; riotously demolishing, 
 pulling down or destroying, or beginning to do so, statute, 523 ; riot- 
 ously injuring or damaging, statute, 523, 524. 
 Parish officers, prosecutions by, 619, 295. 
 Parish poor, larceny of goods provided for, how described, 44. 
 Parish register, how proved, and in what cases evidence, 258 ; forging, 
 
 altering, etc., statute, 596. 
 Park. See '• Deer." 
 
 Parliament, entries in the journal of, how proved, and in what cases evi- 
 dence, 243. Acts of. See " Jets of Parliament," "Statutes." False 
 evidence before committees of either house of parliament on private 
 bills, 828. 
 Parliamentary elections, bribery, undue influence at, statutes relating to, 
 831; form of indictment for, 52 ; how holding of election proved on 
 trial for, 261 ; giving false answers at parliamentary elections, 828 ; 
 personation of voters at, 615; agent, etc., employed for reward by or 
 on behalf of candidate voting at, 30 & 31 Vict. c. 102, s. 11 ; returning 
 officer acting as agent for candidate, 30 & 31 Vict. c. 102, s. 50. 
 Parol evidence, 268. See " Evidence." 
 
 Partners, larceny of property of, how described, 42, 323 ; larceny or embez- 
 zlement by partner of partnership property, 308, 329, 447. 
 Partridge. See " Game." 
 Patents, how proved, 243. 
 
 Pawnbroker's ticket, indictment for making false declaration of loss of, 825, 
 Peace officer, assaulting, etc., in the due execution of his duty, statute, 
 683 ; or any person acting in his aid, statute, 683 ; empowered to ap- 
 prehend without warrant person loitering at night and suspected of 
 felony against Larceny Act, statute, 104 ; against Malicious Injuries 
 Act, statute, 505; against Offences against Person Act, statute, 618. 
 See " Constable," " Officers." 
 Peat. See " Slacks." 
 Pedigree, falsification of, by vendor or mortgagor, his solicitor or agent, 
 
 358, 359. 
 Peer must be sworn if a witness, 285. 
 Peers and peeresses, how named in an indictment, 40. 
 Penal servitude, instead of transportation, statutes relating to, 171 — 173; 
 
 length of sentences of, 173; and see the punishments, passim. 
 Penal servitude, being at large during a sentence of, statutes, 805 ; indict- 
 ment, 807 ; venue,' 26, 805 ; punishment, 807; evidence, 807. 
 Penetration, carnal knowledge deemed complete upon proof of, statute, 
 
 704 ; what degree of, necessary to constitute rape, 706, 707. 
 Penny. See " Coin." 
 Peremptory challenge. See " Challenge." None in misdemeanors, 152, 
 
 153. 
 Perjury, 808 ;• statutes, 808. Prosecution by direction of judge, 809; form 
 of indictment, 810; form of indictment for subornation of perjury, 810; 
 certificate of trial of indictment on which perjury was committed, 811 j 
 
Index. 1023 
 
 Indictment for perjury in an affidavit to hold to bail, 811; necessary 
 allegations in indictments for perjury, 812 ; tlie oath) must be taken in 
 a judicial proceeding, SH; before a competent tribunal, 815; the 
 matter sworn must be material to the tpatter then under the considera- 
 tion of the court, 816; and false, 818 ; it must be sworn deliberately 
 and intentionally, 818; averments, 819 ; innuendoes, 819 ; assignments 
 of perjury, 819 ; evidence, 288, 820; punishment, 813 ; indictment for 
 perjury upon a trial at assizes, 822 ; evidence, 821; indictment for 
 perjury upon a complaint before a magistrate, 824 ; indictment for 
 subornation of perjury, 826 ; evidence, 827 ; false affirmation of a 
 Quaker, Moravian, or Separatist, perjury, S13; particular statutes 
 applicable to perjury, 827 ; two or more cannot be jointly indicted for, 
 68, 812 ; trial of charge of, alleged to have been committed in pending 
 suit, 813. 
 
 Perjury, subornation of, indictment for, 826 ; punishment, 827 ; evidence, 
 827. 
 
 Perpetuation of testimony of person dangerously 111 and not likely to re- 
 cover, provision for, 253, 254. 
 
 Person compelling execution, etc. of valuable securities by unlawful vio- 
 lence, etc., to the, with intent to defraud, statute, 412. 
 
 Person, stealing from the, statute, 409 ; indictment, 419 ; punishment, 
 419 ; evidence, 419. 
 
 Personal violence, robbery accompanied by, 410. 
 
 Personation, 610 ; personating seamen, etc., entitled to wages, etc., statute, 
 610; indictment, 612 ; punishment, 612 ; evidence, 612. Personating 
 soldiers, etc., statutes, 611. 
 
 Personating bail, statute, 614; indictment, 615; punishment, 615; evi- 
 dence, 615. 
 
 Personating owners of stock, etc., statute, 613 ; indictment, 614 ; punish- 
 ment, 614; evidence, 614. 
 
 Personating owner of share or interest in stock as defined in National Debt 
 Act, 1870. .613; personating owner of stock certificate or coupon 
 issued in pursuance of Part 5 of that act or of any former act, 613. 
 
 Personating owner of share or interest in India stock, 613 ; personating 
 owner of India stock certificate or coupon, 613. 
 
 Personating owner of share or interest in any company, 614 ; personating 
 owner of share warrant or coupon issued in pursuance of Companies 
 Act, 1867. .614 
 
 Personating voters, 615. 
 
 Petit treason to be deemed murder, 617. 
 
 Petty and grand larceny, distinction between, abolished, 303. 
 
 Petty sessions, trial for larceny, embezzlement, etc. at, 309. 
 
 Pharmaceutical chemist. See "Registers." 
 
 Pheasant. See " Game." 
 
 Picklock, having in possession by night, for purposes of housebreaking, 
 statute, 487, 488 ; indictment, 502. 
 
 Pictures, in museum, church, chapel, etc., damaging, statute, 553. See 
 '* Obscene Prints." 
 
 Pig, killing with intent to steal, statute, 349 ; maliciously killing, etc., sta- 
 tute, 546. See " Cattle." 
 
 Pigeons, stealing, 319, 320 ; killing or wounding, 320. 
 
 Piles of sea walls, dams, etc., removing, etc., statute, 539. See " Malicious 
 Mischief.' ' 
 
 Pilory abolished, 809. 
 
 Piracy atcommon law, indictment for, 427 ; punishment, 427 ; evidence, 428. 
 
 Piracy by statute, 430 ; statutes, 430. Indictment for piracy attended with 
 violence, 43l ; punishment, 432. Punishment of principals in second 
 degree, and accessories for piracy, 946. 
 
 Pit. See" Mine." 
 
 Place, how stated in indictments, 47, 49 ; unnecessary to state in body of 
 indictment, 49 ; except where local description requisite, 49 ; cases in 
 
1024 Jndex. 
 
 which local description is requisite, 50 ; place need not be proved as 
 laid, 199 ; exceptions to this rule, 199 ; variance in name oi', amend- 
 able, 206. 
 Place, building belonging to, setting fire to, statute, 504, riotously demo- 
 lishing, pulling down or destroying, or beginning to do so, statute, 523; 
 riotously injuring or damaging, statute, 523, 524. 
 
 Place, addition of, 38. 
 
 Place of trial, 94 ; changing, 94. 
 
 Placing wood, etc. on rails with intent to obstruct, etc. engine, etc., sta- 
 tute, 542 ; indictment, 543 ; punishment, 543 ; evidence, 544 j doing 
 similar acts with intent to endanger safety of passengers, statute, 675. 
 
 Plant stealing, etc., in garden, etc., statute, 366 ; destroying, etc., in 
 garden, etc., 551. See " Roots." 
 
 Plantation, setting fire to, statute, 518; indictment, 520; attempting to 
 set fire to, statute, 518. 
 
 Play, cheating at, punishable under 8 & 9 Vict. c. 109, s. 17. . 921 ; deemed 
 to be obtaining money by false pretences, 921. See " Gaming." 
 
 Plea in abatement, 125. See " Abatement." Special pleas in bar, 129. 
 
 Plea in bar, form, 129; replication to it, 129; Similiter, 130; Kejoinder, 
 130. See " Autrefois acquit," etc., " Pardon." 
 
 Plea to the jurisdiction, 124. See " Jurisdiction." 
 
 Pleading, order and time of, 123 ; pleading to charge of larceny at petty 
 sessions, 309, 310. 
 
 Pleasure ground. See " Fruit," " Roots," " Tree." 
 
 Pledge of goods of principal by factor, or agent, statute, 456 ; indictment, 
 461; punishment, 461; evidence, 461. 
 
 Plumage of birds, possession of stolen, 320. 
 
 Plundering a ship in distress, or wrecked, statute, 384 ; indictment, 385 ; 
 venue, 25 ; punishment, 385 ; evidence, 385. 
 
 Poaching. See " Game." 
 
 Poison, killing by, 627. Administering, with intent to murder, statute, 
 648 ; indictment, 648 ; punishment, 649 ; evidence, 649. Administer- 
 ing, so as to endanger life, or inflict grievous bodily harm, felony, sta- 
 tute, 670 ; indictment, 671 ; punishment, 671 ; evidence, 672. Ad- 
 ministering with intent to injure or annoy, misdemeanor, statute, 671. 
 Accused, although acquitted of the felony, may be convicted of mis- 
 demeanor, statute, 671. Attempting- to administer poison with intent 
 to murder, statute, 651 I indictment, 651 ; punishment, 651 ; evidence, 
 651. Administering, to procure abortion, statute, 711. See " Abortion." 
 
 Police-officer, larceny by, 348 ; embezzlement by, 455. 
 
 Police, supervision of the, 961. See " Supervision of the Police." 
 
 Poll-books of a parliamentary election, how proved, 259, 260. 
 
 Polls, challenges to the, 150, 151, 155, 156. 
 
 Polygamy. See " Bigamy." 
 
 Pond, injuries to, 544 ; destroying fish in, 544. See " Fish-pond," " Mill- 
 pond.." 
 
 Pool, breaking down or destroying dam or flood-gate of, statute, 544, 545 ; 
 indictment, 546. 
 
 Poor, goods provided for, how described, 44. 
 
 Poor-house, goods and chattels of or in, how described, 44. 
 
 Poor law, costs of prosecutions for offences against, 295. 
 
 Poor Law Board, proclamation, order, or regulation issued by, how proved, 
 262, 263 ; forgery of instrument of proof of, 602. 
 
 Poor-law union, building belonging to, setting fire to, statute, 504 ; riot- 
 ously demolishing, pulling down or destroying, or beginning to do so, 
 statute, 523 ; riotously injuring or damaging, statute, 523, 524. 
 
 Port, stealing from vessel, barge or boat in, 407, 408. 
 
 Positive, statements in indictments, etc., must be, 64. 
 
 Possession, criminal, in forgery, 555 ; in coinage offences, 743. 
 
 Possession by defendant of other stolen goods may be given in evidence 
 against him on his trial for receiving stolen goods, 433, 434, 438. 
 
Index. 1025 
 
 Possession, recent, of stolen property, presumption of guilt arising from, 
 235, 236 i may be evidence eitlier of stealing or receiving, 439. 
 
 Possession of stolen property, in any part of the United Kingdom, gives 
 jurisdiction for trial of offenders, 306. 
 
 Post. See " Fences." 
 
 Post-ofiBce, servants of, opening or delaying, or stealing, embezzling, se- 
 creting or destroying letters, 373, 374 ; disclosing or intercepting tele- 
 graphic messages, 378 ; punishment of principals in second degree and 
 accessories for offences against the Post-office, 946. See "Larceny," 
 " Letters.*' 
 
 Post-office, soliciting persons to commit off'ences punishable by the Post- 
 office Acts, 375, 384) making false declarations in matters relating to 
 Post-office, 828. 
 
 Postponement of trial, 93. 
 
 Powder. See *^ Stores." 
 
 Power of attorney, forging. See " Forgery." Fraud by broker, etc., en- 
 trusted with, 456. 
 
 Practice of the ecclesiastical courts, how proved, 24-5. 
 
 Practice, 1—107. 
 
 1. Within what time indictment must he preferred, 73. 
 
 2. Indictment, how found, 75. 
 
 3. Process after indictment found to compel appearance of the accused, 
 
 78 ; proceeding by writ, 78 ; venire facias ad respondendum, 78 ; 
 distringas, 78 ; capias, 79 ; proceeding by warrant of a justice, 79 ; 
 certificate of indictment found, 80 ; warrant to apprehend a person 
 indicted, 80; warrant of commitment of a person indicted, 80; 
 backing warrants, 81 ; when the defendant is already in prison, 81 ; 
 warrant to detain a person in custody for another offence, 81 ; 
 proceeding by bench warrant, 82 i warrant by judge of Queen's 
 Bench, 83; outlawry, 83. 
 
 4. Bail on indictments, 84 ; nature of bail, 84 ; who may be bail, 85 ; 
 
 recognizance of bail, 85 ; notice of said recognizance to be given 
 to the accused and his bail, 86 ; mode of admitting to bail where 
 the defendant has been committed to prison, 86 ; certificate of con- 
 sent to bail by committing justice, 87; recognizance to be trans- 
 mitted to committing justices, 87; warrant of deliverance where 
 a person in prison is bailed, 87 ; warrant of deliverance on bail 
 being given for a prisoner already committed, 87 i cases in which 
 a justice may at his discretion admit to bail, 88 ; cases where it is 
 imperative upon the justice to admit to bail, 88 ; bail in cases of 
 treason, 88; bail by Queen's Bench, 88; estreat of recognizance, 
 89. 
 
 5. Indictment, in what cases quashed, 90 ; how, 92. 
 
 6. Indictment, when and where tried, and herein of the removal of indict- 
 
 ments by certiorari, 93 ; when, 93 ; where, 94 ; writ of certiorari, 94 ; 
 effect of writ, 94 ; form of writ, Q5 ; in what cases granted, 95 ; 
 in what cases refused, 96 ; time when granted, 97 ; mode of ob- 
 taining the writ, 97 ; form of recognizance, 99 ; rule of Queen's 
 Bench to compel personal attendance of defendant from day to 
 day, 98 ; rule to compel defendant to put in better bail, 99 ; re- 
 turn to the writ, 100 ; sending back the record, 100 ; writ oi proce- 
 dendo, 100 ; trial at Central Criminal Court of indictments removed 
 by certiorari, 101 ; costs in certiorari, 102, 
 
 7. Cases in which courts of quarter sessions have no jurisdietion, 103, 
 
 104. 
 
 8. Nolle prosequi, 105 ; attorney-general's fiat, 105 ; in what cases 
 
 granted, 105 ; certificate of clerk of peace, 106; form of entering 
 nolle prosequi, 107 i effect of, 107. 
 
 9. Information ex officio, 108; by master of Crown- office, 110; when 
 
 and how to be moved for, 112; in what cases quashed or stayed, 
 115. 
 
1026 Index. 
 
 10. Process upon coroner's inquisition, 122 ; bail where the coroner has 
 committed a party to prison, 122. 
 
 11. Trial, HO; arraignment, 140 ; mode of arraigning prisoner where 
 indictment alleges previous conviction, H3 ; proceedings on trial 
 of a person non compos, HI, 142; course where prisoner is not 
 sufficiently sane to plead, 142 ; form of oath to the jury where pri- 
 soner is mute, 141 ; form of oath to jury when trying whether a 
 person refusing to plead is non compos or not, 141 ; defence in forma 
 pauperis, 143 ; petition and affidavit for leave to defend in forma 
 pauperis, 144 ; calling the jury, 145 ; qualification of jurors, 145 ; 
 venire facias juratores, 149 ; distringas juratores, 149 ; special jury, 
 149 i jury de medietate lingua, abolished, 150 ; challenge of jurors, 
 150 — 158 i giving the prisoner in charge to the jury, 158 ; process 
 against witnesses, 288; casefor the prosecution, 159; examination of 
 witnesses, 296 ; cross-examination, 299; re-examination, 301 ; the 
 defence, 160; the reply, 161 ; bill of exceptions, 161; adjournment 
 of trial, 162. 
 
 12. Verdict and judgment, 163 ; verdict, where delivered, 163 ; special 
 verdict, 164 ; where jury through mistake deliver an improper or 
 repugnant verdict, 16S ; form of entering verdict on the record, 
 167; discharge of jury, 168; arrest of judgment, 170; process 
 after verdict and before judgment, 170; judgment, 170; form 
 of judgment, 176 ; reprieve, 177 ; where female prisoner is 
 pregnant, 177; form of oaths to jury of matrons, 177; where 
 prisoner becomes insane after judgment, 177 ; discharge of pri- 
 soners, 177. 
 
 13. New trial, 178 ; granted by Queen's Bench where indictment has 
 
 been preferred in that court, or removed into it by certiorari, 178; 
 no new trial can be granted in a case of felony, 178 ; venire de novo, 
 178 — 181 ; when motion for new trial must be made, 180 ; rule for 
 new trial, 181. 
 
 14. Court for Crown cases reserved, 181 ; orders of court as to prepara- 
 tion and argument of case, 185 ; costs of argument, 185. 
 
 15. Writ of error, 186 ; what, and in what cases, 186 ; fiat of attorney- 
 general, 188 ; prcecipe, 188 ; forms of fiats, 188 ; issuing writ, and 
 form of writ of error, 189 ; writ of error on outlawry, in the Queen's 
 Bench, 191 ; return to fhewrit, 191 ; where the whole of the record 
 is not certified, plaintiff in error may allege diminution, 192 ; 
 assignment of error, 192; joinder in error, 193 ; form, 193 ; con- 
 cilium, 193 ; paper books, form of, 194 ; bail in error, 195; judg- 
 ment of affirmance, 195 ; judgment of reversal, 196 ; form of, in 
 Queen's Bench, 196; power of court on judgment of reversal to 
 pronounce proper judgment, 197. 
 
 16. Costs of prosecutions, 291 — 296. 
 
 Pregnancy of female prisoner, under sentence of death, 177. 
 
 Presumptive evidence, 235 ; what, 235 ; violent presumptions, 235 ; pro- 
 bable presumptions, 235 ; light or rash presumptions, 235 ; presump- 
 tions of law, 237. Cautions to be observed in admitting this evidence, 
 238 ; presumption that person acting in public office has been duly 
 appointed, 238 ; presumption of guilt arising from recent possession of 
 stolen property, 235, 439 ; presumption of malice arising from act of 
 killing, 237 ; presumption of malice arising from wrongful act done in- 
 tentionally, 237 ; presumption that a man contemplates the necessary 
 consequences of his own acts, 237 ; presumption of innocence, 238 ; 
 circumstances raising presumption that property found upon prisoner 
 has been stolen by him, and belongs to prosecutor, 236 ; presumption 
 as to continuance of life, 237, 238. 
 
 Pretences, obtaining property by false, 468 — 485. See " False Pretences." 
 
 Previous conviction, offences committed after, statutes, 959 ; indictment, 
 962 ; punishment, 963 ; evidence, 964. 
 
 Previous conviction, punishment for simple larceny after previous convic- 
 
Index. 1027 
 
 tion for felony, 304 ; after previous conviction for misdemeanor, 304 ; 
 indictment and proceedings on trial where previous conviction charged 
 under Larceny Act, 307 ; under Coinage Act, 741, 756, 757. Mode of 
 arraignment where indictment contains charge of, 143. 
 
 Previous conviction may in certain case's be given in evidence against 
 person indicted for receiving stolen goods, to prove guilty knowledge, 
 433, 434, 438 1 notice must be given to defendant of intention to give 
 such evidence, 434, 438. 
 
 Previous conviction, how proved, 241, 242, 964. See "Conviction." 
 
 Principal and accessory. See "Accessory." 
 
 1. Principals in the first degree, who are, 7. 
 
 2. Principals in the second degree, 8 — 11, 945; who are, 8 ; must be 
 
 present, 8 ; must participate in the act, 9 ; when to be tried, 10, ■ 
 proceedings against, 945 ; statutes affecting, 945 ; indictment, 947 ; 
 punishment, 947 ; under Larceny Act, 945 j under Malicious In- 
 juries Act, 945 ; under Forgery Act, 945 ; under Coinage Act, 
 946 ; Offences against the Person Act, 946 ; evidence, 948. 
 
 3. Accessories before the fact, 11 ; who are, 11 ; must be absent, 11 ; 
 
 means of procurement, 11 ; in what offences, 12; indictable as 
 principals, 13, 950, 951 ; may be proceeded against where principal 
 is convicted, although not attainted, 951 ; indictable as such, or as 
 substantive felons, 951 ; any number of separate accessories may 
 be included in same indictment in absence of the principal, 14 ; 
 statutes affecting, 12, 13, 14, 945, 950. Indictment of, together 
 with the principal, 951 ; trial of, 36, 951 ; punishment, 952; evi- 
 dence, 953. Indictment of, as for a substantive felony, 12, 13, 
 954; evidence, 954; to felonious injuries to property, statute, 
 945 ; to felonious forgeries, statute, 945 ; to felonies under Coinage 
 Act, 946 ; to felonies under Offences against the Person Act, 946. 
 
 4. Accessories after the fact, 14; who are, 14; who are not, 14; in 
 
 what offences, 15, 956 ; indictable either as accessories after the 
 fact, or for substantive felonies, 15, 955 ; statutes affecting, 15, 
 955 ; trial of, 36, 951. Indictment of, with the principal, 956 ; 
 venue, 36 ; punishment, 956; evidence, 957. Indictment of, the 
 principal being convicted, 958 ; evidence, 958. See "Receiving;" 
 to felonious injuries to property, 505; to felonious forgeries, 558 ; 
 to felonies under Coinage Act, 741 ; to felonies under Offences 
 against the Person Act, 618. 
 Principal felon, a competent witness against the receiver, 435. 
 Prints. See " Obscene Prints." 
 Prior conviction. See "Previous Conviction." 
 Prison. See " Breach of Prison." 
 
 Prisoner, presence of, at trial, 143 ; how brought up as a witness, 290. 
 Private bills, false evidence before committee of either house of parliament 
 
 on, 828 ; false evidence before courts of referees on, 828. 
 Privileged communications, 276 ; counsel and attorneys privileged from 
 giving evidence of matters confided to them by their clients, 276 ; ex- 
 tent and qualification of this rule, 276 ; does not extend to medical 
 m.en, 277 ; statements made by penitent to priest in confession, 277 ; 
 disclosure of facts which may be detrimental to public service will not 
 be compelled, 277. 
 Privileged communication, 860. 
 Privy council proclamation, order, or regulation issued by, how proved, 262, 
 
 263 ; forgery of instrument of proof of, 602. 
 Privy seal. See " Forgery" 
 Prize causes, perjury in, 828. 
 
 Prize fight, persons present at, guilty of an unlawful assembly, 843. 
 Probate of a will, copy of, in what cases evidence, 246 ; revocation of the 
 
 probate, how proved, 246. 
 Proceedings and resolutions of meetings of creditors in bankruptcy, how 
 proved, 248, 249. 
 
1028 I-ndtx. 
 
 Proceedings in bankruptcy, how proved, 247, 249. 
 
 Process, stealing or destroying any, 353; forging, 601. See "Courts of 
 Record.*' 
 
 Process after indictment found, 78 ; process to outlawry, 83. See " Prac- 
 tice," sect. 3. 
 
 Process against witnesses, 288. 
 
 Proclamation, order, or regulation issued by the Queen, by the Privy 
 Council, by the Treasury, by the Board of Admiralty, by Secretaries of 
 State, by the Board of Trade, or by the Poor Law Board, how proved, 
 262, 263 ; forgery of instrument of, proof of, 602 ; in what cases the 
 Queen's proclamation is evidence, 262. 
 
 Proclamation under the Riot Act, 843, 844. Opposing the reading of it, 
 statute, 844; indictment, 845; punishment, 846; evidence, 846. 
 
 Procure, to procure any person to commit a felony, itself a felony, 12, 13 ; 
 to procure the commission of a misdemeanor makes the offender a 
 principal, 11. 
 
 Procuring the defilement of a girl. See " Defilement." 
 
 Production of documents in hands of opposite party at trial, how procured, 
 220. 
 
 Promissory note, stealing, 370 ; forging and uttering, 577 ; obtaining sig- 
 nature to, by false pretences, 469, 485 ; by force, etc., 412. 
 
 Property, making or causing to be made any gift, delivery, or transfer of, 
 or any charge upon, with intent to defraud creditors, 871 ; removal or 
 concealment of, by judgment debtor, with intent to defraud creditors, 
 871, 872. 
 
 Property, meaning of, in Larceny Act, statute, 303. 
 
 Prosecutor, a competent witness, 273 ; and so also is his wife, 275 ; his ex- 
 penses, in what cases given to him, 291 et seq. 
 
 Provident societies, property of, how described, 45. 
 
 Proviso in a statute, when to be stated in pleading, 62 ; how proved, 210. 
 
 Provocation, killing upon, 631; where murder, 631—634; where man- 
 slaughter, 631 — 634; cannot be excusable or justifiable, 631. 
 
 Provoking a man to send a challenge, indictment for, 852 ; punishment, 
 852 ; evidence, 852. 
 
 Public bridge, injuries to, statute, 540. See "Bridge." 
 
 Public buildings, setting fire to, statute, 504 ; riotously demolishing, pulling 
 down or destroying, or beginning to do so, statute, 523 ; riotously in- 
 juring or damaging, statute, 523, 524. 
 
 Public company, books of, how proved, 261, 263. 
 
 Public ofiice, refusing to execute, 932. 
 
 Public monuments, statues, etc., destroying or damaging, 553. 
 
 Public stock, stealing any order or security, entitling to any share in, statute, 
 370; indictment, 371; punishment, 371; evidence, 371 ; forgery re- 
 lating to, statute, 589, 591—595. 
 
 Public service, larceny by person employed in, 348 ; embezzlement by per- 
 son employed in, 455. 
 
 Public company, frauds by directors, members, and officers of, 464 ; forgeries 
 relating to stock of, statute, 589. 
 
 Public officer, presumption as to due appointment of, arising from acting as 
 such, 238. 
 
 Public worship, disturbing, 930. 
 
 Publication of a libel, what, 771 ; how proved, 771. 
 
 Pulse. See " Crops," " Stacks." 
 
 Punishment of felony for which no punishment is specially provided, 7 8: 8 
 G. 4> c. 28, s. 8.. 173 ; where court empowered or required to award 
 sentence of transportation exceeding seven years, it may pass a lighter 
 sentence, 174. 
 
 Punishment of common law misdemeanors, 174; sentence for felony on 
 person already under sentence for another crime, 173 ; sentence of 
 death maybe recorded in all capital cases, 171 ; except treason and 
 murder, 171. 
 
Index. 1029 
 
 Punishment. See " Fine," " Hard Labour," " Penal Servitude," " Solitary 
 ConJineTnent," " Supervision of the Police,^^ *' Sureties," " Whipping." 
 
 Purchaser, innocent, of stolen property, on restitution thereof to the prose- 
 cutor, may be compensated out of monies found on thief, statute, 
 308. 
 
 Purchaser, concealing instruments of title or incumbrances from, 358, 
 3S9. 
 
 Purlieu. See " Deer." 
 
 Purport, meaning of the term in pleading, 57. Variance in, 205. 
 
 a 
 
 Quaker. See "Affirmation." 
 
 Qualification of jurors, 145. See " Trial," 
 
 Quarrel, sudden, and where person killed, 629, 630. 
 
 Quarter sessions, cases which cannot be tried at, 104, 105. See " Sessions." 
 
 Quashing indictments, in what cases, 90, 92. Quashing informations, 109, 
 115. 
 
 Quay, stealing from, statute, 407, 408 ; indictment, 409 ; punishment, 409 ; 
 evidence, 409. Destroying, etc., statute, 538. 
 
 Queen, discharging or aiming, etc. fire-arms, etc. at the person of, statutes, 
 733 ; indictment, 734 ; punishment, 734 ; evidence, 734. Throwing at 
 the Queen, etc., indictment, 734. See " Treason." 
 
 Queen, setting 6re to building belonging to, statute, 504 ; riotously demo- 
 lishing, pulling down or destroying, or beginning to do so, statute, 523 ; 
 riotously injuring or damaging, statute, 523, 524. 
 
 Queen's Bench, bail by, 88. 
 
 Queen's evidence, confession made under hope of being received as, 224. 
 
 Queen's stores. See "Naval Stores," " War Department Stores." 
 
 R. 
 
 Rabbits, taking or killing in the night time, in warrens or grounds used for 
 breeding or keeping, statute, 388 ; indictment, 389 ; punishment, 389 ; 
 evidence, 389. 
 
 Rack. See "Machinery." 
 
 Rail, stealing, statute, 317. See "Fences," "Fixtures." 
 
 Railways, 542 j maliciously putting, placing, casting, or throwing upon or 
 across any railway, wood, stone, etc., turning, moving, or diverting any 
 points or machinery, or making, showing, hiding or removing, any 
 signal or light, with intent to obstruct or upset, or injure, or destroy, 
 any engine, tender, carriage or truck, statutes, 542 ; indictment, 543 ; 
 punishment, 543 ; evidence, 544; with intent to endanger the safety of 
 any person travelling thereon, statute, 675 ; indictment, 676 ; punish- 
 ment, 676 ; evidence, 676. Throwing, or causing to fall into or upon 
 any engine, carriage, etc., any wood, stone, etc., with intent, etc., 
 statute, 676. Doing or omitting anything whereby engines or carriages 
 are obstructed, statute, 51'3 ; whereby travellers are endangered, statute, 
 676. See "Light Railway," "Regulation of Railways Act, J868." 
 
 Railway stations or engine-house, warehouse, or other building appertaining 
 to any railway, setting fire to, statute, 504 ; attempting to set fire to, 
 statute, 517; injuring railway bridge, statute, 540. 
 
 Ram, stealing or killing, with intent to steal, statute, 349 ; maliciously 
 killing, statute, 546. See " Cattle." 
 
 Rape, 704. Ravishing a woman, statute, 704; indictment, 704; punish- 
 ment, 704; evidence, 705. Procuring by false pretences the defilement 
 of a woman or girl under twenty-one years of age, statute, 707 ; indict- 
 ment, 707 ; punishment, 708 ; evidence, 708. Cawially abusing a girl 
 under ten years, statute, 708 ; indictment, 708 ; punishment, 709 ; evi- 
 
1030 Index. 
 
 dence, 709. Carnally abusing a girl under twelve and'above ten years, 
 statute, 708 ; indictment, 709 j punishment, 709 ; evidence, 709. In- 
 decent assault upon female, statute, 710 ; indictment, 710 ; punishment, 
 710 J evidence, 710. Attempt to have carnal knowledge of girl under 
 twelve, statute, 710. 
 
 Rapuit, necessary in indictments for rape, 60. 
 
 Rate-book, destroying, etc., 355. 
 
 Real estate, stealing documents of title to, 357. 
 
 Realm, colonies not parts of the, 29. 
 
 Receipt, forging or uttering, statute, 580 ; indictment, 587. 
 
 Receiving stolen, etc. goods, etc., a felony, where the stealing, etc. is a 
 felony, 432 ; receiver may be indicted either as accessory after the fact 
 or for a substantive felony, 432 ; may be indicted for substantive felony 
 whether principal felon shall or shall not have been previously con- 
 victed, or shall or shall not be amenable to justice, 432 ; however tried 
 cannot be prosecuted second time for same offence, 432 ; receiving 
 stolen, etc. goods, etc., a misdemeanor, where the stealing, etc. is a mis- 
 demeanor, 433 ; receiver in such case may be indicted for misde- 
 meanor, whether principal misdemeanant shall or shall not have been 
 previously convicted, or shall not be amenable to justice, 433 ; venue in 
 indictment for receiving, 433 ; receiver may be indicted, etc. in place in 
 which he shall have had property in his possession, 433 ; or in place 
 in which principal might be tried, 433 ; or in place where he actually 
 received the property, 433 ; count for feloniously receiving may be in- 
 serted in indictment for feloniously stealing same property, 432 ; count 
 for feloniously stealing may be inserted in indictment for feloniously 
 receiving same property, 432 ; verdict upon indictment against two or 
 more for jointly receiving, where the proof is of separate receiving, 433 ; 
 receivers at different times, of property stolen at one time, may be 
 charged' with substantive felonies in same indictment, 433 ; although 
 principal felon not included in same indictment, or not in custody, or 
 not amenable to justice, 433 ; evidence of previous conviction of certain 
 offences admissible to prove guilty knowledge, 433, 434, 438 ; notice of 
 intention to adduce previous conviction in evidence must be given, 
 434, 438 ; evidence of possession of other stolen goods admissible to 
 prove guilty knowledge, 434, 438 ; indictment against receiver as for 
 substantive felony, 434 j venue, 435 ; punishment, 435 ; evidence, 
 435 i indictment against receiver where principal offence is a misde- 
 meanor, 439 ; venue, 440 ; punishment, 440 ; evidence, 440 ; indict- 
 ment against principal and receiver jointly, 440 ; punishment, 440 ; 
 evidence, 440 ; indictment against receiver as accessory, principal 
 having been convicted, 440 ; evidence, 441 ; receiving stolen, etc. post- 
 letters, etc., 441 ; indictment, 441 ; venue, 25 j punishment, 442 ; evi- 
 dence, 442. 
 
 deceiving stolen children, statute, 702, 703. 
 
 Receiving stolen letters, statute, 441 ; indictment against a receiver of, as 
 for a substantive felony, 441 ; punishment, 442 j evidence, 442. 
 
 Receiving materials or tools embezzled, etc., 435. 
 
 Recent possession of stolen property, presumption of guilt arising from, 
 235 i may be evidence either of stealing or receiving, 439. 
 
 Recognizance to appear and give evidence, 288. 
 
 Recognizance to try in Queen's Bench, estreat of, 90. 
 
 Recognizance of bail, 85 ; conditions of, 86 ; when to be transmitted to jus- 
 tices, 87 ; recognizances on bail by Queen's Bench, 89 ; estreat of re- 
 cognizance, 89 ; recognizances on remand of offenders triable before 
 justices in petty sessions, 310. 
 
 Recognizance or bail, acknowledging without authority or excuse, 614. See 
 " Acknowledging." 
 
 Recognizance, forging or uttering, statute, 601, 602. 
 
 Recognizances for keeping the peace and being of good behaviour, power 
 of court to require prisoner to enter into, on conviction under Larceny 
 
Index. 1031 
 
 Act, 307; under Malicious Injuries Act, 507; under Forgery Act, 
 558 i under Coinage Act, 742 ; under Oli'ences against the Person Act, 
 619. 
 
 Recognizances upon an information, 114, 115. 
 
 Record, matter of, how to be set out in indictment, 57. 
 
 Record, when the gist of pleading in criminal cases, 241 ; when the pur- 
 port of may be certified, without producing record, 241 ; when former 
 trial may be proved without making up record or certificate, 241. See 
 ^* Certiorari," "Writ of Error." 
 
 Recorder of any borough, etc., act for defining the jurisdiction of, 104 ; 
 offences not triable by, 104. 
 
 Records, forgery of, 601—603. 
 
 Records, etc., stealing or destroying, statute, S53 ; indictment, 354 ; punish- 
 ment, 354 ; evidence, 354. Indictment for taking a record from its 
 place of deposit, 354 ; punishment, 354; evidence, 354; injuring or 
 destroying a record, indictment, 355 ; punishment, 355 ; evidence, 
 355. 
 
 Records of the Queen's courts, how proved, 239 ; of inferior courts, how 
 proved, 240, 246; of the courts in Ireland, how proved, 257. Variance 
 between the statement and matter of proof of record, 203. In what 
 cases the record may be amended, 205 et seq. 
 
 Recovery, how proved, 243. 
 
 Re-examination of witnesses, 301. 
 
 Referees, false evidence before courts of, on private bills, 828. 
 
 Reformatory schools, confinement of juvenile offenders in, statute, 175. 
 
 Refreshments may be allowed to jury by judge at any time before giving 
 their verdict, 167. 
 
 Register of births, marriages, or deaths, forging, defacing, etc., 596. See 
 " Forgery.** 
 
 Register, parish, how proved, and in what cases evidence, 258. 
 
 Register of the navy, in what cases evidence, 259. 
 
 Registers of deeds, forgery of, 601. 
 
 Registers of pharmaceutical chemists, and chemists and druggists, registrar 
 falsifying, 486 ; procuring registry in, by false representations, 487 ; 
 admissibility and effect of printed copy of, 259. 
 
 Registrar of Court of Bankruptcy, judicial notice to be taken of bis sig- 
 nature, 249. 
 
 Registrar, making false statements touching birth, death, or marriage to, 
 828. 
 
 Regulation issued by Poor Law Board, how proved, 262, 263 ; forgery of 
 instrument of proof of, 602. 
 
 Regulation of Railways Act, 1868, false statement on oath to inspector 
 under, 828 ; signing false statement, etc. under, 466. 
 
 Rejoinder, form of, 130. 
 
 Relevant allegations, though unnecessary, must be proved, 55, 213. 
 
 Removal of indictment, 93 et seq. 
 
 Removal of property by judgment debtor with intent to defraud creditors, 
 871, 872. 
 
 Replication to a plea to the jurisdiction, 125 ; to a plea in bar, 129 ; to a 
 plea 0^ autrefois acquit, etc., 133. 
 
 Reply, right of Attorney-General to, in what rases, 109; right of counsel 
 for prosecution generally, 161. 
 
 Reprieve, 177. 
 
 Repugnant, statement in indictment must not be, 65. 
 
 Request for payment of money, etc., forging or uttering, 580 ; forging or 
 uttering indorsement or assignment of such request, 580. 
 
 Rescue, statutes, 803; indictment for rescue of a felon from a constable, 
 804; punishment, 804; evidence, 805. 
 
 Reservoir, breaking down or otherwise destroying dam or flood-gate of, 
 statute, 544, 545; indictment, 546; removing materials to secure dam, 
 etc. of, statute, 5^9. 
 
1032 Index. 
 
 Resolutions and proceedings of meetings of creditors in bankruptcy, how 
 proved', 248, 249. 
 
 Restitution, when awarded in forcible entry, 847. 
 
 Restitution of property stolen, etc. to owner prosecuting to conviction, 
 statute, 305; in cases of summary conviction, 311 ; Court of Queen's 
 Bench cannot award writ of restitution of stolen property, 305. Power 
 to court, on restitution of stolen property, to compensate the innocent 
 purchaser out of moneys' found on thief, statute, 308. 
 
 Return to writ. See " Practice." 
 
 Returning officer at parliamentary election, certificate of, evidence of hold- 
 ing of election, etc. in certain cases, 261. Such returning officer or 
 his deputy, or the partner or clerk of either of them, acting as agent 
 for candidate, .30 & 31 Vict. c. 102, s. 50. 
 
 Returning from transportation, statutes, 805 i indictment, 807 ; venue, 26, 
 805 ; punishment, 807 i evidence, 807. 
 
 Revenue officer. See " Officer." 
 
 Reversal of judgment, powers of court of error on, to pronounce proper judg- 
 ment, 197 i or to remit record to court below for that purpose, 197. 
 
 Reward, in what cases granted to witnesses, 295. 
 
 Reward, taking, under pretence of helping to stolen property, statute, 835; 
 indictment, 837 ; punishment, 837 ; evidence, 838 ; advertising reward 
 for return of stolen property, statute, 836; confession made under hope 
 of reward, 224. 
 
 Riding, building belonging to, setting fire to, statute, 504; riotously de- 
 molishing, pulling down or destroying or beginning to do so, statute, 
 523; riotously injuring or damaging, statute, 523, 524. 
 
 Ring dropping, larceny by, 335. 
 
 Ringing the changes, a mode of uttering base coin, 753. 
 
 Riot, 841. Indictment for a riot and assault, 841 ; punishment, 841 ; evi- 
 dence, 841. Indictment for a riot and tumult, 843 ; punishment, 843. 
 Rioters remaining together one hour after proclamation, statutes, 843 ; 
 indictment, 845; punishment, 846 ; evidence, 846. Riotously pulling 
 down or destroying or beginning to do so any church, chapel, house, 
 stable, coach-house, out-house, warehouse, office, shop, mill, malt- 
 house, hop-oast, barn, granaries, or manufactory or machinery, or 
 steam-engines used in mines, etc., etc., statute, 523 ; indictment, 524; 
 punishment, 524; evidence, 524; riotously injuring or damaging such 
 buildings, statute, 523, 524. 
 
 Rioters, killing, in what cases justifiable, 647. 
 
 Riotously demolishing, etc. See " Riot." 
 
 River. See " Navigable River." 
 
 River, public, obstructing navigation of, 900. 
 
 River bank, or wall, breaking or cutting down, whereby lands are over- 
 flowed, etc., statute, 538 ; indictment, 538 ; punishment, 538 ; evidence, 
 539. Cutting off, drawing up, or removing piles, chalk, etc., fixed for 
 the security of, statute, 539 ; indictment, 539 ; punishment, 540 ; evi- 
 dence, 540. Indictment for opening floodgates, etc., 540 ; punishment, 
 540; evidence, 540. 
 
 Road. See " Highway." 
 
 Robbery, statute, 409 ; on trial for, jury may convict of assault with intent 
 to rob, 409; indictment for, with violence, 412; punishment, 412; 
 evidence, 413. By a person armed, or by two or more, or accom- 
 panied by wounding or other personal violence, statute, 410; indict- 
 ment, 418; punishment, 418; evidence, 418; indictment for, 419; 
 punishment, 419; evidence, 419; indictment for stealing from the 
 person, 419; punishment, 419 ; evidence, 419. Assault with intent to 
 rob, statute, 409, 410; indictment, 420 ; punishment, 420; evidence, 
 420. Demanding property with menaces, or by force, with intent to 
 steal, statute, 411; indictment, 421 ; punishment, 421; evidence, 421. 
 
 Rolls. See " Court Rolls." 
 
 Rooting up trees. See " Tree," 
 
Index. 1033 
 
 Roots or plants growing in a garden, orchard, pleasure-ground, nursery- 
 ground, hot-house, greenhouse, or conservatory, stealing, or destroying 
 or damaging with intent to steal, statute, 366 j second offence, indict- 
 ment, 366 ; punishment, 367 ! evidence, 367. Maliciously destroying 
 or damaging, statute, 651 ; second offence, indictment, 552 ; punish- 
 ment, 552 ; evidence, 552. Stealing or destroying or damaging with 
 intent to steal, medicinal roots, plants, etc., growing elsewhere, 317. 
 
 Rout, what, 842. 
 
 Rule. See " Courts of Record." 
 
 Rule of court, how proved, and in what cases evidence, 241. 
 
 Running goods. See "Smuggling." 
 
 Sacrilege, 395. See " Church." 
 
 Sailor. See ^^ Jllegiance" " Seamen'^ 
 
 Sailor on board king's ship, attendance of, as witness, how secured, 290. 
 
 Sanctuary, plea of, abolished, 123. 
 
 Sapling. See " Tree." 
 
 Savings' bank, officers of, not paying over money, 466 ; property of, how 
 laid in indictments, 325. 
 
 School-house, breaking and entering and committing felony in, 397 ; com- 
 mitting felony in and breaking out of, 397 ; breaking and entering with 
 intent to commit felony therein, 398, 
 
 Scotch covenanter's oath, 285, n. 
 
 Sea, what within the jurisdiction of the Admiralty, 30, 32; offences on, 
 venue in indictments for, 30 — 33 ; trial of accessories when principal 
 felony committed on the, 33 ; averment of offences committed on the 
 high seas, 30, 33, 50. 
 
 Sea-bank or sea-wall, breaking or cutting down, whereby lands are over- 
 flowed or damaged, statute, 538 i indictment, 538 ; punishment, 538 ; 
 evidence, 539. Cutting off, drawing up, or removing piles, chalk, etc., 
 fixed for securing, statute, 539 ; indictment, 539 ; punishment, 540 ; 
 evidence, 540. 
 
 Sea Fisheries Act, 1868, false evidence on certain inquiries under, 828. 
 
 Seal of Court of Bankruptcy, judicial notice to be taken of, 249. 
 
 Seals, forging her Majesty's, 571. See " Forgery." 
 
 Seaman's advance note, forgery of, 579, 582, 585, 586; is not a promissory 
 note, 579 ; when it may be described as an order for the payment of money, 
 582 ; when not, 586 ; when it may be described as an undertaking for the 
 payment of money, 585, 586. 
 
 Seamen, master of a merchant vessel, forcing on shore, or refusing to bring 
 home, statute, 680; indictment, 683 ; punishment, 683 ; evidence, 683 ; 
 mode of trial, 681. 
 
 Second felony. See " Subsequent Felony." 
 
 Secondary evidence, 219, 220. 
 
 Seconds in case of murder by duelling, principals in second degree, 10 ; 
 guilty of murder where death ensues, 10, 629. 
 
 Secretaries of State, proclamation, order, or regulation'issued by, how proved, 
 262, 263 ; forgery of instrument of proof of, 602. 
 
 Security, valuable. See " Valuable Security." * 
 
 Security for money, or payment of money, etc., stealing, statute, 370; 
 indictment, 371 ; punishment,'371 ; evidence, 371. 
 
 Se defendendo, battery, 661 ; homicide, 628 — 631. 
 
 Sedition, 766 ; what, 767, 768. Indictment for a seditious libel, 766 ; 
 punishment, 767 ; evidence for the prosecution, 770 ; evidence for the 
 defendant, 772. Indictment for seditious words, 774 ; punishment, 
 775 ; evidence, 775. 
 
 Seller of land or chattels or choses in action, or his solicitor or agent, con- 
 cealing instrument of title or incumbrances from purchaser, or falsify- 
 W. YY 
 
1034 Index. 
 
 ing pedigree, 358, 359; prosecution for such ofiFence not to be com- 
 menced without sanction of attorney or solicitor-general, 359 ; such 
 sanction not to be given without previous notice to person intended to 
 be prosecuted, 359. 
 
 Sending explosive substances with intent to burn, etc., any person, statute, 
 672 ; indictment, 673 i punishment, 673 j evidence, 673. Sending 
 letters threatening to murder, statute, 853 ; letters threatening to burn 
 houses, etc., statute, 853 ; letters threatening to accuse of crimes, sta- 
 tute, 410, 411. 
 
 Sentence of death, when it may be recorded merely, 171 ; must be pro- 
 nounced in murder, 171, 620, 621. See "Punishment." 
 
 Sentence of the Admiralty Court, how proved, 246; of the Ecclesiastical 
 Court, how proved, 245. 
 
 Separatist. See " Affirmation." 
 
 Servants, embezzlement by, 442 ; indictment for, 444 ; punishment, 445 ; 
 evidence, 446. See "Embezzlement." Larceny by statute, 346; in- 
 dictment, 346 ; punishment, 347 i evidence, 347. Servant taking, con- 
 trary to orders, master's corn to feed master's horses, etc., 327. Larceny 
 from, 322. A servant may justify a battery, 661 ; or even homicide, 
 631 — in defence of his master ; but is not excused for crime committed 
 by master's order, 22. 
 
 Servants, or apprentices, assaults on, statute, 691 ; indictment for not pro- 
 viding with necessary food, clothing, or lodging, 692 ; punishment, 
 692; evidence, 692. 
 
 Sessions of the peace, act for defining the jurisdiction of, 104; offences 
 not triable at, 104, 105. 
 
 Sessions, indictments found at, and transmitted by justices to assizes, 78; 
 such indictments must be tried at assizes, though not removed by 
 certiorari, 78 ; indictment against high constable for disobeying order 
 of, 834 ; evidence, 835. 
 
 Setting fire to staclcs, 518. See "Arson," "Stacks." 
 
 Settlement material to title, concealment of, from mortgagee or purchaser, 
 by vendor or mortgagor or his solicitor or agent, 358, 359. 
 
 Sewers, commissioners of, property under them, how described, 45. 
 
 Shaft. See "Mine." 
 
 Share or interest in any company, personating owner of, 614. 
 
 Share warrant or coupon issued in pursuance of Companies Act, 1867, 
 forgery of, 606 ; engraving upon any plate, etc., such share warrant or 
 coupon, or using or having such plate, 608; personating owner of such 
 share warrant or coupon, 614. 
 
 Shares in joint stock bank, contracts for sale of. See " Joint Stock Bank." * 
 
 Shed, setting fire to, statute, 503, 504 ; riotously demolishing, etc., or be- 
 ginning to do so, statute, 523 ; riotously injuring or damaging, statute, 
 523, 524. 
 
 Sheep, stealing, or killing with intent to steal, statute, 349; maliciously 
 killing, etc., statute, 546. See " Cattle." 
 
 Shilling. See " Coin." 
 
 Ship building, etc., illegal, under provisions of Foreign Enlistment Act, 
 I870..736c<sej. 
 
 Ship, English, on high seas, English territory, 24, 31 ; evidence of ship 
 being British, 31, 269. 
 •Ships, setting fire to, maliciously, statute, 514; indictment, 515; punish- 
 ment, 515 ; evidence, 515; the like with intent to prejudice the owner 
 of the ship or goods, or underwriter, statute, 514; indictment, 516; 
 punishment, 516; evidence, 516. Attempting to set fire to ships, 
 statute, 514. Destroying a ship with the like intent, statute, 533; 
 indictment, 533 ; punishment, 533 ; evidence, 533. Damaging a ship 
 otherwbe than by fire, statute, 534 ; indictment, 534 ; punishment, 
 534; evidence, 535. Attempting to damage ships with gunpowder, 
 statute, 534, Placing gunpowder in or near ships with intent to do 
 bodily injury, statute, 672. Exhibiting false lights or signals to bring 
 
Index: 1035 
 
 a ship into danger, statute, 535 ; indictment, 535 ; punisliment, 535 ; 
 evidence, 536. Doing any act tending to the immediate loss of a ship, 
 statute, 535 ; indictment, 536 1 punishment, 536 ; evidence, 536. De- 
 stroying any part of a ship in distress or wrecked, statute, 536 ; indict- 
 ment, 536 ; punishment, 537 ; evidence, 537. Cutting away, etc., buoys, 
 etc., or doing any act with intent to cut away, etc., buoys, etc., for the 
 purpose of navigation, statute, 537; indictment, 537; punishment, 
 537 ; evidence, 538. Setting fire to or casting away, with intent to 
 murder, statute, 655. Sending letters threatening to burn or destroy, 
 statute, 853 ; indictment, 853 ; punishment, 854 ; evidence, 854 ; 
 stealing from, in port or in a river or canal, statute, 407 ; indictment, 
 408 ; punishment, 408 ; evidence, 408. Plundering or stealing from 
 a ship in distress, wrecked, stranded, or cast on shore, statute, 384 ; 
 indictment, 385 ; venue, 25 ; punishment, 385 ; evidence, 385. Im- 
 peding a person endeavouring to save life from a ship in distress or 
 wrecked, statute, 679; indictment, 680; punishment, 680; evidence, 
 680, Assaulting officers endeavouring to save wreck, statute, 678. 
 
 Shipwrecked goods, being in possession of, 318, 319. 
 
 Shooting, murder by. See " Murder.'* Shooting at a person, with intent to 
 murder, statute, 651; indictment, 652; punishment, 652 ; evidence, 
 652. Attempting, by drawing a trigger, or in any other manner, to 
 shoot at a person with intent to murder, statute, 651 ; indictment, 653 ; 
 punishment, 653 ; evidence, 653. Shooting at a person with intent to 
 maim, disfigure, disable, to do some grievous bodily harm, or to pre- 
 vent or resist a lawful apprehension or detainer, statute, 663 ; indict- 
 ment, 667; punishment, 667 ; evidence, 667 ; attempting to shoot with 
 the like intent, statute, 663 ; indictment, 667 ; punishment, 667; evi- 
 dence, 667. Shooting at officers in the army, navy, or revenue, in the 
 exercise of their duty, statute, 689 ; indictment, 690 ; venue, 689 ; 
 punishment, 690; evidence, 690. Shooting at any vessel, etc., belong- 
 ing to the navy or revenue, statute, 689. 
 
 Shop, breaking and entering, and committing felony in, statute, 397 ; in- 
 dictment, 400 ; punishment, 400 ; evidence, 400. Committing felony 
 in and breaking out of, statute, 397. Breaking and entering with 
 intent to commit felony therein, statute, 398. Setting fire to, statute, 
 5QS. Riotously demolishing, pulling down, or destroying, or beginning 
 to do so, statute, 523. Riotously inj uring or damaging, statute, 523, 524. 
 
 Shrub. See " Tree." 
 
 Signal. See " Railways," "Ship" ^^ Smuggling." 
 
 Signature of judge, does not require proof, 244; nor does signature of judge 
 or registrar of court of bankruptcy, 249. 
 
 Silk goods in any stage of manufacture, stealing, statute, 406 : indictment, 
 406 ; punishment, 407 ; evidence, 407. Cutting, breaking, or destroy- 
 ing, or damaging with intent to destroy or render useless, silk goods in 
 the loom, etc., or other process of manufacture, statute, 526 j indict- 
 ment, 527 ; punishment, 527 ; evidence, 527. Cutting, etc., or da- 
 maging, etc., any warp or shute of silk, statute, 526; indictment, 527 ; 
 punishment, 527 ; evidence, 527: entering a building by force to com- 
 mit these offences, statute, 526 ; indictment, 528 ; punishment, 528 ; 
 evidence, 528. 
 
 Similiter, 130, 133. 
 
 Simple larceny. See " Larceny." 
 
 Slander. See " Libel." Indictment for slanderous words to a magistrate, 
 839 ; punishment, 839; evidence, 840. 
 
 Sluice. See "Canal," " Fish Pond," " Navigable River." 
 
 Smuggling, statutes, 864. Making signals to smuggling vessels, statute, 
 864; indictment, 865; venue, 25; punishment, 865; evidence, 865. 
 Being armed and assembled for the purpose of assisting in running 
 uncustomed goods, etc., statute, 865 ; indictment, 866 ; venue, 25 ; 
 punishment, 866; evidence, 867. Assisting in running uncustomed 
 yy2 
 
1036 Index. 
 
 goods, indictment, 867 i punishment, 867 ; evidence, 867. Shooting 
 at a ship belonging to the navy or revenue, statutes, 868 ; indictment, 
 868 ; venue, 25 ; punishment, 868 ; evidence, 868. Shooting at offi- 
 cers of the army or navy, etc., or officers of the customs employed for 
 the prevention of smuggling, statute, 689 ; indictment, 690 ; venue, 
 25, 689 J punishment, 690; evidence, '690. Maiming or wounding 
 such persons, statute, 689; indictment, 690; venue, 25; punisliment, 
 690 ; evidence, 691. Assaulting or obstructing such persons, statute, 
 691; indictment, 691; venue, 25; punishment, 691; evidence, 691. 
 Being found in company with more than four others, with goods liable 
 to forfeiture, statute, 868 ; indictment, 869 ; venue, 25 ; punishment, 
 869 ; evidence, 869. Being found armed near a navigable river, in- 
 dictment, 869 ; punishment, 869 ; evidence, 869. 
 
 Snare. See " Deer," " Hares." 
 
 Sodomy, statute, 716; indictment, 716; punishment, 716; evidence, 716. 
 Assault with intent to commit, statute, 717; indictment, 718; punish- 
 ment, 718; evidence, 718. Attempt to commit, statute, 717. See 
 " Bestiality." 
 
 Soldier. See " Allegiance." 
 
 Soliciting a person to commit an offence, indictment for, 955. Need not 
 state particulars of solicitation, 51; punishment, 955 ; evidence, 955. 
 Soliciting to murder, statute, 647. 
 
 Solicitor or agent of seller or mortgagor concealing instruments of title or 
 incumbrances from purchaser or mortgagee or falsifying pedigree, 358, 
 359. 
 
 Solitary confinement, general enactment as to extent and duration of, 174 ; 
 extent and duration of under Larceny Act, 308 ; under Malicious 
 Injuries to Property Act, 507 ; under Forgery Act, 558 ; under Offences 
 against the Person Act, 619 ; under the Coinage Act, 743 ; may be 
 inflicted for offences punishable under 7 8i 8 Geo. 4, c. 28. .173; for 
 offences punishable under Post-office Acts, 376. 
 
 Son assault demesne, 661. 
 
 Sovereigns. See *' Coin.'* 
 
 Special jury, 148; ordered in misdemeanors only, 148. 
 
 Special plea. See "Abatement," "Autrefois acquit" etc., "Jurisdiction," 
 '* Pleas in Bar." 
 
 Special venue, 49. See " Place." 
 
 Special verdict, 164. 
 
 Spring-guns or man-traps, setting, with intent to do grievous bodily harm, 
 statute, 674 ; indictment, 675 ; punishment, 675 ; evidence, 675. 
 
 Stabbing. See " Wounding." 
 
 Stable, setting fire to, statute, 503. Riotously demolishing, pulling down, 
 or destroying or beginning to do so, statute, 523. Riotously injuring, 
 or damaging, statute, 523, 524. 
 
 Stacks of corn, grain, pulse, tares, hay, straw, haulm, stubble, or of any 
 cultivated vegetable produce, furze, gorse, heath, fern, turf, peat, coals, 
 charcoal, wood or bark, or any steer of wood or bark, setting fire to, 
 statute, 518; indictment, 519; punishment, 519; evidence, 519; at- 
 tempting to set fire to such stacks, statute, 518. 
 
 Staith. See "Mine." 
 
 Stamp, documents admissible without, in criminal cases, 268. 
 
 Stamping coin with words or names, statute, 749. 
 
 Stamps used for purposes of inland revenue, forgery of, 603, 604; forgery 
 of stamps used in pursuance of Local Stamp Act, 1869.. 604. 
 
 Stamps, making false declarations in matters relating to, 828. 
 
 Standing mute, 138, 141. 
 
 Starving, murder. See " Murder." 
 
 State. See " Acts of State." 
 
 State, secretaries of. See " Secretaries of Slate." 
 
 Statement. See " Indictment." 
 
Index. 1037 
 
 Statues, exposed to public view, destroying or damaging, 553. > 
 
 Statutes, in what case to be proved, and how, 239. Certainty required in 
 indictments on statutes creating offences, 60; or imposing a higher 
 degree of punishment, 60. Proviso and exception in a statute, when 
 to be stated in pleading, 62 j how proved, 210; title of statute, how 
 stated, 62. See *^ Acts of Parliament." 
 
 Stealing. See " Larceny." Stealing from the person, statute, 409. 
 
 Stealing children, 702. 
 
 Steam-engine. See "Machinery," "Mine." Nuisance occasioned by fur- 
 nace of, 890. 
 
 Steer of wood or bark. See " Stacks." 
 
 Stiles. See " Fences." 
 
 Stock as defined in National Debt Act, 1870, demanding share of, or receipt 
 of dividend upon, by virtue of forged stock certificate or coupon, 595 ; 
 personating owner of share of, 613. 
 
 Stock certificate or coupon issued in pursuance of Part 5 of National Debt 
 Act, 1870, forgery of, 595; demanding share of stock or receipt of 
 dividend by virtue of forged certificate or coupon, 595 ; pe^;sonating 
 owner of such stock certificate or coupon, 613; engraving upon any 
 plate any such stock certificate or coupon, 608. 
 
 Stock in joint-stock bank, contracts for sale of. See "Joint-Stock Bank." 
 
 Stock, public, stealing or obliterating orders, or securities, entitling to any 
 share in, statute, 370; indictment, 371; punishment, 371; evidence, 
 371. Forging transfers of, statute, 589. 
 
 Stock. See " Forgery " " Personating Owners of Stock." 
 
 Stockings in the loom, etc., or other process of manufacture, cutting, break- 
 ing, or destroying, or damaging with intent to destroy or render useless, 
 statute, 526; indictment, 527 ; punishment, 527 ; evidence, 527. En- 
 tering a building by force to commit such offence, statute, 526 ; indict- 
 ment, 528 ; punishment, 528 ; evidence, 528. 
 
 Stolen property, receiving. See " Receiving." Restitution of, 305, 311. 
 Power of court on restitution of, to compensate innocent purchaser out 
 of monies found on thief, statute, 308. Taking reward for recovery of, 
 statute, 835. Advertising reward for return of, statute, 836. 
 
 Stores. See '^Burning," " Naval Stores" " IVar Department Stores." 
 
 Strangle, attempting to, with intent to murder, statute, 651 ; with intent to 
 commit any indictable offence, statute, 668. 
 
 Straw. See " Stacks," 
 
 Street, or square, larceny of fixture in any, 368. 
 
 Striking. See " Assault," "Beating." 
 
 Stubble. See " Stacks." 
 
 Stupefying drug, administering with intent to commit indictable offences, 
 669. 
 
 Sub-inspector of factories, falsely pretending to be, 486. 
 
 Subjection to the power of others, in what cases an excuse for crime, 22. 
 
 Subornation of perjury, indictment for, 826; punishment, 827; evidence, 
 827. 
 
 Subpoena, 288. Subpoena duces tecum, 289. 
 
 Subsequent felony, statutes, 959 ; indictment, 962 ; punishment, 963 ; 
 evidence, 964. 
 
 Subsequent 'offence. See *' Previous Conviction." 
 
 Substantive felony, accessories may be indicted for, 12, 13, 15, 951, 955. 
 
 Suffocate, attempt to, with intent to murder, statute, 651 ; with intent to 
 commit any indictable offence, statute, 668 ; indictment, 668 ; punish- 
 ment, 669 ; evidence, 669. 
 
 Suicide, where two agree to commit, and but one dies, survivor guilty of 
 murder, 626, 627; attempt to commit, 656. 
 
 Summary convictions, punishment for larceny after two, 304 ; a bar to other 
 proceedings under Larceny Act, 306 ; under Malicious Injuries Act, 
 506 ; for assault when a bar to other proceedings, 134 — 137. 
 yy3 
 
1038 Indem. 
 
 Summary convictions, how proved, 243, 263. 
 
 Summary jurisdiction in certain larcenies and embezzlements, given to 
 
 justices at petty sessions, 309. 
 Summing-up evidence by counsel for prosecution, 159 ; in what cases 
 
 allowed, 159; under what circumstances right of, should be exercised, 
 
 160; summing-up evidence by prisoner or his counsel, 161; in what 
 
 cases allowed, 161. 
 Sunday, whether verdict can be received on, 163. 
 Supervision of the police, subjection to, when to be deemed part of sentence, 
 
 961 ; duration of, 961 ; commencement of, 961 ; consequences of, 961 ; 
 
 record of conviction to contain statement of, 962 ; effect of omission 
 
 of such statement, 962. 
 Sureties for keeping the peace and being of good behaviour, power of court 
 
 to require prisoner to find, on conviction under Larceny Act, 307; 
 
 under Malicious Injuries Act, 507; under Forgery Act, 558; undei 
 
 Coinage Act, 742 ; under Offences against the Person Act, 619. 
 Surgeon. See " Medical Man." 
 Surname of the defendant in an indictment, 38. 
 Surplusage, what may be rejected as, 52, 212 ; unnecessary allegations, if 
 
 descriptive of some ingredient in offence, cannot be rejected as, 55 ; 
 
 213; allegations of facts not necessary ingredients in offence maybe 
 
 rejected as, 52, 212 ; allegations descriptive of identity, when they 
 
 cannot be rejected as, 213. 
 Surveys, public, 258 ; how proved, 258. 
 Swans, stealing, 319. 
 
 Tackle. See " Machinery." 
 
 Taking, what, to constitute larceny, 328; actual, 331, 332; constructive, 
 331, 332. 
 
 Taking up dead bodies, 929. 
 
 Tales, award of, 149, 157. 
 
 Tares. See " Slacks." 
 
 Taxes, making false declarations in matters relating to, 828. 
 
 Technical terms, what necessary in an indictment, 59, 60. 
 
 Telegraph Acts, 1868 and 1869, to be Post-Office Acts, 379. 
 
 Telegraph, destroying or injuring, statute, 543; attempts, statute, 543; 
 obstructing communications by, statute, 543. 
 
 Telegraphic message to be deemed post letter, 378 ; official of post-office 
 disclosing or intercepting, 378; punishment, 378; property in, how 
 laid, 378 ; not necessary to allege or prove that it was of any value, 
 378 ; how employment of offender under post-office to be alleged, 378. 
 
 Tenant, larceny by, statute, 394 ; injuries to buildings by, statute, 525 ; 
 indictment, 525 ; punishment, 526 ; evidence, 626. 
 
 Tenant in common, or joint tenant, by taking the thing in common from his 
 co-tenant, in what cases guilty of larceny, 329. 
 
 Tenour, implies a literal copy, 205. Variance after it, 205, 206. 
 
 Terriers, how proved, 261. 
 
 Testamentary instrument. See " Will." 
 
 Threatening letter, venue in indictment for sending, 35. 
 
 Threatening letter, sending, delivering, or uttering, a letter threatening to 
 burn or destroy houses, ships, cattle, etc., statute, 853 ; indictment, 853 ; 
 punishment, 854; evidence, 854. Sending a letter threatening to mur- 
 der, statute, 853; indictment, 853; punishment, 854; evidence, 854. 
 Sending, etc., letter demanding with menaces any property, etc., sta- 
 tute, 410; indictment, 422; punishment, 423; evidence, 423. Sending 
 a letter threatening to accuse another of a crime, with intent to extort 
 
Index. 1039 
 
 money, etc., statute, 411; indictment, 426; punisliment, 426; evi- 
 dence, 426. Sending a letter tlireatening to kill or burn, etc., statutes, 
 853; indictment, 853 ; punishment, 854; evidence, 854. 
 
 Threatening to accuse of crime, with intent to extort property, statute, 411 ; 
 indictment, 425; punishment, 425 ; evidence, 425. Inducing execu- 
 tion, etc. of valuable securities by threatening to accuse of crime, sta- 
 tute, 412. 
 
 Threats. See " Menaces," " Threatening Letter," " Threatening to accuse." 
 
 Threats of violence to or restraint of the person, inducing execution, etc. 
 of valuable securities by, with intent to defraud, 412. 
 
 Threats, no excuse for crime committed under their influence, 22. 
 
 Threshing machine, cutting, breaking, or destroying, or damaging with in- 
 tent to destroy or render useless, statute, 528 ; indictment, 529 ; 
 punishment, 529 ; evidence, 529. 
 
 Timber. See " Burning." 
 
 Time, how stated in indictment, 47, 48; unnecessary to be stated, except 
 it be of the essence of the offence, 48 ; imperfectly stated, immaterial, 
 48 ; subsequent to the finding of the indictment, immaterial, 48; im- 
 possible day, or day that never happened, 48. How proved, 198 ; 
 need not be proved as laid, 198 ; exceptions, 198. 
 
 Title, concealment of instrument material to, from purchaser or mortgagee 
 by vendor or mortgagor, his solicitor or agent, 358, 359 ; falsification of 
 pedigree upon which title depends, 358, 359. 
 
 Title to goods, document of, what, 370 ; stealing, etc., 370. 
 
 Title to lands, document of, what, 357 ; stealing, destroying, etc., statute, 
 357 ; indictment, 357 ; punishment, 358 ; evidence, 358. See " Docu- 
 ment of Title to Lands." 
 
 Toll-house. See " Turnpike.'' 
 
 Tombstone, inscription on, how proved, and in what cases evidence, 260. 
 
 Trade, offences against public, 864. 
 
 Trade, buildings used for the purpose of carrying on, setting fire to, statute, 
 503, 504 ; indictment, 507 i punishment, 508 ; evidence, 508. Riotously 
 demolishing, pulling down, or destroying, or beginning to do so, statute, 
 523; indictment, 524; punishment, 524; evidence, 524. Riotously 
 injuring or damaging, statute, 523, 524. 
 
 Trade, assault in pursuance of unlawful combination or conspiracy respect- 
 ing, statute, 685. 
 
 Trade, committee of privy council for, proclamation, order or regulation 
 issued by, how proved, 262. 
 
 Trade marks, counterfeiting, 878 ; statute relating to, 878 ; construction of 
 terms, 878 ; forging trade marks, etc., 878 ; applying forged trade 
 marks, etc., 879 ; alterations of, deemed to be forgeries, 879 ; descrip- 
 tion in indictments, 880 ; intent to defraud any particular person need 
 not be stated or proved, 880 ; abettors, etc., 881 ; punishments, 
 etc., 881 ; limitation of proceedings, 881 ; short title of act, 881. 
 
 Training and drilling to use of arms, 785; statutes, 785. Dispersion of 
 meetings, etc., 785. Limitation of prosecutions, 786 ; indictment, 786 ; 
 punishment, 786 ; evidence, 786. 
 
 Traitorously, requisite in an indictment for treason, 60. 
 
 Transfer of Land Act, frauds against, 609. 
 
 Transfer of property, making or causing to be made, with intent to defraud 
 creditors, 871. 
 
 Transportation or penal servitude, being at large during a sentence of, sta- 
 tutes, 805 ; indictment, 807 ; venue, 805 ; punishment, 807 ; evidence, 
 807. 
 
 Transportation, penal servitude instead of, statute relating to, 172 ; and see 
 the punishments, passim. 
 
 Traverse of an indictment, no longer allowed, 93. Postponement of trial, 
 power of courts to order, 93, 
 
1040 Index. 
 
 Traverse. See " General Traverse." 
 
 Treason, 719; statutes, 719; punishment. 721. Indictment for compassina: 
 the Queen's death, 720; evidence, 723. Count for levying wrar, 725; 
 evidence, 726. Count for adhering to the Queen's enemies, 727; evi- 
 dence, 729. Count for conspiring to incite foreigners to invade the 
 realm, 729 ; evidence, 730. Forms of other counts on stat. 36 G. 3, 
 c. 7, s. 1. .730. Felonious compassing to levy war, 730 ; statute, 730. 
 Limitation of prosecutions, 731; overt acts, 731; indictment valid, 
 though facts amount to treason, 732 ; punishment of accessories, 732 ; 
 no costs to prosecutor or witnesses, 732; indictment, 732; punishment, 
 733 ; attempts to injure or alarm the Queen, 733 ; statute, 733 ; in- 
 dictment for presenting a pistol at the Queen, 734; punishment, 734; 
 evidence, 734. Aiders and abettors of treason, 727. No accessories 
 in treason, 952, 956. Bail in cases of treason, 88. Person convicted 
 of treason may be condemned to pay costs of prosecution, 177a; how 
 such costs may be recovered, 177a. Attainder, corruption of blood, 
 forfeiture and escheat for treason abolished, 177. Effect of conviction 
 for treason on capacity for holding office, etc., and exercising certain 
 civil rights, 177. 
 
 Treasure trove, concealment of, 794; not the subject of larceny, 318. 
 
 Treasury, costs of coinage prosecutions conducted by the, 743. 
 
 Treasury, commissioners of, proclamation, order, or regulation issued by, 
 how proved, 262, 263; forgery of instrument of proof of, 602. 
 
 Tree, sapling, shrub, or underwood, growing in parks, pleasure grounds, 
 gardens, orchards, or avenues, or grounds adjoining to or belonging to 
 a dwelling-house, value above £1 — stealing, cutting, breaking, rooting 
 up or otherwise destroying or damaging, with intent to steal, statute, 
 361; indictment, 361; punishment, 361; evidence, 361. The like 
 offence, but where the trees, etc. grow elsewhere, and the value is above 
 £5, statute, 361 ; indictment, 362. The like offence, after two pre- 
 vious convictions, wherever the trees, etc. may be growing, and the 
 value amounts to Is., statute, 363; indictment, 363. Maliciously 
 cutting, etc. any tree, etc. growing in any park, pleasure-ground, gar- 
 den, orchard or avenue, or in any ground adjoining or belonging to any 
 dwelling-house, injury exceeding £l, statute, 548; indictment, 549. 
 The like offence, but where the trees, etc., grow elsewhere, and the 
 injury exceeds £5, statute, 549 ; indictment, 550. The like offence, 
 after two previous convictions, wherever the trees, etc. may be growing, 
 and the injury amounts to Is., statute, 550; indictment, 551. 
 
 Trench. See " Mine." 
 
 Trial, where it takes place, 94 ; when, 93 ; changing place of, 94. 
 
 Trial, 140; arraignment, 140; mode of arraignment where indictment 
 charges previous conviction, 143; oath to jury where prisoner stands 
 mute, 141; where prisoner is non compos, 141; form of record, 142; 
 proceeding on trial of a person non compos, 21; arraignment where 
 previous conviction, 143; defence in forma pauperis, 143; jur}', 145; 
 qualifications, 145; exemptions, 146; jury when crown case tried at 
 Nisi Prim, 149 ; special jury, 149 ; tales, 150 ; jury de medietale lingua 
 abolished, 150; challenge of jurors, 150 — 158; giving prisoner in charge 
 tothejury, 158; case for prosecution, 159; defence, 160; reply,161 ; bill 
 of exceptions, 161 ; adjournment of trial, 162 ; discharge of jury where 
 they cannot agree to their verdict, 168; verdict, 163; arrest of judg- 
 ment, 170; process after verdict, and before judgment, 170; judgment, 
 170. 
 
 Trial of accessories, 12, 16, 950—958. 
 
 Trial for larceny, etc., before justices in petty sessions, 309 et seq. 
 
 Trial, new, in what cases, 178 — 181. See " Practice," sect. 13. 
 
 Trial of civil action, proved by production of Nisi Prius record, 242. 
 
 Trial of indictment, how proved on indictment for perjury, statute, 811. 
 
 Trick, larceny by, 333—340. 
 
Index. 1041 
 
 Trustee, meaning of, in Larceny Act, 462. 
 
 Trustee in bankruptcy, appointment of, how proved, 248; trustee in case 
 of liquidation by arrangement, appointment of, how proved, 249. 
 
 Trustees, fraudulent appropriation of property by, statute, 462 ; indictment, 
 463 J punishment, 463 ; evidence, 463 ; sanction required for prosecu- 
 tion of, statute, 462. 
 
 Tumult. See " Riot." 
 
 Turf. See " Stacks." 
 
 Turnpike-gate, wall, chain, rail, post, bar or other fence belonging to a 
 turnpike-gate, or house, building, or weighing engine, throwing down, 
 levelling, or destroying, statute, 542; indictment, 542 ; punishment, 
 542 ; evidence, 542. 
 
 Turnpike-road, property belonging to, how described, 44. 
 
 Turnpike-road, fine for non-repair of, 898. 
 
 U. 
 
 Undertaking for payment of money, etc., forging or uttering, statute, 580; 
 forging or uttering indorsement or assignment thereof, statute, 580. 
 
 Underwood. See " Tree." 
 
 Underwriter. See "Ship." 
 
 Undue influence at parliamentary elections, within what time prosecution 
 for must be commenced, 74 ; costs of prosecution for, 296 ; not triable 
 at quarter sessions, 105 ; form of indictment for, 52 ; holding of elec- 
 tion, how proved on trial for, 261. 
 
 Ungrammatical language does not vitiate indictments, 54. 
 
 Union Assessment Committee, false evidence before, 828. 
 
 University, building belonging to, setting fire to, statute, 504; riotously 
 demolishing, pulling down or destroying, or beginning to do so, statute, 
 523; riotously injuring or damaging, statute, 523, 524. 
 
 Unknown person, goods of, or injury to the person of, how described in 
 an indictment, 46 ; evidence to support it, 203. 
 
 Unlawful oaths, 778. See " Oath." 
 
 Unlawful assembly, what, 842, 843. 
 
 Unlawful combinations respecting trade, assaults arising from, statute, 685 ; 
 indictment, 686 ; punishment, 686 ; evidence, 686. 
 
 Unlawfully wounding, statute, 663 ; indictment, 668 ; punishment, 668. 
 Conviction of misdemeanor of unlawful wounding, upon trial for felony, 
 statute, 648. 
 
 Unnatural offence. See " Sodomy." 
 
 Unnatural practices, obtaining money under a threat of charging with, 411, 
 414 i indictment for threatening to accuse of, 425. 
 
 Utensil. See " Fixtures." 
 
 Uttering. See "Coin," "Forgery." 
 
 Vaccination Act of 1867, signing false certificates or duplicates under, 828. 
 
 Valuable security, meaning of, in Larceny Act, statute, 302; not subject 
 of larceny at common law, 317 ; statute relating to larceny of, other 
 than a document of title to lands, 370 ; for any fraudulent purpose de- 
 stroying, cancelling or obliterating the whole or any part of, other than 
 a document of title to lands, statute, 370 ; indictment for stealing 
 valuable security other than a document of title to lands, 371; punish- 
 ment, 371 i evidence, 371 : inducing person to execute, by force, etc., 
 
1042 Index. 
 
 statute, '112 ; inducing person to execute by false pretences, 469, 4-85. 
 See " Document of Title to Lands." 
 
 Value need not be stated in indictment where not of the essence of offence, 
 59 ; variance in pleading, and proof, 58. 
 
 Variance, in respect to time, in general immaterial, 198; exceptions to this 
 general rule, 198; in respect to place, in general immaterial, 199; 
 exceptions to this general rule, 199; where place stated as matter of 
 local description it must be proved as laid, 200; in respect to the 
 offence charged, 201 ; facts must be proved as laid, 201 ; examples of 
 this rule, 201 ; sufficient, if evidence agree in substance with allegation 
 in indictment, 202 ; where it is not necessary to prove offence to the 
 whole extent laid, 210 ; allegations not essential to constitute offence 
 do not require proof, 212 ; names of persons against whom offence com- 
 mitted must be proved as laid, 202 ; examples of this rule, 202 ; where 
 name proved idem sonans with that laid, variance in spelling imma- 
 terial, 203 ; variance between records adduced in evidence and indict- 
 ment, 203; variance between written instrument adduced in evidence 
 and indictment, 205 ; where words the gist of the offence they must be 
 proved as laid, 205. See "Amendment of Variance." 
 
 Vegetable. See " Fruit." 
 
 Vegetable produce, cultivated. See " Crops," " Stacks." 
 
 Vehicle, doing bodily harm to any person by furiously driving, statute, 677; 
 indictment for, 677 ; punishment, 677 ; evidence, 677. 
 
 Vendor. See " Seller." 
 
 Venire facias. See " Practice." 
 
 Venue, general common law rule, 25 ; many exceptions to this rule, 25; in 
 indictments for extortion, 25 ; for plundering wrecks, 25 ; for assault- 
 ing, etc. officers of the excise, and for offences against the customs, 
 25 ; for robbing mails, stealing letters, and embezzling notes, 25 ; for 
 endeavouring to seduce soldiers from their allegiance, 26 ; for forgery, 
 26; for offences against the stamp duties, 26; for coining, 26; for 
 bigamy, 26 ; for escapes, etc., 26 ; for being at large before the expira- 
 tion of sentence of transportation or penal servitude, 26; for embezzle- 
 ment in the public service, 26; for felonies, etc. in Wales, 26; for 
 offences within the county of a city, 27 ; for offences committed within 
 jurisdiction of Central Criminal Court, 28 ; for offences committed out 
 of the realm, 28, 29; for offences within the jurisdiction of ihe admi- 
 ralty, 30 ; for offences on the high seas, 30, 32 ; for forcing sailors on 
 shore, etc., 33 ; for murder or manslaughter, where the act and death 
 are in different countries, etc., 33; for offences on the boundaries of 
 counties, or begun in one county and completed in another, 33; for 
 murder or manslaughter where blow in one county and death in an- 
 other, 33 ; where the act is done in one county and the goods are car- 
 ried into another, 33 ; for offences committed during a journey or voyage, 
 35 ; for treason, 35 ; for conspiracies and other misdemeanors, 35 ; for 
 embezzlement, 35; against accessories before the fact, 36; against 
 accessories after the fact, 36; against receivers, 36; where property 
 is stolen in one part of the United Kingdom, and had or received in 
 another part, statute, 306, 36. See the different Titles. 
 
 Venue, no indictment insufBcient for want of proper or perfect, 37 ; not 
 necessary to state venue in body of indictment, 49 ; jurisdiction 
 named in margin of indictment to be the venue for all facts stated in 
 body thereof, 49 ; where local description required, such local descrip- 
 tion to be given in body of indictment, 49. See " Local Description." 
 
 Verdict, 163; form of entry of verdict on the record, 167; improper or 
 repugnant verdict, 165; special verdict, 164 ; discharge of jury where 
 the jurors do not agree, 168—170; process after verdict and before 
 judgment, 170 ; how proved, 241, 242. 
 
 Vessel in haven, port, navigable river or canal, stealing from, 407. See 
 "Ship." 
 
Index. 1043' 
 
 Vexatious indictments, act fur prevention of, 4 j to what offences it extends, 
 
 4; decisions upon, 5 ; amendment of, 6. 
 Viaducts, pulling down or otherwise destroying or injuring, statute, 540. 
 Vi et armis. See " With Force and Arms." 
 Violent presumptions, 235. See "Presumptive Evidence." 
 Voir dire, examination of witnesses on, 299. 
 Voluntary escape, indictment against a gaoler for a, 797. 
 Voluntary manslaughter, what, 623. 
 " Voluntary Confessions" 223 et seq. 
 Voluntary oaths, administering, 829. See " Oath." 
 Voters, personation of, at parliamentary and municipal elections, 615. 
 Voyage, 35. See " Venue." 
 
 W. 
 
 Wad. See " Mine." 
 
 Wages, assault in pursuance of unlawful combination or conspiracy to raise 
 rate of, statute, 685; indictment, 686. 
 
 Waggon-way. See " Mine." 
 
 Wales, venue In indictment for offences committed in, 26. 
 
 Wall. See " Fence." 
 
 Wall of the sea, breaking down, etc., 538. See " Malicious Mischief." 
 
 War, articles of, require no proof, 239. 
 
 War, levying, 725 ; direct, 726 ; constructive, 726. Indictment for levying 
 war, 725 ; evidence, 726. 
 
 War, felonious compassing to levy, etc., 730. See " Treason." 
 
 War department stores, unlawful possession, etc. of, statute, 789 ; indict- 
 ment, 793; evidence, 793. 
 
 Warehouse, breaking and entering, and committing felony in, statute, 397 ; 
 indictment, 398 ; punishment, 399 ; evidence, 399. Committing felony 
 in and breaking out of, 397. Breaking and entering with intent to 
 commit felony therein, 398. Setting fire to, statute, 503 ; riotously 
 demolishing, pulling down, or destroying, or beginning to do so, statute, 
 523 J riotously injuring, or damaging, statute, 523, 524. 
 
 Warrant for the payment of money or delivery or transfer of goods, stealing, 
 370; forging and uttering, 580. 
 
 Warrant of deliverance, 87 ; and form of it, 87. See " Practice." 
 
 Warrant of attorney. See " Courts of Record ," " Forgery." 
 
 Warren, taking hares or rabbits in, statute, 388. See " Hares " " Rabbits." 
 
 Water-way. See " Mine." 
 
 Way. See " Highway." 
 
 Weighing-engine. See " Turnpike." 
 
 Weir. See ** Nuisance." 
 
 Wharf, stealing from, statute, 407, 408 ; indictment, 409 ; punishment, 409 ; 
 evidence, 409. Destroying, etc., statute, 538. 
 
 Whipping, limitation of sentence of, under Larceny Act, 308 ; under Mali- 
 cious Injuries to Property Act, 507 ; under Offences against the Person 
 Act, 619 ; may be inflicted for offences punishable under 7 & 8 G. 4, 
 c. 28.. 173 ; court empowered to direct in cases of robbery, etc. with 
 violence, 410 ; in cases of attempts to strangle, etc., 669; on conviction 
 of felony committed after previous conviction of felony, 959, 960 ; of 
 females, abolished, by 1 G. 4, c. 57, s. 2. 
 
 Wife, in what cases excused by the coercion of her husband, 22. Crime 
 committed by her in his presence, 22. Crime committed by her in his 
 absence, but by his procurement, 22. Treason and murder committed 
 by wife in husband's presence, 23. Marriage of wife indicted jointly 
 with her husband, when she need not prove it, 23 ; what evidence suffi- 
 
■1044 Index. 
 
 cient where proof necessary, 24. May be indicted jointly with hus- 
 band for keeping bawdy-house, 23 ; or gaming house, 23 ; or for an 
 assault, 23 J semble, that she may be found guilty with the husband in 
 all misdemeanors, sed queere, 23 ; cannot, with her husband alone, be 
 found guilty of conspiracy, 23 ; not liable for receiving stolen goods 
 from husband, 23 ; nor for harbouring him after committing felony, 23 1 
 nor for his breach of duty, 23. Wife of prisoner cannot be a witness 
 for her husband, 274. In what cases she may be a witness against 
 him, 275. Wife of prosecutor may be witness either for crown or 
 defendant, 275. Wife cannot be guilty of larceny by taking the goods 
 of her husband, 328. Sec "Avowterer." She may justify a battery, 
 661 ; or even a homicide, 631 — in defence of her husband. Property 
 in goods stolen from, ought to be laid in husband, 42 ; unless there 
 has been a judicial separation, 42, 322 j or a protection order, 42, 322 ; 
 or unless the property is the separate property of the wife under 33 & 34 
 Vict. c. 93 (The Married Women's Property Act, 1870). Where 
 there is a burglary in house of, house should be described as dwelling- 
 house of husband, 493; exceptions, 493. See " Husband," " Married 
 Woman." 
 
 Will, codicil, or other testamentary instrument, stealing, destroying, or con- 
 cealing, statute, 355; indictment, 356; punishment, 356; evidence, 
 356. Indictment for stealing, etc., unnecessary to allege ownership, 
 355. Forging or uttering, 574 ; demanding money on forged, 555 ; 
 demanding money on probate, etc., knowing the will to have been 
 forged, 555. Will, material to title, concealment of, from mortgagee or 
 purchaser, by mortgagor or vendor, his solicitor, or agent, 358, 359. 
 
 Will of lands, how proved, 266 j probate of a will, in what cases evidence, 
 246. 
 
 Wire, telegraph, injuries to, 543 ; attempts, 543. 
 
 " With force and arms," these words unnecessary in indictment, 60. 
 
 Witness, attesting, not necessary to call, 264; unless instrument is one to 
 the validity of which attestation is requisite, 264. 
 
 Witness in custody, how brought up, 290. 
 
 Witnesses, when more than one witness requisite, 287, 288. See " Number 
 of Witnesses." How attendance of enforced, 288 — 291. See " Attend- 
 ance of Witnesses." Privilege of, from arrest, 290 ; not necessary to 
 tender their expenses, 289 ; exceptions to this rule, 289 ; when allowed 
 expenses in felonies, 291, 292, 294; in misdemeanors, 292, 293; in 
 offences against the coin, 293, 743 ; in offences against the bankrupt 
 laws, 872; rewards to, 295; expenses of witnesses for the prisoner 
 may be allowed in certain cases, 296; keeping witness away from 
 court, 291; intimidating witness, 291; incompetency of, 270 — 277. 
 See "Competency." Examination of, 296 — 301. See "Examination." 
 Ordering witnesses out of court, 296 ; at the request of either party, 
 296 ; at any period of the trial, 296 ; the attorney, although a witness, 
 will not be ordered out of court, 296 ; consequence of witness 
 not obeying order to leave court, 296; prosecutor not bound to call 
 witnesses on back of indictment, 296 ; but ought to have them in court, 
 297 ; and usually calls them that defendant may cross-examine them, 
 296; if he declines to do so, judge may call them, 297; judge may 
 question witnesses during progress of trial, 297; short mode of taking 
 evidence of witnesses in second prosecution against same party, 297 ; 
 what questions witness may refuse to answer, 278 — 280; list of witnesses 
 must be delivered to person charged with treason, 724; depositions 
 of, before magistrates and coroners, when evidence at trial, 249. See 
 " Depositions." Only allowed to speak of facts within their own know- 
 ledge, 298 ; except on matters of science, when their opinion is admis- 
 sible, 298; cannot read their evidence, 298; but may refresh their 
 memory from entries made by themselves shortly after occurrence, 
 298 ; other modes of refreshing memory, 298, 299 ; party producing 
 
Index. 1045 
 
 witness cannot impeach his credit by general evidence of bad cha- 
 racter, 284 ; but may under certain circumstances contradict him, 284 ; 
 or prove that he has made inconsistent statement, 284 ; how credit of 
 witness impeached by opposite party, 277—287 ; by showing his want 
 of knowledge of the facts, 277 i that he is interested, 278 ; by proving 
 his general bad character, 278 ; but not any particular offence, 278 ; 
 by cross-examining him as to any particular offence, 278, 279 ; witness 
 not bound to answer to such question if it would criminate him, 279 ; 
 his mere assertion that it would criminate him not sufficient, 279 i this 
 excuse for not answering taken away by pardon, 279 ; witness bound 
 to answer questions not tending to criminate him, although affecting his 
 character, 280 ; may be asked whether he has been convicted of felony 
 or misdemeanor, 280 ; if he denies it, or refuses to answer, conviction 
 may be proved, 280 ; evidence of general bad character of witness may 
 be met by evidence of general good character, 280 ; impeaching credit 
 of witness by cross-examining him as to statements inconsistent with 
 his evidence, 281 ; proof of such statements on his denial, 281 ; where 
 such statement made in writing, 281. 
 Women, abduction of, 698; procuring woman under twenty-one to have 
 illicit carnal connexion by false pretences, 707. See " Abortion," " Girl," 
 " Rape." 
 Wood, setting fire to, statute, 518 ; indictment, 520; attempting to set fire 
 to, statute, 518; stack of wood, setting fire to, statute, 518; attempting 
 to set fire to, statute, 518. 
 Wood-work. See " Fixtures." 
 
 Woollen goods, in process of, manufacture, stealing, statute, 406 ; indict- 
 ment, 406 ; punishment, 407 ; evidence, 407. 
 Woollen goods in the loom, etc., or other process of manufacture, cutting, 
 breaking or destroying, or damaging with intent to destroy or render 
 useless, statute, 526 ; indictment, 527 ; punishment, 527 ; evidence, 
 527 ; cutting, etc., or damaging any warp or shute of, statute, 526 ; 
 indictment, 527 ; punishment, 527 ; evidence, 527 ; entering a building 
 by force, to commit such offences, statute, 526 ; indictment, 528 ; 
 punishment, 528 ; evidence, 528. 
 Words, when the gist of an offence, must be set forth with particularity in 
 indictment, 57 ; variance between words laid and words proved, 
 205. See " Sedition," " Slander," " V.iriance'' In what cases treason, 
 722. 
 Words, merely, do not amount to an assault, 659 ; no provocation by words 
 
 merely will reduce act of killing from murder to manslaughter, 633. 
 Workhouses. See " Poor-house." 
 
 Workmen, assaults arising from combinations of, statute, 685. 
 Works of art in museums, etc., destroying or damaging, 553. 
 Worship, public. See " Disturbing." 
 Wounding, what, 547, 659, 664. 
 
 Wounding with intent to murder, statute, 648 ; indictment, 650 ; punish- 
 ment, 650 ; evidence, 650. 
 Wounding with intent to maim, etc., statute, 663 ; indictment, 663 ; punish- 
 ment, 664 ; evidence, 664. Unlawful wounding, statute, 663 ; indict- 
 ment, 668 ; punishment, 668 ; upon indictment for, defendant may be 
 convicted of common assault, 211, 668. Conviction of misdemeanor of 
 unlawful wounding upon trial for felony, statute, 648. 
 Wounding magistrates, officers, etc., saving wreck. See '' Officer." 
 Wounding officers in the army, navy or revenue, in the execution of their 
 
 duty. See " Officer." 
 Wreck, stealing from, statute, 384; destroying, statute, 536; impeding 
 person saving his own or another's life from, statute, 679; assaulting 
 magistrates, etc., engaged in saving, statute, 678. See " Officer," 
 "Ship," ^'Shipwrecked Goods." 
 Writ. See " Courts qf Record." 
 
 W. Z Z 
 
1046 Index. 
 
 Writ, how proved, 242. 
 
 Writ of error, 186—197. See " Error, Writ of," " Practice," sect. 15. 
 
 Writings, in what cases treason, 722. 
 
 Written instruments, how stated in indictments, dtc, 55; how. proved if 
 
 under seal, 264 ; how, if not under seal, 266. See " Variance.". 
 Written instruments, larceny, etc. of, 357, 370. 
 
 Yarn, stealing woollen, linen, hempen or cotton, in process of manufacture, 
 406. Sj 
 
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